Compiled by Barbara Whittle

At the end of October and early in November 2016, the Law Society of South Africa (LSSA) spoke out publically against the government’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC); then welcomed the decision by the National Director of Public Prosecutions (NDPP) to withdraw charges against the Minister of Finance, Pravin Gordhan, and then also welcomed the Gauteng Division of the High Court order that the Public Protector’s State of Capture report should be published.

In welcoming the order by the Gauteng Division of the High Court that the Public Protector’s report on the State of Capture had to be released by the Office of the Public Protector, on 2 November,  the LSSA urged the court to consider punitive costs against the President for bringing what was patently an unfounded application to interdict the release of the report and then withdrawing it. ‘The cost of all the teams of counsel should not be borne by the taxpayer,’ said LSSA Co-chairpersons Mvuzo Notyesi and Jan van Rensburg.

The LSSA also welcomed the remedial action by the previous Public Protector, advocate Thuli Madonsela, that the President was to appoint a commission of inquiry within 30 days headed by a judge solely selected by Chief Justice Mogoeng Mogoeng.

In addition, the LSSA welcomed the fact that the Portfolio Committee on Justice and Correctional Services had called National Director of Public Prosecutions (NDPP), advocate Shaun Abrahams, to brief it on the developments in the National Prosecuting Authority and specifically the withdrawal of charges against Finance Minister Gordhan.

On 31 October, the LSSA welcomed the belated decision by the NDPP, Mr Abrahams, to withdraw charges against Finance Minister Gordhan, Oupa Magashula and Ivan Pillay. ‘The LSSA, however, remains gravely disappointed that a matter of this magnitude and implications was decided clearly without first obtaining all the necessary information and that the charges were instituted in the first place. The action of bringing the charges and then dropping them appears to be consistent with the public perception that there is a politically motivated link,’ said Mr Notyesi and Mr van Rensburg.

The LSSA urges Mr Abrahams to consider his position in the light of the severe consequences his actions had on South Africa’s (SA) economy.

The Co-chairpersons added: ‘Mr Abrahams seems oblivious to and unrepentant for the damage – both at home and internationally – caused by the unsubstantiated charge of fraud brought against the country’s sitting Minister of Finance by the country’s prosecution services. Mr Abrahams himself announced the intention to institute charges at a public press conference. It would be fair to assume that the NDPP would have gone out of his way in this matter, but also in all matters – be they high profile or routine matters – to ensure that all relevant information had been reviewed and that criminal intent had been established. However, when the charges relate to fraud or theft by a high profile individual such as the Minister of Finance, the NDPP should have made doubly certain of the facts before inflicting the trauma he has on the economy, the image of the country as well as on the public. Mr Abrahams made the public announcement, he should take responsibility for bringing the National Prosecuting Authority, the criminal justice system and the country into disrepute.’

The LSSA called on Parliament to initiate an investigation into the actions of the Directorate for Priority Crime Investigation – the Hawks – in this matter, as well as in other cases involving high-profile persons. Alternatively, the LSSA said the President should consider a judicial commission of inquiry into the actions of the Hawks. ‘Failing that, and as it stands, it is doubtful whether the Hawks, as an institution, have the public trust,’ said the Co-chairpersons.

ICC

On 25 October, the LSSA added its voice to those calling on the South African government to reconsider its withdrawal from the ICC. The LSSA said it was gravely disappointed at the unilateral decision by the government to initiate SA’s withdrawal process from the Rome Statute of the ICC by executive act. ‘This raises serious concerns about our government’s interpretation of its commitment to fighting impunity and providing accessible forums for victims of crimes against humanity and human rights abuses by those in power,’ said Mr van Rensburg and Mr Notyesi.

They added: ‘As we have said previously, we are currently in the fortunate position of having a strong and independent judiciary and other institutions supporting democracy. We can turn to these to challenge abuses of power by the state. However, this may not always be the case in future. Our Government appears hell-bent on closing and impeding access to regional, continental and international courts should a time come when South Africans can no longer rely on domestic remedies.’

The LSSA aligned itself with the statement by the International Bar Association that, ‘South Africa was one of the leading African countries in establishing the permanent court with a mandate to address atrocity crimes, yet it may be one of the earliest to walk away. If this decision holds, it would be an extraordinary and detrimental development for both international justice and for South Africa.’

In considering the preamble to our local Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 –

‘Mindful that –

• throughout the history of human-kind, millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law:
• the Republic of South Africa, with its own history of atrocities, has, since 1994, become an integral and accepted member of the community of nations;
• the Republic of South Africa is committed to – bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court … .’

The LSSA asked what had changed in our government’s commitment to the fight against impunity?

Mr van Rensburg and Mr Notyesi pointed out that the withdrawal from the ICC followed our government’s agreement to changes brought about in 2014 to the Southern African Development Community (SADC) Summit Protocol. As it now stands, the SADC Protocol deprives citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their government to the SADC Tribunal if they fail to find relief in their own courts. Only states can refer disputes to the SADC Tribunal. ‘The LSSA is challenging this in the Gauteng High Court,’ they said.

The LSSA also stressed that the African Court on Human and Peoples’ Rights (AfCHPR) had the potential to enforce human rights through proper judicial processes and has relative independence from political leaders. However, although SA had ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights on 3 July 2002, it has yet to submit a declaration accepting the competence of the AfCHPR to receive cases under art 5(3) of the protocol. At least two cases from SA had been brought before the AfCHPR, but the court had to dismiss these cases due to lack of jurisdiction in the absence of the declaration by our government, as the AfCHPR may not receive any petition under art 5(3) involving a state party, which has not made such a declaration.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2016 (Dec) DR 18.