“Russia has made it clear that arresting its sitting president would be a declaration of war. It would be against our Constitution to risk engaging in war with Russia,” said President Cyril Ramaphosa.
“I have constitutional obligations to protect the national sovereignty, peace and security of the republic and to respect, protect, promote and fulfil the rights of the people of the republic to life, safety and security, among other rights in the Bill of Rights.”
In his affidavit, Ramaphosa said the government is obliged to keep confidential how it intends to process the matter.
The affidavit explains that South Africa has initiated Article 97 proceedings of the Rome Statute, which allows for consultation with the court if a problem is identified that could potentially impede or prevent the execution of an ICC request, such as a request to arrest and surrender an ICC suspect.
Read more in Daily Maverick: South Africa now looking to China to host BRICS summit, say officials
Further, he said the DA had prematurely taken the matter to the courts without having clarity about whether Putin will be attending the summit, scheduled for 22-24 August.
“No final decision has been made that he will in fact come to South Africa. As things stand, there is therefore no cognisable legal cause that could ever ground a mandamus to arrest and surrender President Putin.
“Cabinet has determined that the BRICS Summit will be held in a manner that assures that South Africa abides by its international and legal obligations,” said Ramaphosa.
“Discussions are held to make sure that this takes place. An order cannot be made on a speculative basis as the DA wishes. This should be the end of the application as the relief sought is incompetent. But it is necessary to correct the DA on the position of government.”
The president wanted his affidavit to remain confidential but the DA won its bid to reveal the contents of the document. The court said the affidavit could be released by Tuesday afternoon and all other supporting documentation by Wednesday.
“The answering affidavit, the replying affidavit, the letter from the state attorney of 17 July 2023 to the applicant’s attorney, and the heads of argument of all parties in the matter, shall be disclosed without qualification by uploading to the digital database of the Gauteng Division of the High Court of South Africa within two hours of granting this order and shall be accessible to everyone,” reads the court order.
The DA’s application to ensure South Africa arrests Putin should he visit the country will be heard on Friday at the Pretoria High Court.
“The applications of the Media Monitoring Group and of Human Rights Watch to be joined as amici curiae are granted. The heads of argument filed by the Media Monitoring Group were considered when granting this order. Human Rights Watch may file heads of argument as indicated in paragraph three of this order.”
The DA’s affidavit
In his affidavit, DA leader John Steenhuisen requests a three-part court order.
The first would be a general declaratory order setting out the government’s obligations under the Rome Statute which governs the operations of the ICC and the ICC Implementation Act – the South African law which domesticates the country’s ICC obligations into its own national law.
Second, Steenhuisen seeks an order confirming that the director-general of the Department of Justice, on receipt of a request from the ICC to arrest and surrender Putin, must forward the arrest warrant to a magistrate.
Steenhuisen also seeks to confirm that the other respondents to his application are obliged to ensure that Putin is arrested if he enters the Republic.
Read more in Daily Maverick: South Africa grants Putin diplomatic immunity for BRICS summit
In May, the government gazetted International Relations and Cooperation Minister Naledi Pandor’s notice for the Diplomatic Immunity and Privileges Act to be granted to all international officials at BRICS-related events in South Africa.
Clayson Monyela, spokesperson for the Department of International Relations and Cooperation, said Pandor’s notice was “routine”, and such notices were issued every time there was a similar international meeting in South Africa.
The notice, signed on 19 May and gazetted on Monday, states that Vladimir Putin and his international counterparts who will be in South Africa will be granted immunities and privileges provided in terms of Section 6(1)(a) of the Act.
However, this will not override the warrant issued by the ICC. DM