Jurisdiction at heart of al-Bashir appeal

The Sudanese leader is wanted by the ICC for charges including genocide and crimes against humanity.

FILE: Sudanese President Omar al-Bashir. Picture: AFP.

PRETORIA - The question of whether South African courts still have jurisdiction in the matter of Sudanese president Omar al-Bashir has formed the thrust of government's application to appeal an earlier ruling.

A full bench led by Judge Dunstan Mlambo has heard the application in the High Court in Pretoria.

In June, the bench ruled that government was bound by commitments to the International Criminal Court (ICC) to arrest the Sudanese president but then it emerged that he had already left the country.

He is wanted by the ICC on several charges including genocide and crimes against humanity.

Government advocate Jeremy Gauntlett has argued that the court still has jurisdiction in the al-Bashir matter despite him having left the country.

He argued that as the court was at the time seized with the decision on the basis that the president was in the country, the appeal court should deal with that.

Gauntlett further argued that al-Bashir may return to the country and be subject to the findings of the ruling.

Southern African litigation centre advocate Wim Trengove argued that the court's jurisdiction ceased when the president left the country.

He says the question is whether there is a live question between the parties - which there isn't - and added that the courts don't settle academic matters.

Meanwhile, government wants to appeal the decision on Sudanese president because it's worried that the precedent set could have implications for other heads of state visiting South Africa in similar circumstances.

Gauntlett has argued the previous ruling could have implications in the future.

"In terms of the presidential important effect of the order the court has made, it could bite other people who are in that position of being Heads of State against whom warrants of arrest in the future are procured."

But Trengove says the matter is purely academic and not something for the courts to rule on.

"The issue was whether the government had a duty to arrest the general, any debate about that issue disappeared the moment the general left the country."