Africa-Press – South-Africa. Hours before the SA government was due to answer the DA’s case that it has a legal obligation to arrest Russian President Vladimir Putin if and when he arrives in South Africa, it asked for another three days to give that answer.
This was despite the fact that the state had previously agreed that it would file its response to the DA’s application by Friday afternoon, during a meeting between all the parties in this politically-loaded case and Gauteng High Court in Pretoria Deputy Judge President Aubrey Ledwaba.
The opposition party’s lawyers were not happy with the government’s latest failure to respond to the Putin arrest case, which they said was the third time the state had not met a deadline to do so.
“Our client will oppose any application for an extension that prejudices the hearing of this matter on 21 July 2023, or affords it any less time than it has already been afforded to file its replying affidavit or heads of argument,” the DA’s attorney, Elzanne Jonker, stated in response to a letter sent to the party by the State Attorney on Friday morning.
The DA last month launched court action aimed at compelling the SA government to act on the warrant issued against Putin by the International Criminal Court (ICC) if and when he arrives in the country.
South Africa is an ICC member.
On 17 March, the ICC issued a warrant for Putin’s arrest on charges related to the alleged unlawful deportation and transfer of children from occupied territories of Ukraine to the Russian Federation, during Russia’s year-long invasion of Ukraine.
In an interview published by Russia Today in April, Kremlin spokesperson Dmitry Peskov reportedly said it would be difficult to imagine that anyone would dare act on the ICC warrant against Putin and that it was “unthinkable as Russia was one of the largest countries in the world and one of the biggest nuclear powers”.
In an application filed at the Gauteng High Court in Pretoria in late May, DA leader John Steenhuisen sought a declaration that the government was “duty-bound in terms of the Rome Statute and the Implementation Act to arrest President Putin upon his arrival in South Africa”.
Steenhuisen said it was clear that “as a state party to the Rome Statute” of the ICC, South Africa “is obliged by both the Rome Statute and the Implementation Act 27 of 2002… to arrest any person for whom the ICC has issued an arrest warrant and requested the arrest and surrender of, if that person enters South Africa’s territory”.
He added:
While noting that President Cyril Ramaphosa and various relevant government departments had agreed to file their response to the DA’s application by Friday, State Attorney representative Joseph Sebelemetsa told Jonker that for “practical reasons” they were now “unlikely” to be able to do so.
These “practical reasons”, according to Sebelemetsa, included the fact that the president “is engaged in various international commitments which require travel abroad” and “requires more time to engage with and respond to the DA’s application”.
“As you would be aware, numerous government respondents have been cited as respondents in this matter. Wide-ranging consultations are required with a number of government officials from the offices of the cited government respondents,” Sebelemetsa said.
“Many of the officials with whom consultation is required are currently unavailable due to prior engagements,” he added.
Jonker was unconvinced.
“I note that this is the third time your clients have failed to comply with a deadline. They were required by the notice of motion to file their answering affidavit on 11 June 2023. On 14 June, your clients committed in correspondence to file their answering affidavit on 21 June 2023,” she wrote in response to Sebelemetsa’s letter.
She added that Ramaphosa and the various ministers cited in the DA’s application – including Justice Minister Ronald Lamola, Police Minister Bheki Cele, Dirco Minister Naledi Pandor and Deputy President Paul Mashatile – “have repeatedly failed to comply with the rules, their own undertakings, and court directives”.
“Our client does not consent to your request for an extension. It is not within its power to grant such an extension to directives issued by [Ledwaba],” she said.
Jonker added: “If your clients require an extension, they must seek one from [Ledwaba]; and should not have waited until today to force the issue upon the DA for its consent, particularly where the reasons your client claims for the extension must have been known to it before today, and when your client would be well aware that our client’s legal team had reserved time and adjusted their diaries to meet the timelines imposed by [Ledwaba]”.
Impeccably placed sources said it was likely that the government would now formally ask Ledwaba for more time to respond to the DA’s case.
While the state insisted its failure to provide under oath answers on its Putin arrest obligations was purely logistical, its apparent inability to give those responses – before a deadline that it agreed to – will arguably be perceived as further evidence of its own geopolitical incoherence.
In its ruling on the SA government’s failure to act on the ICC warrant for the arrest of then Sudanese president, Omar al-Bashir, for alleged war crimes, the Appeal Court dismissed the government’s claims that it could not arrest him because he had been granted diplomatic immunity.
“When South Africa decided to implement its obligation under the Rome Statute by passing the Implementation Act, it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons,” Judge Malcom Wallis stated.
Writing on behalf of the court’s majority, Wallis was also scathing in its assessment of the SA government’s apparent defiance of an interdict that barred al-Bashir from leaving South Africa, until the Gauteng High Court in Pretoria had ruled on whether he could be arrested.
That defiance, committed during a period where high-level members of the ANC and the Jacob Zuma administration continuously attacked judgments delivered against the state as “counter-revolutionary” was widely regarded as one of the biggest threats to rule of law that ever faced South Africa.
It is clear that Ramaphosa’s administration is trying to find legal means to ensure that the potential Putin visit, planned as South Africa investigates whether the Russian Lady R ship received arms while docked in Simon’s Town, does not descend into such open defiance of the courts and international law.
As Helen Suzman Foundation head Nicole Fritz has noted, Lamola’s “recent pronouncements that South Africa is exploring the possibility of amending our law such that heads of state and other diplomatic immunities be accommodated indicates an intent to resolve this dilemma in a manner fully consonant with legal requirements, the rule of law and our integrity as a state”.
She added: “We are a very long way from the al-Bashir debacle, when South African officials simply thumbed their noses at our international legal obligations, and, in the face of an explicit court order to execute the arrest of al-Bashir and surrender him, facilitated the flight of a fugitive.”
The DA’s case will now, however, force the state to make that potential legal manoeuvring far more visible and public – particularly given Steenhuisen’s accusation that the government’s public pronouncements create a reasonable apprehension that the government intends to act unlawfully in regard to the potential Putin visit.
“It appears that the government is seeking a mechanism to allow President Putin to attend the BRICS summit, without arresting him,” he added, in apparent reference to the comments made by Lamola.
Steenhuisen argued:
The DA leader wanted the High Court to direct Ramaphosa, Lamola, Cele, Pandor and Mashatile, among other high-level officials, “to comply with their obligations under the Implementation Act and the Constitution to ensure President Putin’s arrest if he arrives”.
That obligation, he said, arises “immediately” once the ICC sends South Africa a request for arrest and surrender.
“Having issued a warrant, the request to arrest and surrender is, in the circumstances of this case, a mere formality – if the ICC believes President Putin will be in South Africa, it will issue a request for South Africa to arrest him and surrender him to the ICC for prosecution,” Steenhuisen argued.
“In the circumstances, the only options legally available to the government are a) to ensure that President Putin does not visit South Africa while the arrest warrant is valid; or b) to arrest him the moment he arrives in South Africa, and surrender him to the ICC, pursuant to the Implementation Act.”
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