Legal Update | South African High Court refuses government application for leave to appeal the Al-Bashir decision

16 September 2015 – In June 2015 a full bench of South Africa’s High Court (Gauteng Division, Pretoria) issued a judgment holding that the government’s failure to arrest Sudanese President Omar Al-Bashir was unconstitutional. The government sought leave to appeal this decision. Today, the High Court refused the government’s application for leave to appeal, with costs.

The case stems from the South African government’s failure to arrest Al-Bashir in June 2015, when he was in Johannesburg for an African Union Summit. At the time, the Southern Africa Litigation Centre brought an urgent application to the Gauteng High Court, attempting to compel the government to arrest Al-Bashir and surrender him to the International Criminal Court.

On 15 June 2015 the High Court ordered the government to take all reasonable steps to arrest and detain Al-Bashir. This followed an interim order of similar terms issued by High Court Judge Fabricius the day before, which mandated the Director General of Home Affairs to effect service of the Court’s order on each official in charge of every point of entry to and exit from the country. Nevertheless, Al-Bashir was somehow able to depart on 15 June.

Upon learning of Al-Bashir’s departure, the Court ordered the government to file an affidavit within seven days explaining how Al-Bashir was able to leave in spite of the Court’s clear prohibition against his departure.

The following week, on 24 June 2015, the High Court issued a judgment condemning the South African government for its disregard of the Court order and failure to detain Al-Bashir, stating that such failure was a clear violation of the law. The Court voiced its concerns about the executive’s seeming disregard for the rule of law, noting: “A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders.”

Today’s decision determined that the twelve government respondents may not appeal the 24 June 2015 judgment. The government now has the option of petitioning South Africa’s Supreme Court of Appeal or applying to South Africa’s Constitutional Court for leave to appeal against the 24 June 2015 High Court judgment.