Al-Bashir debacle: Judges dismiss government's application with costs

The judges denied govt's application for leave to appeal its ruling.

FILE. Plane with call sign Sudan 01 taking off from Waterkloof Air Force Base just before midday on 15 June 2015. Alet Pretorius/Beeld/Netwerk24.

PRETORIA - A full bench of three judges in the High Court in Pretoria has denied government's application for leave to appeal its ruling that the failure to arrest Sudanese President Omar al-Bashir was unlawful and unconstitutional.

BREAKING #AlBashir application for leave to appeal has been dismissed with costs. BB

In June, the bench ruled that government was bound by commitments to the International Criminal Court (ICC) to arrest al-Bashir who was visiting South Africa to attend the African Union Summit.

The Sudanese president is wanted by the ICC on several charges including genocide and crimes against humanity.


Judge Hans Fabricius reiterated that government had a legal duty to arrest the Sudanese president and hand him over to the ICC where he faces charges including genocide.

While Fabricius delivered the ruling, it is fully supported by Judge President Dunstan Mlambo and his deputy Judge Aubrey Ledwaba.

The bench reiterated that al-Bashir enjoyed no immunity from arrest as a serving head of state.

"We are not of that opinion, and for the reasons stated in our judgement, President al-Bashir enjoyed no immunity from arrest or from prosecution on the customary international law as a serving head of state," Fabricius said.

He adds when the Rome Statute was domesticated, its provisions trumped those of the Immunities Act, which government believed exempted al-Bashir.

He says leave to appeal may only be granted if the court believes there is a reasonable prospect of success.

"This statute shall apply to all persons without any distinctions based on official capacity."

The justice department says it will study the judgment before commenting on its merits.

The court further found that the matter is now purely academic because al-Bashir has already left and any appeal would have no practical effect.

While the Southern Africa Litigation Centre has welcomed the judgment, the Justice Department says it will study it to determine whether there is scope to petition the Supreme Court of Appeal directly.