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Bloemfontein – The State will have to wait a while to find out if the Supreme Court of Appeal will overturn a high court ruling that government's failure to arrest Sudanese President Omar al-Bashir was inconsistent with its constitutional duties.
"The court will take a while to consider all the arguments and the leave to appeal and judgment will be given on merits," said Judge Carole Lewis.
Earlier on Friday, Jeremy Gauntlett, for the State, had to work hard to try to convince five SCA judges why Bashir had enjoyed full immunity while he was in the country.
Gauntlett argued that government was not obliged to arrest the Sudanese president.
He said Bashir was in the country in his capacity as a member of the African Union and that heads of state may be arrested only once their terms of office ended or when they waived immunity.
Lewis said the high court was not asked to prosecute Bashir, but was rather asked to order his arrest.
The SA Litigation Centre told the court that South Africa was supposed to be committed to bringing suspects of war crimes to book.
When Bashir entered South Africa last June for an AU summit, the centre approached the high court for an order that government enforce an International Criminal Court arrest warrant on him.
On June 15, the High Court in Pretoria ordered the government to arrest Bashir and said its failure to do so would be unconstitutional. Despite this, Bashir was allowed to leave the country.
The litigation centre's lawyer, Wim Trengove, argued that the country should not be a safe haven for people accused of crimes against humanity.
"It is absurd to argue you can arrest a head of state accused of crimes by the ICC only if he waives his immunity," he said.
South Africa is a signatory to the ICC's Rome Statute, which sets out the crimes falling within the ICC's jurisdiction and the procedures and the mechanisms for states to co-operate with the court.
The ICC had two outstanding warrants for Bashir, issued in 2009 and 2010. It wants him to stand trial on allegations of crimes against humanity, genocide and war crimes committed in Sudan’s western province of Darfur.
