Government has asked that the Democratic Alliance’s application to set aside government’s decision to withdraw from the Rome Statute of the International Criminal Court be struck from the roll for lack of urgency.
The DA‚ and other non-governmental organisations‚ approached the high court in Pretoria a few weeks ago to set aside the decision taken by Cabinet in October to exit from the ICC.
They also want the court to order President Jacob Zuma and the ministers of justice and international relations and cooperation to revoke the notice of withdrawal without delay.
After hearing submissions from the DA‚ government‚ the Council for the Advancement of the South African Constitution‚ the Helen Suzman Foundation‚ the Southern Africa Litigation Centre and Centre for Human Rights‚ the full bench reserved judgment on Tuesday afternoon.
Jeremy Gauntlett SC said the application by the DA cut across the parliamentary processes that had been instituted by the executive.
These included the executive’s obtaining approval from Parliament for withdrawing from the ICC‚ and the repeal of a local law which incorporates the Rome Statute into South African law.
Gauntlett also said the notice of withdrawal had no irreversible consequences‚ as it was capable of deferral or withdrawal.
Gauntlett also took issue with the DA’s characterisation of the matter as the national executive “bypassing Parliament” or “acting precipitiously” in lodging the withdrawal notice.
Gauntllett said the decision was taken carefully and that the executive would always have approached Parliament to approve the withdrawal and the repeal of the Implementation Act.
“Parliament has indeed been approached immediately after the lodging of the notice of withdrawal. ”
However‚ counsel for the DA‚ Steven Budlender‚ said a notice of withdrawal had been sent to the United Nations and the effect was that the executive took a decision it did not have the power to take.
According to Justice Minister Michael Masutha in October‚ Cabinet took the decision to withdraw from the ICC because it made it harder for South Africa to pursue peace and security in Africa as the court stripped leaders of their diplomatic immunity.
The withdrawal from the ICC follows the controversial visit of Sudanese President Omar Al-Bashir last year. He visited the country to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC‚ which is seeking to try him for alleged war crimes.
The DA’s case was that the executive could not take a decision to withdraw without first obtaining the approval of the National Assembly.
It said a decision of this magnitude required proper democratic deliberation before any “rash” decisions were taken. The DA’s argument was that Cabinet took the decision to withdraw behind closed doors‚ without prior parliamentary approval and consultation with Parliament or the public.