597
IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO: 83145/2016 In the matter between:
DEMOCRATIC ALLIANCE Applicant and
MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent
SOUTH AFRICAN LITIGATION CENTRE Sixth Respondent
PROFESSOR JOHN DUGARD AND PROFESSOR GUENAEL METTRAUX Seventh Respondent
AMNESTY INTERNATIONAL LIMITED Eighth Respondent
PEACE AND JUSTICE INITIATIVE AND CENTRE FOR Ninth Respondent HUMAN RIGHTS
HELEN SUZMAN FOUNDATION Tenth Respondent 598 2
NOTICE OF SET DOWN - SPECIAL MOTION ROLL
BE PLEASED TO SET the above matter down on the roll for hearing on the Special Motion Roll on 05 AND 06 DECEMBER 2016 at 10:00 or as soon as thereafter as Counsel may be heard as per the directive of the Deputy Judge President of the aforementioned court dated 17 November 2016 annexed hereto as ANNEXURE "A".
DATED AT PRETORIA on this zrz:vl day of NOVEMBER 2016.
Elzanne Jonker Attorneys for the Applicant Tyger Valley Office Park Building Number 2 Cnr Willie van Schaar & Old Oak Roads BELVILLE Ref: DEM16/0300 JONKER!sw C/0 KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC. 220 Lange Street Nieuw Muckleneuk PRETORIA Tel: 012 452 8900 Fax: 012 452 8901 e-mail: [email protected]; [email protected] (REF: HUGO STRUWIG I VS I HS000056) 599 3
TO: THE REGISTRAR OF THE GAUTENG DIVISION, PRETORIA
AND TO: THE STATE ATTORNEY PRETORIA The First, Second and Third Respondents' Attorneys SALU Building 316 Thabo Sehume Street Pretoria Ref: 7641/2016/Z49 Tel: 012 309 1520 Fax: 086 507 0909 E-mail: [email protected] [email protected] Enq: J Meier (082 940 3938
AND TO: THE STATE ATTORNEY CAPE TOWN The Fourth and Fifth Respondents' Attorneys 22 Long Street Cape Town E-mail: [email protected] 600 4 6oo
AND TO: WEBBER WENTZEL Sixth Respondent's Attorneys 90 Rivonia Road. Sandton Johannesburg,2196 P.O. Box 61771, Marshalltown Johannesburg, 2107, South Africa Tel: 011 530 5539 Fax: 011 530 6539 Email: [email protected] Ref: Mr M Hathorn /3013964 C/0 BERNARD VANDER HOVEN ATTORNEYS 2"d Floor, Pare Nouveau Building 225 Veale Street Brooklyn Pretoria Ref: Elmari Robbertse Tel: 012 346 4243 Fax: 086 584 3261 E-mail: [email protected]
AND TO: PROFESSORS JOHN DUGARD AND GUENAEL METTRAUX Seventh Respondent C/0 Rosin Wright Rosengarten Le Val North Block, South wing Ground Floor 45 on Smuts Avenue ( Cnr the Valley Road) JOHANNESBURG Email: [email protected] I [email protected] 601 5 60(
AND TO: AMNESTY INTERNATIONAL LIMITED Eighth Respondent c/o Werksmans Attorneys 155 5th Street JOHANNESBURG Email: [email protected] Ref: D NAIDOO/PROB9999.526
AND TO: PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth Respondent C/0 Legal Resources Centre Floor 16, Bram Fischer Towers 20 Albert Street, Marshalltown JOHANNESBURG Email: [email protected]/[email protected] Ref: 1113715UMJ Power/ A Singh
AND TO: WEBBER WENTZEL Tenth Respondent's Attorneys 90 Rivonia Road Sandton Johannesburg,2196 Tel: 011 530 5422 Fax: 011 530 6422 Email: [email protected] Ref: V Movshovich I P Dela I D Cron I D Rafferty I M Spargo I K Tulsi I A De Meyer C/0 HILLS INCORPORATED ATTORNEYS 835 Jan Shoba Street (Duncan) Brooklyn Pretoria Tel: 087 230 7314 Ref: A Engelbrecht I L Pienaar 602 6
AND TO: NORTON ROSE FULLBRIGHT The Intervening Party's Attorneys
101h Floor Norton Rose House 8 Riebeeck Street Cape Town 8001 Tel: 021 405 1205 Fax: 021 405 5583 E-mail: [email protected] C/0 JACQUES VAN DER MERWE ATTORNEYS 719 Park Street Clydesdale Pretoria Tel: 012 751 0040 Fax: 086 511 9136 REF: J. VAN DER MERWE/pvN90/2016 603 17-11-16;01:38PM; ANN£l OFFICE OF THE DEPUTY JUDGE PRESIDENT HIGH COURT OF SOUTH AFRICA, GAUTENG PROVINCIAL DIVISION, PRETORIA North Gauteng High Court Building, Cnr. Madiba & Paul Kruger Strs, Room 7.15, Seventh Floor Tel. (012) 315 7576- Fai<. (012) 315 7600- Direct Fax- 0865612100- E-mail; [email protected] 17 November 2016 TO: MINDE SHAPIRO & SMITH INC Email: [email protected] Your ref: Hugo StruwigNS/HS000056 Our Ref: 83145/16/DJP.LEDWABNEG CC: THE STATE ATTORNEY, PRETORIA Email: [email protected] You're Ref: 7641/2016/249 Our Ref: 83145/16/DJP.LEDWABA/RS CC: THE STATE ATTORNEY, CAPE TOWN Email: [email protected] CC: WEBBER WENTZEL ATTORNEYS Email: [email protected] CC: ROSIN WRIGHT ROSENGARTEN ATTORNEY Email: [email protected]/ [email protected] CC: WERKSMANS ATTORNEYS Email: [email protected] CC: LEGAL RESOURCES CENTRE Email: [email protected] 604 17-11-16;01 :3BPM; # 21 4 CC: WEBBER WENTZEL ATTORNEYS F:mail: vlad [email protected] Dear Sir /Madam RE: DEMOCRATIC ALLIANCE I THE MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION & OTHERS- CASE NO: 83145/16 1. The abovementioned matter and our meeting on 16 November 2016 refers. 2. The matter is hereby set down for hearing on 5 & 6 DECEMBER 2016. You are directed to serve and file the notice of set down together with a copy of this letter attached to it within 7 (seven) days after receipt hereof. The notice of set down must be filed at the office of the Deputy Judge President, 71h Floor, Room 7.15, High Court Building. 3. I direct that: 3.1 The 1"1 to 3'd Respondents should file their supplementary affidavits by no later than 16h00 on 21 November 2016. 3.2 The Applicant should file its heads of argument, practice note and further affidavits, if necessary, by no later than 16h00 on 24 November 2016. 3.3 The 151 to srd Respondents should file their heads of arguments and practice nott'l hy no li'ltt'lr thAn 1flhOn nn 29 NnvAmhP.r 201fi 3.4 The 'Supporting Respondents' should file their heads of argument and practice note by no later than 16h00 on 25 November 2016. 4. The Legal Representatives of CASAC (Council for the Advancement of The South African Constitution) stated that it intends to file an application to be 17-11-16;01 :38PM; # 6053/ 4 admitted as amicus curiae. 4.1 CASAC should file its application and heads of argument by no later than 16h00 on 25 November 2016. 5. For convenience sake and for the proper management of the matter the documents should be filed at my office on the 7th floor and be emailed to ([email protected]). 6. The Applicant should deliver the court file in triplicate duly indexed and paginated to my office no later than 16h00 on 24 November 2016. 7. All queries and/or communications concerning the hearing of this matter must be directed to my office in writing and/or electronically 8. It remains the duty of the all legal representatives to ensure that the court file has been properly indexed and paginated in time and that all documents have been filed accordingly as directed at the office of the Deputy Judge President, High Court Pretoria, 71n Floor, Room 7.15. 9. Should it, for any reasons, transpire that this matter will not proceed on the given date, you are directed to inform the Office of the Deputy Judge President, immediately. 10. None availability of counsel representing any of the parties shall simply not be allowed as a reason for the matter not to proceed on the date of hearing arranged witb my office. Regards AP DEPUTY PRESIDENT GAUTENG COURT, PRETORIA 606 17-11-16;01 :38PM; # 4/ 4 • 606 607 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: 83145/2016 In the application of THE COUNCIL FOR THE ADVANCEMENT Intervening Party DEMOCRATIC ALLIANCE Applicant and MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First Respondent MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES .-Fifth Respondent SOUTH AFRICAN LITIGATION CENTRE Sixth Respondent PROFESSOR JOHN DUGARD AND PROFESSOR GUENAL METTRAUX Seventh Respondent AMNESTY INTERNATIONAL LIMITED Eighth Respondent PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth Respondent HELEN SUZMAN FOUNDATION Tenth Respondent NOTICE OF APPLICATION TO INTERVENE IN TERMS OF UNIFORM RULE OF COURT 12 608 PLEASE TAKE NOTICE that the Council for the Advancement of the South African Constitution ("CASAC") intends to make application to this Court on 5 DECEMBER 2016, at 10h'OO or so soon thereafter as counsel may be heard, for orders: 1. Granting CASAC leave to inteNene as the Second Applicant in case number 83145/2016 in terms of Rule 12 of the Rules of this Court; 2. Dispensing with the ordinary forms, processes and modes of notice and service provided for in the Rules of Court and disposing of this application, under Rule 6(12)(a), as a matter of urgency and in accordance with such procedures as the Court deems appropriate; 3_ Declaring that the notice of South Africa's withdrawal from the Rome Statute of the International Criminal Court ("the Rome Statute"), signed by the first respondent on 19 October 2016 ("the notice"), is inconsistent with the Constitution of the Republic of South, 1996 ("the Constitution") and invalid; 4. Declaring that the Cabinet decision to withdraw fmm the Rome Statute ai'Td to deliver the notice to the United Nations is inconsistent with the· Constitution and invalid; 5. Directing the first to third respondents to revoke the notice of withdrawal without delay and to take all other reasonable steps to terminate the process of withdrawal initiated under Article 127(1) of the Rome Statute; 2 609 6. Directing that the costs of this application are to be paid by the first to third respondents, together with any other respondent that opposes this application, jointly and severally, the one paying the other to be absolved, such costs to include the costs of three counsel; and 7_ Further and/or alternative relief. TAKE NOTICE FURTHER that the affidavit of PARMANANDA LAWSON NAIDOO, and the annexures thereto, will be used in support of this application. TAKE NOTICE FURTHER that CASAC has appointed the offices of its attorneys described below as the address at which it will receive notice and service of all process and documents in these proceedings. Dated at Cape Town this 17th day of November 2016. Attorneys ·for CASAC 1 10t ' Floor Norton Rose House 8 Riebeeck Cape Town 8001 Tel: 021 405 1205 Fax: 021 405 5583 Email: nickLvantriet@nortonrosefulbrightcom 3 610 C/0 Jacques van der Merwe Attorneys 719 Park Street Clydesdale PRETORIA Tel: 012 751 0040 Fax: 086 511 9136 & VM om d AND TO: THE REGISTRAR OF THE GAUTENG DIVISION, PRETORIA AND TO: MINDE SCHAPIRO & SMITH INC Elzanne Jonker Attorneys for the Applicant Tyger Valley Office Park Building Number 2 Cnr \Nillie van Schaar & Old Oak Roads BELVILLE Ref: DEM16/0300 JONKER/sw C/0 KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC. 220 Lange Street Nieuw Muckleneuk PRETORIA Tel: 012 452 8900 Fax: 012 452 8901 4 611 Email: elzanne@mindes,co.za (REF: HUGO STRUWIG I VS I HS000056) AND TO: THE STATE A DORNEY, PRETORIA Attorneys for the First to Third Respondents SALU Building 316 Thabo Sehume Street Pretoria Ref: 7641/2016/249 Tel: 012 309 1520 Fax: 086 507 0909 Email: [email protected] kmeier@justice .gov ,za Enq: J Meier (082 940 3938) AND TO: SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent Parliament Plein Street CAPETOWN Per emaii:[email protected],za AND TO: CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES 5 612 Fifth Respondent Parliament Plein Street CAPETOWN Per email: [email protected] AND TO WEBBER WENTZEL Attorneys for the Sixth Respondent 90 Rivonia Road, Sandton JOHANNESBURG, 2196 P.O. Box 61771, Marshaltown JOHANNESBURG, 2107, South Africa Tel: 011 530 5539 Fax: 011 530 6539 Email: [email protected] Ref: Mr M Hathorn I 3013964 CIO BERNARD VANDER HOVEN ATTORNEYS 2"d Floor, Pare Nouveau Building 225 Veale Street Brooklyn PRETORIA Ref: Elmari Robbertse Tel: 012 346 4243 Fax: 086 584 3261 Email: elmarie@bvdh co.za 6 613 AND TO PROFESSORS JOHN DUGARD AND GUENAEL METTRAUX Seventh Respondent C/O Rosin Wright Rosengarten LeVa!. North Block, South wing Ground Floor 45 on Smuts Avenue (Cnr the Valley Road) JOHANNESBURG Email: [email protected]/ [email protected] AND TO: AMNESTY INTERNATIONAL LIMITED Eighth Respondent c/o Werksmans Attorneys 155 5th Street Sandton, JOHANNESBURG Email: [email protected] AND TO: PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth Respondent C/0 Leg.al Resources Centre Fioor 16 Bram Fischer Towers 7 614 20 Albert Street, Marshaltown JOHANNESBERG Email: Ref: 1113715UMJ PowedA Singh AND TO WEBBER WENTZEL Attorneys for the Tenth Respondent 90 Rivonia Road, Sandton Johannesburg, 2196 P.O. Box61771, Marshaltown Johannesburg, 2107, South Africa Tel: 011 530 5422 Fax: 011 530 6422 Email: [email protected] Ref: V Mo\lshovich/P DelafD Cron/DRafferty/M Spargo/KTulsi/ A De Meyer ·cto HILLS INCORPORATED ATTORNEYS 835 Jan Shoba Street"(Duncan) Brooklyn Pretoria Ref: A Engelbrecht( L Pienaar Tel: 087 230 7314 8 615 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: 83145/2016 In the application of THE COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION Intervening Party to intervene as Second Applicant in the matter between: DEMOCRATIC ALLIANCE Applicant and MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First Respondent MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent SOUTH AFRICAN LITIGATION CENTRE Sixth Respondent PROFESSOR JOHN DUGARD AND PROFESSOR GUENAL METTRAUX Seventh Respondent AMNESTY INTERNATIONAL LIMITED Eighth Respondent PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth Respondent HELEN SUZMAN FOUNDATION Tenth Respondent FOUNDING AFFIDAVIT 616 I, the undersigned PARMANANDA LAWSON NAIDOO do hereby make oath and say that: I. INTRODUCTION 1. I am the Executive Secretary for the Council for the Advancement of the South African Constitution ("CASAC"), the Intervening Party and, if this Court grants leave, Second Applicant in this matter. 2. The contents of this affidavit are within my personal knowledge and are true, save where the context indicates otherwise. Where CASAC makes submissions on the law, it does so on the advice of its legal representatives, which advice I verily believe to be correct. 3. CASAC seeks to declare the Instrument of Withdrawal ("the /nstrumenf'), in terms of which the Republic of South Africa purports to withdraw from the Rome Statute of the International Criminal Court ("the Rome Statute" and "the ICC" respectively), to be inconsistent with the Constitution of the Republic of South Africa, 1996 ("the Constitution") and invalid. A copy of the Instrument is attached hereto as PLN1. CASAC also seeks directory relief consequent to this declaratory relief. 2 617 4. The relief sought by CASAC is similar in substance, and is grounded on the same facts and principles of law, to that sought by the Democratic Alliance ("the OA"), the Applicant, in the matter under case number 83145/2016. 5. This is an application for leave to intervene in terms of Rule 12 of the Uniform Rules of Courtr as Second Applicant in this matter. 6. The test for whether this application by CASAC is to be granted is whether it is in the interests of justice. 7. As the Constitutional Court stated in Gory v Kolver NO (Starke Intervening) 2007 (4) SA 97 (CC) at paragraph 13 that in constitutional matters, a court "must ultimately decide whether or not to allow intervention by considering whether it is in the interests of justice to grant leave to intervene"_ 8. In making this statement, the Constitutional Court was developing the test for an intervention under the common law and under Rule 12, which was "whether the applicant for intervention has a direct and substantial interest in the subject- matter of the litigation". 9. For the reasons set out below, it is submitted that CASAC meets this test. 1 Rule 12 states: "Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a defendant. The court may upon such application make such order, including any order as to costs, and give such directions as to further procedure in the action as to it may seem meet." 3 618 II. FACTUAL BACKGROUND 10. The facts surrounding the decision to withdraw from the Rome Statute are set out in the affidavits already filed by the parties in this matter. It is not necessary for ihe purposes of this application for CASAC to place any further facts concerning the merits of this matter before the Court. 11.1t is however necessary to set out why CASAC is seeking to intervene in this matter at this stage. 12. CASAC - and South Africa, and the world - first heard of the decision to withdraw from the Rome Statute on Friday 21 October 2016. 13. By Monday 24 October 2016, CASAC and the DA filed urgent applications to, inter alia, set aside the withdrawal from the Rome Statute in the Constitutional Court. I attach as PLN2 a copy of the stamped notice of application filed by CASAC in the Constitutional Court under case number 256/16. 14. The substance· of these applications, and the nature of the legal challenges raised therein, constituted the same subject matter. Indeed, on Wednesday 26 October 2016, the Constitutional Court issued one set of directions in respect of both matters. I attach these directions as PLN3. 4 619 15. The DA simultaneously applied to this Court, with the intention of only proceeding before this Court if the Constitutional Court declined to proceed with the applications filed by CASACand the DA. 16. On 11 November 2016, the Constitutional Court dismissed the applications_ The order of dismissal is already before this Court and I do not attach it It should be noted that the applications were dismissed because, inter alia, the Constitutional Court found. that it was not in the interests of justice to hear the applications at this stage. 17. The result of the above is that this Court is ROW the forum which will first determine whether the withdrawal from the Rome Statute was lawful and constitutional. 18. CASAC - which, for the reasons set out below, has a direct and substantial interest in the subject matter of this application - is required to join in the hearing of this case .as Second Applicant in order to pursue the relief it seeks. There is no other possible path open tG it 19. r place on record that on Monday 15 November 2016, CASAC circulated a letter tG the other parties indicating that it had elected not to intervene before this Court. I attach this letter as PLN4. This decision, however, was premised solely on directions previously received from the Honourable Deputy Judge President of this Court, indicating that this matter was to be argued in the week of 22 5 620 November 2016. It was impossible for CASAC to intervene within those timeframes. 20.Additionally, CASAC wished to avoid any possibility that its actions might delay the .hearing of this matter. The grave importance and urgency of this case has been stressed by every party and needs no further explanation_ 21.Because this matter is not proceeding on 22 November 2016, it is now practicable for CASAC to intervene without causing any delay. CASAC accordingly can, and hereby does, apply for leave to intervene as the Second Applicant Ill. THE INTEREST OF CASAC 22- CASAC is a juristic entity that was formed in 2010. It is a voluntary association operating as a non-governmental organisation, which can sue or be sued_ A copy of CASAC's Constitution is attached hereto marked as PLNS ... 23. CASAC is an initiative to advance the Constitution as a platform for democratic politics and the transformation of society. CASAC's principles are based on the founding values of the Constitution, including the rule of law, the principle of legality, the principle of accountability and respect for the doctrine of separation of powers.. 6 621 24.1n terms of section 4.3 of the CASAC Constitution, the activities that it may engage in include "the provision of information, counsel and advice, and the initiation and conduct or support of relevant litigation and advocacy, in the public interest. 25. CASAC has previously engaged in litigation, for example in Justice Alliance of South Africa v President of the Republic of South Africa 2011 (5) SA 388 (CC), and in CASAC v President of the Republic of South Africa (CCT 83/13). 26. There are a number of elements in this matter which fall within CASAC's special areas of interest: the proper interpretation of the Constitution and international law, promoting respect for the separation of powers and for human rights, fighting against impunity both domestically and internationally, ensuring that the national executive complies diligently and punctiliously with its constitutional duty to implement national legislation, and ensuring that legislation is passed only after proper and rational consultation with the public, to ensure that it reflects the true will of the people. 27.1 have been authorised to depose to this affidavit on behalf of CASAC. !-confirm that I have been in personal contact. with all members of the CASAC Executive Committee in this regard. 28. CASAC has standing to bring this application in terms of section 38 of the Constitution: 7 622 28.1. In its own interest, as a civil society organisation with an interest in the subject-matter ofthis application; and 28.2. In the public interest, whlch, it is contended, is indisputably present in this case. IV. RELIEF SOUGHT AND COSTS 29. CASAC contends that it is in the interests of justice to grant leave to intervene to CASAC as the Second Applicant because: 29.1. CASAC has a direct and substantial interest in the subject matter of this case. 29.2. It is not a latecomer to the litigation surrounding the issues raised_ It filed on the same day in the Constitutional Court with the DA, and was in effect a co-applicant with the DA in the Constitutional Court_ 29.3. It has- not placed any new facts before the Court, save as pertaining to its intervention. 29.4. Its intervention will accordingly cause no prejudice or delay to the parties or the Court. 29.5. It has good prospects of success in this application on the merits, even on the version of facts presented by the First to Third Respondents. 29.6. The legal challenges it intends to raise are similar to those raised by the DA, albeit that there may be nuanced differences in the manuer in which the legal contentions are advanced. 8 623 29.7. It seeks relief that is similar in substance to that sought by the DA. CASAC has, in fact, reframed the relief it seeks in this matter to follow the wording and substance of the DA's relief more closely. 29.8. There is accordingly no risk of ambushing any party by raising a new issue or seeking new relief that the parties might not have had a fair opportunity to consider and comment upon. 29.9. Indeed, CASAC's counsel attended the chambers of Deputy Judge President Ledwaba at the pre-trial hearing of this matter, and although counsel for the First to Third Respondents did not consent to CASAC's intervention, it appears that there was no serious objection to CASAC intervening within the timeframes articulated by the Honourable Ledwaba DJP. 30. For these reasons, CASAC contends that leave to intervene ought to be granted by this Court, and that a case has been made out on the facts filed by the other parties, in particular the First to Third Respondents, for the relief which CASAC seeks to achieve. 31. The need for this application was created by the First to Third Respondents. If this application succeeds, it is only fair that these Respondents pay the costs incurred by CASAC and the DA in launching this litigation. 32. This case has further been prepared and filed on an extremely urgent .basis: both before the Constitutional Court and, subsequent to the decision to intervene in this matter, before this Court. In light of the time constraints placed on CASAC 9 624 and the importance and complexity of the issues set out above, this could not have been done without the benefit of three counsel. PARMANANDA LAWSON NAIDOO I certify that: The Deponent signed this affidavit and swore and acknowledged that he: a) Knew and understood the contents thereof; b) Had no objection to taking the oath; and c) Considered the oath to be binding on his conscience. The Deponent then uttered the words "I swear that the contents of this declaration are true, so help me God". DATED AT CAPE TOWN THIS 17th DAY OF NOVEMBER 2016 . ...... CST S.P.N. ABRAHAMS 7160958-{) COMMISSIONER OF OATHS 10 . 625 ! If PLN I __ ..,· 626 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: THE COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION Applicant and THE PRESIDENT OF THE REPUBLI OF SOUTH AFRICA THE-MINISTER OF INTERNATIONAL RELATIONS & COOPERA:riON. Second Respondent THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Third Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent THE NATIONAL DIRECTOR OF -PUBLIC PROSECUTIONS Sixth Respondent THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Seventh Respondent In re South- Africa's withdrawal from the Rome Statute of the International Criminal Court INDEX TO URGENT APPLICATION 627 1. Notice of motion dated 23 October 2016 1 -6 i Founding affidavit of Parmananda Lawson Naidoo dated 2. 7 61 23 October 2016 Annexure PLN1 Instrument of vvlc11u• ""'"' dated 3. 62 19 October 2016 4. Annexure PLN2- CASAC's Constitution 63-97 Annexure PLN3 - Letter of CASAC Executive Committee 5. 98 dated 23 .October 2016 Annexure PLN4 Media Statement by the 1vums{er of 6. 99 ·-100 Justice and Correctional Services dated 21 October 2016 Annexure PLN5 Media Statement by r "'"'""'""' dated 7. 101 21 October 2016 Annexure PLN6 - Sunday Times article titled "Human 8. rights commission concerned with SA's withdrawal from 102 104 ICC" dated 22 October 2016 Annexure PLN7 - Article titled "South Africa: Continent Wide Outcry at ICC Withdrawal: Victims' Advocates Urge 9. 105-108 Reconsideration, Support for Court" dated 22 October 2016 Annexure PLN8 Rand Daily Mail article titled 'v"" 10. human rights bodies slam SA decision to leave 109 ·- 111 international co"'rt" dated 23 October 2016 Annexure PLN9 - Statement by Lawyers for Human 11. 112 · Rights dated 22 October 2016 Annexure PLN10 - Article titled "South Africa: Continent 12. 113-116 wide outcry at ICC withdrawal" dated 22 October 2016 Annexure PLN11 Statement by """"" '""'"' :., .. for 13. 117-123 Global Action dated 21 October 2016 . Ar"'"'"uo" PLN12 -- Statement by Institute for Security M. Studies dated 23 October 2016 2 628 -- Annexure PLN14 ·- Statement by the Legal Resources 16" 125·-127 Centre dated 22 October 2016 r-·-·-·" ' Annexure PLN15 - Statement by the South African 17. 128-129 Litigation Centre dated 22 October 2016 ''"' Annexure PLN16 - Statement by Am11esty International 18. 130-131 dated 22 October 2016 " '-- Annexure PLN17- StatBment by the International Centre 19. 132-133 for Transitional Justice dated 22 October 2016 Annexure PLN18 - ICC press release dated :·; 20. 134 22 October 2016 .. - .. 8190898_1 3 629 1 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT case number: In the matter between: THE COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION Applicant and THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent THE MINISTER OF INTERNATIONAL RELATIONS & COOPERATION Second Respondent THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Third Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Sixth Respondent i THE GOVERNMENT OF THE REPUBLIC i OF SOUTH AFRICA Seventh Respondent I"!'; In re South withdrawal from the Rome Statute of the Jntemationel Criminal Court NOTICE OF MOTION 630 2 TAKE NOTICE that the Applicant, the Council for the Advancement of the South African Constitution ("CASAC'), makes application to this Court ·to be heard, if deemed appropriate by this Court and/or the Chief Justice, on 22 November 2016,. alternatively on an urgent date to be determined by the Registrar, for final relief in the following terms: 1. Condoning any of this application with the Rules of this Court, and allowing this application to be heard on an urgent basis in terms of Rule 12 of the Rules of this Court; 2. Declaring that this Court has exclusive jurisdiction to hear this application; 3. In the alternative to prayer 2 above and in the event that this Court finds that it does not have exclusive jurisdiction to hear this application, granting the Applicant leave to bring this application directly to this Court in terms of section 167(6)(a) of the Constitution of the Republic of South Africa, 1996 ("the Constitution") read with Rule 18 of the Rules of this Court; 4. Declaring the Instrument of Withdrawal ("the lnstrumenf'), signed by the Second Respondent on behalf of the First- Respondent on 19 October 2.016 in terms of which the Republic of South Africa purported to withdraw from the Rome Statute of the International Criminal Court, to be inconsistent with the Constitution and invalid; 5. Directing the Respondents: 2 631 i i . i jq 3 5. '1. Forthwith to take all steps necessary to convey to the Secretary General of the ·united Nations that the Instrument is of no force and effect; and 5.2. To report back to this Court within fifteen (15) days on its compliance with the above order, whereupon this Court may issue such further directions or orders as it deems appropriate; 6. Directing that the costs of this application are to be paid by the First to Third Respondents, together with any other Respondent in the event that the application is opposed by the other Respondents, jointly and severally, the one paying the other to be absolved, such costs to include the costs of three counsel; 7. Further and/or alternative relief. TAKE NOTICE FURTHER that the Chief Justir-""' is requested to issue directions concerning the manner in which this application shall be deall TAKE NOTICE FURTHER that the Applicant has appointed the offices of its attorneys described below as the address at which it will receive notice and service of all process and documents in_ these groceedings. TAKE NOTICE FURTHER that the affidavit of PARMANANDA LAWSON NAIDOO, and the annexures t11ereto, will be used in support of this application. 3 632 4 Dated at Cape Town this 23rd day of October 2016, ,. I Attorneys for the Applicant 1oth Floor Norton Rose House 8 Riebeeck Street Cape Town 8001 Tel: 021 405 1205 Fax: 021 405 5583 Email: nicki,vantriet@nortonrosefuLI;>right.com Per: Nicki vant Riet C/O Norton Rose Fulbright 15 Alice Lane Sandton JOHANNESBURG Tel: 011 685 8500 Fax: 011 301 3200 TO: THE REGISTRAR Constitutional Court Constitution Hill Braamfontein JOHANNESBURG AND TO: PRESIDENT OF THE REPUBLIC OF 4 633 5 SOUTH AFRICA First Respondent Tuynhuys Plein Street CAPETOWN Tel: 021 464 2100 Fax: 021 462 2838 AND TO: MINISTER OF INTERNATIONAL RELATIONS & COOPERATION Second Respondent c/o THE STATE ATTORNEY 22 Long Street CAPETOWN Tel: 021 441 9200 AND TO: MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Third Respondent c/o THE STATE ATTORNEY 22 Long Street CAPETOWN Tel: 021 441 9200 AND TO: SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent c/o PARUAMENT OF SOUTH AFRICA Parliamentary Precind Parliament Street CAPETOWN Tel: 021 403 2595 5 634.. I i W I""' ·! i; 6 ·' [·i.:::' ·, ' i/: AND TO: CHAIRPERSON OF THE NATIONAL ,,.)il!P COUNCIL OF PROVINCES !1:.11 •1< Fifth Respondent c/o PARLIAMENT OF SOUTH AFRICA j!§l !,] Parliamentary Precinct I'•': 1::* Parliament Street CAPETOWN H·! r:·? .. , Tel: 021 403 2110 ;::, :c:.l"i i ;•, ! i AND TO: NATIONAL DIRECTOR OF '· i·:/ :·::.· PJJBLIC PROSECUTIONS ,.. ' i''l '··: Sixth Respondent ) i""M Victoria & Griffiths Mxenge Building 123 Westlake Avenue Weavind Park Silverton PRETORIA Tel: 012 845 6000 AND TO: GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Seventh Respondent c/o THE STATE ATTORNEY 22 Long Street CAPETOWN Tel: 021 441 9200 6 635 7 !S:;, IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA I '' ' .,,, CCT case number: ('ii"i li' In the matter between: ;m :·v THE COUNCIL FOR THE ADVANCEMENT :·;·',:!! ,:l:o PA OF THE SOUTH AFRICAN CONSTITUTION Applicant !;kl, iU ::s: ,'.';,11 '.1!(: and :·:\ !/·:; p; THE PRESIDENT OF THE REPUBLIC 'i' OF SOUTH AFRICA First Respondent ld THE MINISTER OF INTERNATIONAL Fi RELATIONS & COOPERATION Second Respondent 0 THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Third Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth Respondent THE NATlONAL DIRECTOR OF PUBLIC PROSEC!:JTIONS Sixth Respondent THE GOVERNMEN'f OF THE REPUBLIC OF SOUTH Seventh Respondent FOUNDING AFFIDAVIT 636 ",< I 8 I, the undersigned PARMANANDA LAWSON NAIDOO do- hereby make oath and say that: I. INTRODUCTION 1. I am the Executive Secretary for the Council for the Advancement of the South African Constitution (" CASAC'), the Applicant in this matter. 2. The contents of this affidavit are within my personal knowledge and are true, save where the context indicates otherwise. Where CASAC makes submissions on the law, it does so on the advice of its legal representatives, which advice I i.'· verily believe to be correct. 3. This is an application to declare the Instrument of Withdrawal ("the fnstrumenf), signed by the Second RespondeAt on behalf of the First Respondent C'fhe Presidenr) on 19 October 2016 in terms of which the Republic of South Africa purports to withdraw from the Rome-Statute of the lnternationa1 Criminal Court ("the Rome -Statute" and ("fhe ICC'), to be inconsistent with- the Constitution of the Republic of South Africa, 1996 ("the Constitution") and invalid_ A copy of the instrument .js attached hereto as PLN1. CASAC also seeks directory relief cansequent to this declaratory- relief 2 637 9 4. The effect of the Instrument is that South Africa will, in one year's time, cease to be a member of the ICC. 5. It will no longer participate in the only global mechanism that can effectively hold those accused of the most serious of crimes- including genocide, crimes against humanity, war crimes, and torture- accountable for their actions. 6. This can only be described as an unfortunate. decision. It strikes a blow against the international protection of human rights, and turns South Africa into a safe haven for those whom this Court once described as the enemies of all humankind (National Commissioner of Police v South African Human Rights Litigation Centre 2015 (1) SA 315 (CC) ("SALC") at paragraph 36). 7. It is also a decision which is unlawful, irrational, and m violation of the Constitution. The Instrument: 7.1.1s a decision of the executive arm of government, and specifically the President, when section 231 (2) of the Constitution makes it clear that only the National Assembly and the National Council of Provides·(to whorn I will refer as "Parliament:) can approve or witi1draw from international agreements; 72Js in conflict with biRding statute law, notably the 'Implementation of the Rome Statute· of the International Criminal Court Act 27 of 2002 ("the Implementation Acf'), which domesticates the Rome St<>tute; and '':), 3 I p.,"\1" " 638 10 7,3, Is irrational, in that !t serves no legitimate government purpose, and indeed it violates the responsibility of the State to protect, respect, promote and fulfil the rights in the Bill of Rights. 8. This application raises for the first time a question that falls squarely into a sensitive area of the doctrine of separation of powers: Which branch of government - the executive or the legislative - has the power to withdraw from international agreements? ·.; 9. CASAC contends it can only be the legislature, and that the contrary approach implied in the Instrument is constitutionally in·1permissible and invalid. 10. CASAC accordingly approaches this Court to have the Instrument declared to be null and void, and to compel the First to Third and Seventh Respondents ("the State Respondents") to take all necessary and immediate steps required to convey to the Secretary-General of the United Nations that the Instrument is of no force and effect 11. CASAC contends that in causing the tiling of the Instrument, the President acted in conflict with his constitutional obligations in ierms- of sections 83(b), 85(2), 231(2) and 231(4) of the. Constitution, as well as ·the doctrine -of separation of powers_ 4 639 11 1L At the very least the Constitution is silent, and certainly does not provide any express power to the national executive to act in the manner it has done, 1n issuing the Instrument 13. For that reason alone, the conduct impugned has no basis in law, because as this Court has made plain upon numerous occasions, all organs of state· may only exercise public power insofar as they are permitted within the law and the Constitution. The State Respondents have not, and it is contended will not, be able to point to any source for the powers they have arrogated to the executive. 14. This Court accordingly has exclusive jurisdiction to hear this application. 15. In the alternative, it is contended that the important, novel, urgent, and politicaily sensitive issues raised herein make this an appropriate case in which leave should be granted to approach this Court directly. 16. In support of the above contentions, I deal in this affidavit with: 16.1. The parties and the standing of CASAC to bring this application; 16.2. The background facts; 16.3. The urgency of this application; 16.4. The exclusive jurisdiction of this Court; 16.5. The alternative application for direct access; 16'.6. The vi0lation of section 231(2) of the Constitution; 16.7. The viol.ation of binding statute law; 5 640 . 12 16.8. Irrationality; and 16.9. Conclusion and relief sought IL THE PARTIES AND THE STANDING OF CASAC GASAC 17. The Applicant is CASAC, the Council for the Advancement of the South African Constitution. 18. CASAG is a juristic entity that was formed in 2010. It is a voluntary association operating as a non-governmental organisation. A copy of CASAC's Constitution is attached hereto marked as PLN2. 19.CASAC is an initiative to advance the Constitution as a pla!forrn for democratic politics and the transformation of society_ CASAC's principles are based on the founding values of the Constitution, including the rule of law, the principle of · 'i I accountability and respect for the doctrine of separation of powers. 20.ln terms of section 4.3 of the CASAC Constitution, the activities that it may engage in include "the provision of' information, counsel and advice, and the initiation and conduct or support of relevant litigation and advocacy, in the public interest. 6 641 13 21. CASAC has previously engaged in litigation before this Court, notably in Justice Alliance of South Africa v President of the Republic of South Africa 2011 (5) SA 388 (CC), and in CASAC v President of the Republic of South Africa (CCT 83/13). 22. There are a number of elements in this matter which fall within CASAC's special areas of interest the proper interpretation of the Constitution, promoting respect for the separation of powers, fighting against impunity both domestically and internationally, and ensuring that the national executive complies diligently and punctiliously with its constitutional duty to implement national legislation. 23.1 have been authorised to depose to this affidavit on behalf of CASAC. Due to the urgency of this case, the decision to undertake this litigation, to authorise me to depose to this affidavit, and to brief Norton Rose Fulbright as attorneys of record was made telephonically and by email. 24.1 confirm that I have been in personal contact with all members of the CASAC Executive Committee in this regard. I further attach as PLN3 a letter written on behalf of the Executive Committee confirming such. 25. CASAC has standing to bring this application 1n terms of section 38 of the Constitution: 25.1. subject-matter of this application; and 7 642 14 25.2. In the public interest, whicll, it is contended, is indisputably present in this case. Even in the event that this application is found to be without merit, the public and the world will benefit from having certainty as to South Africa's positions and obligations vis-a-vis the ICC. The Respondents 26. The First Respondent is the President of the Republic of South Africa, Jacob Gedleyihlekisa Zuma. He is cited at the offices of the President at Tuynhuys, Plein Street, Cape Town. The Instrument at heart of this application was issued at the -behest of the President. 27. The Second Respondent is the Minister of International Relations and Cooperation, whose address for the purpose of service of process in these proceedings is that of the State Attorney (Western Cape), 4"' 22 Long Street, Cape Town_ The Second Respondent signed the Instrument, and as the Minister responsible for South Africa's foreign affairs has a direct interest in this matter. 28. The Third Respondent is the Minister of Justice and Correctional Services, also served care of the State Attorney (Western Cape), 4'h Floor, 22 Long Street, .. ;._.; Cape Town. The Third Respondent has an interest in the enforcement of the Implementation Act and the Rome Statute, and thus in this application. 8 643 29. The Fourth Respondent is the Speaker of the National Assembly, elected in terms of section 64 of the Constitution as the presiding officer of the National Assembly. She is served at her place of work at the Parliamentary Precinct, Parliament Street, Cape Town. 30. The Fifth Respondent is the Chairperson of the National Council of Provinces, elected in terms of section 64 of the Constitution as presiding officer of the National of Provinces_ He too is served at his place of work at the Parliamentary Precinct, Parliament Street, Cape Town. 31. As this matter concerns the separation of powers between the executive and the legislature, ·both the Fourth and Fifth Respondents have an interest herein_ 32. The Sixth Respondent is the National Director of Public Prosecutions ("NOPP'), served at 123 Westlake Avenue, Weavind Park, Silverton, Pretoria. The NDPP has an interest in the effective functioning of the Rome Statute and the Implementation Act 33. The Seventh Respondent is the Government of the Republic of South Africa, served care of the State Attorney· (Western Cape), 4th Floor, 22 Long Street, Cape Town. The Government is the steward and voice of the South African State on the international stage, and it was on behalf of the Government that the instrument was issued. Ill. THE BACKGROUND FACTS 9 • --: •·.,: • ,·1 • .,.._...... - •.-. :' ,.. ;;". ; ' '7 """'::7;:-_-_::;;;;"· ;,· :.: · 1 : 1 ., • • ,_.; ;·:·:.:.:::·:·;;• '; ! ; ); ? !"r! : '( ·· ,. · · 644' ?7:';';,5 ,. ·1?1.: 1 16 The ICC 34. This matte!' concerns South Africa's membership of the ICC_ It is appropriate to begin by setting out the nature, purpose and history of the ICC_ 35.1n 1945, pursuant to World War II, the Nuremburg and Tolwo international military tribunals were established to try leaders of the Nazi and Japanese regimes for crimes against the peace, war crimes and crimes against humanity. It was subsequent to this that the United Nations adopted a resolution, on 9 December 1948, mandating the International Law Commission to begin work on the dral't statute of an international criminal court. 36. Prior to the formulation of the Rome Statute, the need for ad hoc international criminal courts arose to respond to conflict and atrocities, inaluding mass killings, massive systematic detention and rape .of women and ethnic cleansing, being committed in Croatia, Bosnia and Herzegovina. 37.0n 25 May t993, the United Nations Security Council ("U!'iSC') determined that ihe sitwation constituted a threat to international peace and security. The UNSC determined that the establishment of an ad" hoc international tribunal, and the prosecution of the persons responsible for serious violations of international humar1ttarian law would enable its aim to be achieved and would contribute to the restoration of peace and haltthe violations. 10 645 17 38.Acting in terms of Chapter VII of the UN Charter, the UNSC established an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia. This was known as the International Criminal Tribunal for the FormerYugoslavia (''ICTY'). The ICTY was the first war crimes court created i@. by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. 39. On 8 November 1994, the UNSC made a similar determination concerning the genocide and systematic and widespread violations of international humanitarian law occurring in Rwanda. The International Criminal Tribunal for Rwanda ("ICTR") was established, and was the first ever international tribunal to deliver verdicts in relation to genocide, to define rape in international criminal law and to recognise rape as a means of perpetrating genocide, and to hold members of the ''' media responsible for broadcasts intended to inflame the public to commit a<:-1s of genocide_ ,' ' 40. Th.e success of the ·ICTY-and the ICTR fostered faith in an international criminal court Both tribunals prcvided eoncrete an international criminal justice system coold be efficient and successtuL They proVided models for procedure and a body of jurisprudence for the conviction of individuals for genocide, war crimes and crimes against humanity. 41.1n 1998, delegates cbnvened in Rome to debate and dra# what became the Rome Statute. 11 ... .. 646 .. i (1 I ' 18 42.0n 17 July 1998, the Rome Statute was adopted by a significant majority of the states attending the Rome Conference, including South Africa as a founding member. 43. The Preamble to the Rome Statute sets out the aims of the Statute, inter alia, as: "Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes". South Africa as a signatory to the ICC 44. South Africa signed and ratified the Rome Statute, thereby becoming the 2:1'd ; . State Party, on 17 July 1998. ' ;:; 45. Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. 46. On 16 August 2002, Parliament passed the Implementation Act, domesticating the Rome Statute. In terms of section :>(a) of the Implementation Act, one of its goals is "to create -a framework to -ensure t/Jat the Statute is effectively implemented in ihe RepUblic". 12 647 i' 19 I.: 47. Since then, the principles embodied in the Rome Statute, of justice for all and an end to the impunity of those who commit international crimes, has played a valuable role in a number of, inter alia, this Court's judgments. The ICC and Africa 48.1n recent years, and notably in response to the ICC's investigation into the political viole[lce in Kenya in 2007, there have been repeated criticisms of the ICC by African leaders, including the President. The subtext to the criticism is that the ICC is biased against Africans. 49.As this (false) perception may play a role in the President's decision to issue the Instrument, it is appropriate that it be briefly rebutted. 50.34 of the total of 123 State Parties to the Rome Statute are from Africa: more than from any other region of the world. 51. The central concern appears to be that of the 9 countries in which th& ICC has formally launched investigations, 8 are African. The ninlh, Georgia, is a relatively recent addition, dating from 27 January 2016. Thus, for -most. of its history, the sole targets of ICC justice were Africans_ 52. However, there are multiple reasons for this, which -d"1spel any suggestion of bias_ i ,._ -.. 1 •• ;·:·:; · : :-.: .. .. 648· .:, (1i\ i lib :. I',, 20 53. Speaking briefly, the ICC can be seized with a matter in three ways: 53.1. A state party to the ICC Statute may itself willingly submit a situation to the ICC for investigation and possible prosecution; 53.2. The UNSC may, in the exercise of its mandate to maintain international peace and security, mandate an ICC investigation and prosecution; 53.3. The ICC Prosecutor may initiate a prosecution. 54. The ICC, like any court, investigates a specific case, not a country. There can be multiple cases in a single country. 55. Four of the 8 African nations in which investigations are being conducted - Uganda, the Democratic Republic of the Congo ("DRC"), the Central African Republic ("CAR"), and Mali- r·eferred these cases themselves to the ICC. This is fully half of all of the matters from Africa. No suggestion of bias can arise in cases of self-referral. 56. Two of the other African investigations- Libya and the Sudan (Darfur) -were referred by the UNSC. It is highly significant that in both cases, ali African members of the UNSC voted in favour of the referral. 57.Aigeria, Tanzania and Benin backed the Sudan referral, while Gabon, Nigeria and ;§>outh Africa supported the Libyan referral. '' 14 649 21 ss: Only two investigations, in Kenya and Cote d'lvoire, were initiated by the Prosecutor. Both of these countries experienced widespread violence and disruption, such that an investigation by the Prosecutor cannot be said to be unjustified. In the case of the charges ag&linst President Kenyatta of -Kenya, charges were subsequently dropped. 59_ The current Prosecutor, Fatou Bensouda, is herself from The Gambia. 60. Under l1er watch, the ICC currently has 10 ongoing preliminary investigations underway. Only three_ of the ten involve African countries (Burundi, Gabon, and Nigeria). 61. There is no pattern or valid reason to suppose bias on the part of the ICC. j: The ICC and President AI Bashir 62_ Further background to the state Respondents' stance towards the ICC concerns Sudanese President AI Bashir_ 63. The full events of President AI Bashir's visit to South Africa are described in Minister of Justice & Constitutional Development v Southern African Litigatioo Centre 2016 (3) SA 317 (SCA), which is (for now) on appeal before this Court, They thus require no repetition and the Court is referred thereto. 15 650 I' 22 64.11 fall' to be oo!ed, "--· fue! fue State R"poodoot5 ooodoct io •e AJ Bru;hi< I saga can only be read to show a deep, distressing, and potentially unlawful and unconstitutional reluctance to comply with the demands of the Rome Statute and the Implementation Act 65.1t appears that this antipathy to the Rome Statute has now culminated in the Instrument. Issuance of the Instrument 66_ On Friday 21 October 2016, the Third Respondent announced to South Africa at a press conference that South Africa would be withdrawing from the ICC. A copy of the full media statement ("the Media Statemenf') is attached as PLN4_ 67. The reasoning for the decision is given as follows: "ln exercising its international relations with foreign countries, particularly yvith countries in which serious conflicts occur or have .occurred, South Africa is hindered by th!' Implementation of the Rome Statute of the International Criminal \j Court Act, 2 (Act No 2.7 of 2002). This Act and the Rome Statute of the .,I International Criminal Court compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the International Criminal Court for genocide, crimes against humanity and war crimes and to surrender such persons to the International Criminal Court. South has to do so, even under circumstances where we are actively involved in promoting peace, stability and dialogue in those co·untries. 16 ... •t '10J1:; •:V::: •• .. .-,_.. ,<''!':.'"-'?';: ···· ··-,,-._.,,,.,,,,,, .. ·; 'c•:•::l\:·:-.-, ,_. : We wish to give effect to the rule of customary international la:y which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peace;!ul resolution of conflicts they may occur, particularly on the African continent South Africa enacted the Diplomatic Immunities and Privileges Act, (Act No. 37 of 2001), which provides for the immunities and privileges of diplomatic missions and consular posts and their rnf>rnbers, of heads of states, special envoys and certain representatives of the United Nations and its specialised agencies, other international organisations and certain other persons. However, the Implementation of the Rome Statut!) of the International Criminal Court Act, 2002, is in conflict and inconsistent with the erovisions of the Diplomatic Immunities and Privileges Act, 2001, In order to ensure South Africa's continued ability to conduct active diplomatic relations, a bill proposing the repeal of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 will soon be tabled in parliament We have already in writing informed the Speaker of the National Assembly and the Chairperson of the NCOP ofthis Executive decision." (Emphasis added.) 68.Accordingly, the Media Statement continued: "Written notice to withdraw from the Rome Statute of the International Criminal Court has been submitted to the Secrefary·General of the United Nations in accordance with Article 127(1) of the Rome Statute of the International Criminal 1''.: Court. The withdrawal. will take effect one year after the Secretary-General has received the notification. South African will remain obligated under the Rome Statute for the duration of the 12 months' notice period." 69. The Instrument (of Withdrawal) is the document attached above. It reiterates the substance of the Media Statement, noting: 17 .. ' ·:· .•• .. :'.··i ··. ·, .. :':. 652·.:: -:;; i I: i ' 24 "AND WHEREAS in complex and multi"faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive; AND WHEREAS the Republic of South Africa has found that its with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute of the l·nternational Criminal Court as explained in the attachment hereto". 70. CASAC has unfortunately not been able to locate the "attachmenf' referred to above. It calls on the State Respondents to place such before this Court. 71. CASAC further calls on the Respondents to explain exactly how, when, and in what way the obligations under the Rome Statute have ever interfered in any way with efforts to resolve conflicts peacefully. 72. The critical fact that emerges indisputably from the Instrument and the Media '' Statement is that the decision to withdraw from the Rome Statute was made by the executive branch of government, not the legislative branch. ; ' 73. This has been fc:rther .confirmed by a statement issued later on 21 October 2016 by Parliament, to the effect that: "Speaker of the National Assembly, Ms Baleka Mbete, and Chairperson of the National Council of Provinces (NCOP), Ms Thandi Modise, today rece_ived correspondence fTom the Minister of Justice and Correctional Services, Advocate Michael Masutha, informing Parliament of a Cabinet decision to withdraw South- Africa from the Rome Statute of the International Criminal Ooort woll ' '""""' fu< :: """""""' 00 6"''" fu• J ... . f<:i: ·"", <''" =· --_,-_. .,., .. "''-""''·'''·""., ····"', ... ,..• --· ...... _.,,., ..., ..• ,.", .• c.·, .· ,._. .,,,e"''·"''"'' ...... ,_...... ,_.... _"... ,...... •...... ,, .... - ..•.., ... ,..,_._ ·=,. ... ,..• , ...,.,. ... '""""·""-"'_,_,,,,, .. ," --·"' ,. " ,.,., ...... 653 -., ..,.,, ..... r i I 25 Parliament This matter will be handled .in accordance with du€> Parliamentary process and through relevant structures io the institution:' 7 4.1 attach a copy of this statement as PLN5. 75. This statement makes it clear- if there was any doubt - that South Africa· now finds itself in the anomalous position that the Implementation Act remains on the statute books, but the treaty that the Act exists to implement (purportedly) will, after a year, no longer bind South Africa. 76. The cause of this confusion is, in principle, even more serious and unconstitutional. The executive, and in this case specifically the President, has usurped from Parliament the power and right to determine when South Africa should withdraw from an international agreement 77.1t is to contest thfs usurpation that this application is brought. 78. Before dealing with the merits of the application, I set out CASAC's .contentions ' on the issues of urgency, exclusive jurisdiction, and (in the alternative) direct aE:cess to this Cowrt. IV. URGENCY i/ 19 654 26 79. CASAC contends that this matter is urgent and cannot be heard in due course. It accordingly seeks an expedited hearing, as may be directed by the Chief Justice in terms of Rule 12 of this Court. 80.While, in te.nms of Article 127(1) of the Rome Statute, South Africa's withdrawal from the ICC will only take effect in a year's time, the practical consequences of the deposition of the Instrument are already occurring. 81. This is the purpose of the year-long withdrawal period: to allow parties to structure their affairs on the basis that South Africa will no longer be a member of the ICC. If South Africa is not going. to exit the ICC, as the result of the decision of this Court, it is vital that this be made clear as soon as possible. 82. The parties who need urgent clarity on the status of South Africa's withdrawal include the public and civil society, the ICC itself, other African nations, the national executive, and Parliament, to name but a few. 83. First, South Africa's withdrawal has already attracted attention and I''· condemnation, both domestically and internationall)', from the public and from ,. ,.. , civil society. 84.The South African Human Rights Commission ("HRG') expressed disagreement ;·;r with the decision to withdraw from tbe Rome Statute in order to bestow immunity onto siti:ing heads of states, noting that :!:.::·; ,. ::•:, 20 1 f{ i·· 655 27 "The ICC represents an important mechanism tor victims of human rights violations to- access justlce and to end impunity h1 the particular situation where their family and loved ones have been killed and maimed ... absence of regional courts with criminal jurisdiction. the ICC provides justice internationally for those affected by egregious human rights violl'ltions. crimes against humanity, and for victims" (Emphasis added). 85.1 attach, marked as PLN6, a copy of the report on the HRC as published in the Sunday Times. 86.According to Human Rights Watch, speaking on behalf of many civil society groups across Africa, the withdrawal is "a slap in the face for victims of the most serious crimes and should be reconsidered". I attach the statement by Human Rights Watch, titled "South Africa: Continent-wide Outcry at ICC Withdrawal" as I ! i I, I, 87. The International Commission of Jurists- Kenya also condemned the decision to. I-·-. withdraw as an "affront to decadiO's of progress in the global fight against I., impunity." I refer in this regard to the statement annexed as PLN8. 88. Lawyers for Human Rights, has expressed concecn that South Africa's withdrawal from the Rome Statute is tantamount to an abandonment of the victims of the 'i. world's most heinous crimes, who now be left without a voice ''and no place to I i i\ seek justice"_ This is because "Souf/r Africa has played an extremely important ;• I,_ role in the devefopment of the court and tire expansion of universal jurisdiction for !: I. "' il'!temational crimes". I refer in this regard to annexure -PLN9. This sentiment i>[·,, jj <.\' 21 ]. I I I'<; .. ... l '.' "1 ·': r ,- ,.,.; · \ ,. ;'<' • '• · ·,-.·I';;<·;" :.:• ·.o·. .-.c ... .. = ·:>.•,•"I''' • • ·.,,·' •: •. •.<',"'Nc,o'rr.:. "'· :·•·, '"I'''•' 656·... ·;,·:;:" ' 28 was echoed by the African Centre for Justice and Peace Studies in New York (annexure PLN10)_ 89. Other organisations that condemned the decision to withdraw include: 89.1. Parliamentarians for Global Action (PLN11); 89.2. Institute for Security Studies (PLN12); 89.3. The Kenya Human Rights Commission (see PLN7); 89.4, The Legal Resources Centre (PLN14); 89.5. The South African Litigation Centre (PLN15); 89.6. Amnesty International (PLN16); and 89.7. The International Centre for Transitional Justice (PLN17). 90_ The eyes of the world are on South Africa. Delay at this point will effectively validate the Instrument as the official legal stance of this country. 91. Secondly, the ICC is entitled to know for certain whether South Africa will .5e continuing as a member. Internally, South Africa's withdrawal will trigger a- i' reaction. It is unlikely that the departure of a founding member wtll be met with I: either support or indtfference. South Africa's purported reasons for will be scrutinised, and will impact upon, the future conduct of the ICC. 92. Externally, the ICC must know who its members are jn order to carry out its I. functions: From finances to investigations, the ICC depends, on the support and cooperation of members. And investigations of international crimes are not j";" 22 I' li 11i:..: · ..,./'."·;:·' ,"': :·: ·• 657 :· ''t: 29 resolved in less than a year. Accordingly, if the ICC is contemplating a preliminary examination or investigation in a country close to South Africa (which the facts of SALC make clear is a material possibility), it must know whether it can rely on South Africa's support.· 93.1t is no secret that one of the grounds on which both the African Union and the South African government has criticized the ICC is its perceived -but false- bias against African nations. To the extent that this may be seen as a ground for South Africa's withdrawal, it may deter the ICC from further investigations in Africa. This could potentially leave millions of victims without redress or justice. 94.Jh!r9Jy, other African nations may-· unless this Court acts urgently- follow South Africa's lead in withdrawing from the ICC. South Africa is a regional power and an influential member of the AU. 95.1t would also set a precedent. No State Party to the Home Statute has ever withdrawn its membership of the ICC: 95.1. The United States of America ("the US") signed the Rome Statute under President Bill Clinton, but had yet to ratify it when President George W. Bush came into power. Under President Bush, the US wrote to the United Nations Secretary General on 6 May 2002 by means of a letter, indicating that it would not ratify the Rome StaMe and did not consider itself bound thereby. 23 658 ,,..:.;;- 30 ' I/'-!· 952 Both Kenya (on 5 September 2013) and Burundi (on 12 October 2013) had parliamentary votes in favour of withdrawing from the ICC, but no formal action was ever taken. Burundi withdrawal '' 1\.' )!.;.. ,. 95.3. Notably these were parliamentary votes and not the unilateral action of executive members of the Kenyan and Burundian governments. Both of these nations were the subjects of ICC investigations. 96. South Africa's action, if unchecked, may encourage other withdrawals and irreparably damage the ICC. 97. On 22 October 2016, the ICC raised this exact concern in a press release, which I attach as PLN18. The press release states in relevant part "The President of the Assembly is concerned that this disturbing signal would open the way to other African States withdrawi':'g from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that sbock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crimes of aggression." 98. Fourthly. the national executive must know whether it has acted lawfully or not. It has made a public declaration of .intent on behalf of South Africa, of which the whole world has taken notice (and criticised). It may now have to retract this declaration. This may affect the standing and credibility of the South African executive on the international stage. This is best resolved as soon as possible. 24 ,• '" ' , ,1,,::•, .'·;··,". 'i'U'' ·:: ·;.; ·:: .. ,_.._, :-r, •;.•, ·,·;, ·,:;;,:.•tl '1·, '; ·.-,;:· r':"'" '.,, .I'm'• ':':·'.',-·:, •. 659<:_-)'•' ':i'j, :,:;;j lei 31 99. Fifthly, Parliament must know what the correct legal position is. It has been placed in a difficult position. South Africa's membership in an international treaty which it ratified has been purportedly withdrawn. The legislation it passed to domesticate the Rome Statute has been undermined. 100. It must now decide what to do. Must it accept the State Respondents' fait accompli that South Africa will no longer participate in the ICC, and repeal the Implementation Act? Can it re-ratify the Rome Statute? And if it did, could the executive branch yet again withdraw South Africa's membership? 101. These questions require urgent answers. 102. CASAC contends that it is in the interests of justice, of the parties, of the ICC, and - it can be said without exaggeration - of the whole world that South Africa's position vis-e-vis the ICC been urgently and Finally resolved by this Court. Hearing on 22 November 2016 103. If deemed appropriate by this Court and/or the Chief Justice, CASAC contends that this application could be set down for hearing on 22 November 2016. 104. Currently, the appeal in the matter of Minister of Justice and Constitutional f>evelopment & Others v The Southern African Litigation Centre (CCT 75/16) ("the SALC appear) is set down for hearing on that date. 25 660 32 105. The SALC appeal concerns, as this Court will be aware, the departure of President AI Bashir of the Sudan frorn South Africa in June 2015, m contravention of an order of court, and whether or not South Africa was obliged in terms of the Rome Statute to arrest him and transfer him to the ICC. 106. There is thus an overlapping of issues and of facts between the SALC appeal and this matter. It would facilitate this Court's ability to hear and resolve all questions surrounding the Rome Statute arising from both these matters as efficiently and (for this case) as urgently as possible_ 107. In the Media Statement, the Third Respondent states that the SALC appeal will be withdrawn in light of the Instrument. However, Rule 27 of the Rules of this Court requires that all parties agree to the withdrawal of an appeal. There is no evidence that the SALC will consent to a withdrawaL 108. In any event, if the SALC appeal is withdrawn, in principle the date of 22 November 2016 would become available. 109. While· fhe date of 22 November 2016 would require parties to file papers on expedited timeframes, • CASAC contends that this is achievable without _ significant prejudice to any party. The Second, Third, and Sixth Respondents are already represented in the SALC appeaL 26 ·, ·c: i - •;o:... • ··: · · :·.· .,_ ·<• ·:: .""' 661-; r,:'- i'}.4 M F'· 33 110. CASAC accordingly respectfully submits thatthis Court may wish to consider hearing this matter on 22 November 2016, with or without the SALC appeal. V. THE EXCLUSIVE JURISDICTION OF THIS COURT 111. CASAC contends that this Court alone has the jurisdiction to hear this application, as it concerns the failure of the President to fulfil a constitutional obligation. 112. The Court's attention is drawn to the fact that the Instrument is signed by the Second Respondent, not the President. And the Media Statement, issued by the Third Respondent on 21 October 2016, states that the decision to withdraw was made by Cabinet. 113. CASAC nevertheless contends that in substance, the was the President. i-· i,j 114. Sections 91"92 of the Constitution make it clear that Cabinet members· serve at the pleasure of, and subject· to, the President. ·The Cabinet is not a formal decision-making body. It .is a collectively accountable to the people of South Africa and whenever Ca:binet acts, the President as its head, is ultimately responsible for that decision. 115. Accordingly when. a decision of Cabinet is made - unless. the President is which .is not the case here - such decision reflects his approval. 27 . '"'·' ; ' ·;;:!. 5,:.::::·-r::/.:;'' :: '..'Y ....,'. · ·- ":· ·· 662:; 'I : ! 34 Members of Cabinet may advise him, or may convince him of a particular approach, but the final say is his. 116. This is not one of those cases, as occurs often in government, wherein a decision is made by impersonal-bureaucracy, far from the sight and knowledge of the President himself. This Court has in the past been justly concerned i· i I about holding that it has exclusive jurisdiction to hear such matters, as it risks I ' restricting the ability of the High Courts and the Supreme Court of Appeal to I I scrutinise the widespread functions of government. I I I !· 117. But this decision was not made in the absence ofthe President. It was made at a meeting at which he was present, of his Cabinet, likely in his offices, Had he disagreed, the decision would not have been made. In ail meaningful ways, it is his decision. 118. CASAC calls on the President to confirm before this Court that the decision to issue the Instrument was made after discussion with him, and with his consent and approval. 119. This Court should not allow decisions that are substantively those of the President, and which give rise to disputes that fall within tile exclusive jurisdiction of this Court, to be dtverted to other courts merely because the President directs another member of Cabinet to sign the written decision -instead of him. 28 663 35 120. Section 167(4) of the Constitution provides: "Only the Constitutional Court may- I· {a) decide disputes between organs of state in the national or provincial i sphere concerning the constitutional status, powers or functions of any i j! of those organs of state;- (b) decide on the constitutionality of any parliamentary or p•·ovincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the Presidevt ha.s failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144." (Emphasis added.) 121. In Economic Freedom Fighters v Speaker, National Assembly & Others2016 (3) SA 580 (CC) ("Nkandla"), this Court set out under what circumstances it ;,, would have exclusive jurisdiction to resolve a dispute, 122. At paragraph 17 of Nkandla, this Court cautioned that "s 167(4)(e) must be given a naiTOW meaning", and at paragraph 1·8, .that "[a]n alleged breach of a constitutional obligation must .relate to an obligation that is specifically imposed on the President or Parliament'. 123. This Court nevertheless went on to find in Nkandla that the President had failed to fulfil his constitutionarobligations in terms of sections 33(b) and 182(1)(c) of the Constitution (paragraph 35 of Nkandla). 29 ,.,,. ··o .. ·,. · :7· t;: ;, " · · ··:-:'.. '.': 664 36 124. Section 83 of the Constitution provides: i II I "The President- i (a) is the Head of State and head of the national executi-ve; t (b) must uphold, defend and respect the Constitution as the supreme law of i' i' the Republic; and i (c) promotes the unity of the nation and that which will advance the i Republic." I I 1: '· 125. And section 182(1) of the Constitution provides: "(1) The Public Protector has the power, as regulated by nationallegislation- (a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that Is alleged or suspected to be improper or to result in any impropriety or I' , prejudice; > I (b) to report on that conduct; and (c) to take appropriate remedial action.'' 126. Sectioo 182(1) of the Constitution does not refer specifically to the President in anyway, 127. ln Nkandla at paragraphs 34-36, this Court held that "that agent-spe.cificity is primarily established by s 83', but that further speciftcity·was-provided by the fact that the remedial action ordered by the Public Protector,. in terms of section 182(1)(c) ofthe Constitution, was directed exclusively against the President. 30 . 665 37 128. The general duty on the President to implement, inter alia, Acts of Parliament is made afl the more specific by the fact that it was the President, in this case., who took the decision to withdraw embodied in the Instrument 129. It is not any obligation on the President that will trigger the exclusive jurisdiction of this Court In Doctors for Life lntemational v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (''Doctors for Life") at paragraph 24, this Court held: "The principle underlying the exclusive jurisdiction of this Court under s 167(4) is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefo@, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within s 167(4\, It follows that where a dispute will require a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court" (Emphasis added.) 130. In a similar manner to Doctors for Life, CASAC contends that the questions that arise in this matter are important, and political, and concern sensitive issl:les of separation of powers which only this Court can or should decide. 131. And in a similar manner to Nkandla, CASAG contends that there is a constitutional duty on the President to respect the separation of powers and to implement- not undermine -legislation promulgated by Parliament 31 666 l 38 132. CASAC contends that the sections of the Constitution that the President has breached are 83(b), 85(2), 231 (2) and 231 (4), -and the doctrine of separation of powers that is an inherent component of the Constitution. 133. Section 85(2) of the Constitution provides: ('The President exercises the executive authority, together with the other members of the Cabinet, by· (a) impl.,menting national legislation except where the Constitution or an Act of Parliament provides otherwise; (b) developing and implementing national policy; (c) co-ordinating the functions of state departments and administrations; (d) preparing and initiating legislation; and (e) pe1forming any other executive function, provided for In the Constitution or in national legislation." (Emphasis added.) 134_ Section 85(2), read with section 83(b) imposes a constitutional obligation on the President to comply with and to -implement national legislation, including the Implementation Act. 135. Section 231 ofthe Constitution provides: "(1) The negotiating and signing of all international agreements is the responsibility of the national executive. (2) An international agreement binds the Republic only after it approved by resolution in both the National Assembly and the National Council of Provinces, unless· it is an agreement referred to in subsection (3)" 32. 667 39 (3) An international agreement of a technical, admiflistrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time. (4) Any lnt<\rnatlonal agreement becomes law in the Republic when it is enacted into law by national, legislation; but a self"executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament (5) The Republic is bound by International agreements Which were binding on the Republic when this Constitution took effect." (Emphasis added.) 136_ Should this Court grant leave for CASAC to apply to this Court, and as set out below in greater detail, it will be argued that section 231 grants the power to bind South Africa to an international agreement - . and therefore also to withdraw from such agreement ·- to the legislative branch and not the executive. '' 137 _ It will further be argued that the Presidenfs conduct in issuing the Instrument and purporting to withdraw from the ICC is fundamentally inconsistent with the -Implementation Act, and with the separation of powers. 138. This is more than disagreement on the interpretation of a statute. Both in form and substance, the President has shown that he does not approve of and will not comply in prir.tciple with the Implementation Act and/or the Rome Statute_ 33 668 i. I I I 40 ,:\1i- o/,'r 139. At the very least, this raises a vital and novel question concerning the separation of powers: Which branch of government is empowered to decide to withdraw from international agreements? 140. But this is more than a legal question. It raises the risk of a genuine constitutional crisis_ The executive branch of government is not complying with the domestic statutes promulgated and international agreements ratified by the legislative branch. 141. Parliament may- and CASAC contends, should - uphold the validity of the Implementation Act and keep it on the statute books. This is its constitutional prerogative: to determine the laws of the land, including which international law binds South Africa. In terms of section 39(1) of the Constrtution, international I"' law must be considered when interpreting the Bill of Rights. 142. The consequence of these contradictory approaches by the executive and_ by the legislature is that the legislature is enforcing via domestic law a statute which has, as its sole purpose, the implementation of an international treaty which the executive has disavowed. This is absurd and irrational. 143. To the extent tha:t Parliament accepts this absurd outcome, or abdicates its duty to make Jaw for South Africa by accepting without demur that the executive can withdraw South Africa from iRternational agreements, Parliament too is failing in a constitutional obligation. It is for Parliament, and no other body, to determine which international agreements will bind South Africa. This 34 (' ' 669 41 necessarily includes reserving the power to exit international agreements to Parliament 144, To summarise: 144_1_ The Constitution, in terms of sections 83(b), 85(2), 231 (2) and 231(4), and the doctrine of separation of powers, places on obligation on the President speci'flcally to: 144.U. Honour and implement national legislation to the best of his ability; and to 144.12. Respect the prerogatives and powers of the other branches of government, notably in this case the power of Parliament to enter into and exit from international agreements; i 144.2. By issuing, or causing to be issued, the Instrument, the has !:1.. violated both ofthe abovementioned obligations. 144.3. Bearing in mind that the issues raised in this matter are at the heart of the doctrine of separation of powers, the requirements for this Court to ' ' ' exercise exclusive jurisdiction in terms of 167(4) of the Constitution are met. VI. DIRECT ACCESS 145. In the alternative to prayer 2 above and in the event that this Court finds that it does not have exclusive Jurisdiction to hear this application, orders are sought granting CASAC leave to bring this application directly to this Court in terms of 35 ,i' 670 42 section 167(6)(a) of the Constitution read with Rule 18 of the Rules of this Court. 146. In Electoral Commission v Mh!ope and Others 2016 (5) SA 1 (CC) ('Mh/ophe"), this Court, per Madlanga J (in a concurring judgment, but the majority judgment of Mogoeng CJ agreed with the findings concerning direct access). stated at paragraphs 75-76: "This court is slow to grant direct access. In Bruce Chaskalson P explained: 'It is .•• not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given. Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised. In such circumstances the losing party has an opportunity of challenging the \.'' reasoning on which the first judgment is based, and of reconsidering and refining arguments previously raised in the light of such judgment.' Direct access may be granted only where the interests of justice permit. For this. requiremerit to be met. exceptional circumstance;;;. must be demonstrat'\'d to the court. In addition to the prosPects of success, other factors ·in esfablishing exceptional circumstances include: the nature of the constitutional isSil!i!S raised-. the Qeed for an wrgent decision from the court: whether the court_ requires the views of lower courts, and, relaledly, if it for it to sit as a -court of first and final instance; whether similar .;i j§§Ues. are pending -before the court; whether prejudice to the public good or good may occur; and whether the issue to be decided has a 'grave bearing on the soundness of our constitutional democracy'- This does not purpert to be a closed list. And the relevance and relative weight of each factor will depend on- the circumstances of each case." (Emphasis added. Footnotes omitted_) :.',··': :·1 36 \'· ' \ " . -•:·:·...... , 1 • .._ ·:•.:': ·: ·· 671 )l; < 'I 43 ':· 147_ CASAC contends that all of these f this matter. 148. First, it is contended that this application has very good prospects of success. The challenges brought by CASAC are set out below in detail. I refer the Court thereto. 149. Secondly, CASAC contends that the nature of the constitutional issues raised r:: are such that it is for this Court, and no other, to determine them. '' 150. The question of which arm of government may decide to withdraw from international agreements lies in the heartland of separation of powers_ Determining where the divisions of power between the branches of government lie is one of the quintessential functions of this Court. As this Court said in Doctors for Ute at paragraph 23: "This Court occupies a special place In our constitutional order. It is the highest court on coMstitutional matters and is the ultimate guardian of our Constitution and its values. As this Court pointed out in SARFU 1, it was envisaged that this Court would be caUed upon 'to adjudicate finally in respect :·: of issu-es which would inevitably have important pol·itical consequences'." 151. Thirdly, for the reasons set out above, this matter is urgent A hearing before -any other Court will inevitably cause significant and prejudicial delay_ 37 ·:it':l · ... ;:'·'·'··! -· ·:v?;•-•:: 1 · \ ': ..:,-:-·,.::: ·:':1; 672 '· (' 44 152_ Fourthly, this is not a matter where the Court requires the views of the lower courts: 152.1. There are no disputes of fact and the factual matrix is simple_ 1522_ The legal question is crisp: Which branch of government may decide to withdraw from a binding international agreement? 152.3. The sources of law to consider are the Constitution, international law (the Rorne Statute) and a single _ domestic statute that incorporates i international law (the Implementation Act). These are all areas of law in I which this Court is pre-eminently qualified. There are no common law questions arising on which this Court might benefit from tile views of, inter alia, the Supreme Court of AppeaL 153. Fifthly, there are similar issues before this Court: in the SALC appeaL It is for this reason that CASAC has submitted that the two matters should be heard together_ 154_ The sixth and final factor is perhaps the rnost important CASAC contends that the issues raised herein have "a grave bearing on the soundness of our constitutional democracy", and that there win- be prejudice to the public good if this Court does not grant 1eal!e for this applkation to be heard. 155. South Africa's constitutional democracy depends on all the branches of government respecting the separation of powers. But more .than that, it 38 ''·.-:\······ •,·: ·' '·', 673i.:-IC•'. C.: ·1 \. [ I 45 depends on the executive branch honouring its basic duty to implement the legislation made by Parliament. 156_ In this matter, the President has done the opposite of that. He has indisputably undermined the Implementation Act, and has usurped for himself the right to determine which international agreement are binding on South Africa. 157. Furthermore, the statute and treaties which the President is, in this case, ceasing to obey have a particular significance to the public good. The Rome Statute, with its domestic corollaries around the world, is the most effective - indeed, in many cases, the only ··· tool available to ensure that those guilty of the most heinous of crimes face justice. 158. If South Africa, and potentially other African nations, remove their support for this international criminal justice system, it would deal a serious blow to efforts to combat international crimes. Indeed, the decision to withdraw from the ICC is so fundamentally inconsistent with the values and goats of the Constitution that CASAC contends that it is irrational. 159. This is one of the three challenges to the Instrument that CASAC seeks to bring before this Court. VII. THE VIOLATION OF SECTION 231 OF THE CONSTITUTION 160. At the heart of the scheme of section 231 of the Constitution lies the doctrine of 39 :rt:, 674 46 separation of powers. This section seeks to provide for checks and balances between the national executive on the one hand, and !he legislature on the other. 161. In terms of section 231(1), the national executive has a responsibility to negotiate and sign international agreements on behalf of the Republic. That, however, is as far as the national executive's responsibility goes. Signing the Rome Statute is not the same act as actually agreeing to be bound by it. It merely indicates an intention, in due course, to be bound (which occurs when the Statute is ratified). 162. This is apparent from Article 125 of the Rome Statute which distinguishes between (a) the process of signing (which is a formality), and (b) the process of agreeing to be bound by the agreement. In relevant parts, Article 125 reads as follows: "(1) This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Ofganization of tile. United, Nations, on 17 July" 199K Thereafter, it shall remain open lor signature in Rome at the Minis\ry of Foreign Affairs of Italy untll17 October 1998. After that date, the Statute shaH remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. (2) This Statute is subject to ratification, acceptance or approval by signatory States, Instruments of ratification, acceptance or approval j." !'·;., shall be deposited with the Secretary-General of the United Nations." 163. In order for international agreements to be binding on South Africa, Parliament 40 675 I 47 '" (and only Parliament) must pass a resolution to make them binding. This is often, but need not always be, via legislation_ 164. It is therefore clear that the Constitution contemplated for Parnament, as the legislative arrn of government, to make international agreements binding on South Africa. 165. By re.solving to mal 231 (2) of the Constitution, Parliament in essence announces to the world that South Africa is bound (at the international level) by that agreement. 166. It must follow, therefore, that the decision to "unbind" South Africa at the international level must necessarily be taken by Parliament and not the national executive. This is because the power to "unbind" South Africa is corollary of the power to bind it at international law. In domestic parlance, the power to "unbind" the Republic at international law is the same as "repealing an Act", which is done by Parliament 167. There is no provision of the Constitution that either expressly or by implication grants the President and/or the executive the power to withdraw from international agreements_ 168. The Presidenfs unilateral withdrawal from the Rome Statute violates the principle of separation- of powers in that it usurps Parliament's legislative powers_ . ' ::; 41 676 48 i·:·. F' 169. One of the founding values of the South African Constitution, as contained in ' section 1(d), is accountability. In G!enister v President of the Republic of South Africa and Others 2009 (1) SA 283 (CC) at paragraph 36, this Court held that the responsibility of holding the national executive accountable lies with Parliament. 170. By circumventing the Parliamentary processes before withdrawing from the ICC, therefore, the national executive has not only deprived Parliament of a moment to fulfil its constitutional obligation, but it has also deprived the people of South Africa (through their elected representatives in Parliament) an opportunity to debate the decision to withdraw from the ICC. 171. The decision to withdraw also leads to a practical absurdity. There is now a situation where Parliament. as the legislative arm of government empowered by the Constitution to bind the Republic at international law has done so, but .the national executive has unilaterally "pulled the plug" on Parliament's decision. ,·':; 172" It does not make practical sense for the Constitution to allow Parliament to make domestic laws and ratify international agreements, but allow the executive to withdraw as it sees from such international agreements while remaining bound at a domestic level. 173. For all these reasons, it is eontended that the Instrument was issued in violation of section 231 of the Constitution, and is accordingly inval'id and of no force and 42 .. c;; .,.,,.,,:,';.:'cCO\'Wcc•;.;.;n.l . ':Cii';";':''·c.'."·' C'?''::,:c:§;:'C'<(·;;•:•;-,: · ;. \ ''I - .."•'-':'::''.':'"'.\'·. ;;;;: :;:c?<·-?'-0::'; .. ':.\:•'!•! •;··:••' -- ;:•:::tco•·'-c:.;.;:· .. 677-e:'; .,., i 49 ill I VIII. THE VIOLATION OF THE IMPLEMENTATION ACT 174. Section 231(4) of the Constitution provides that international agreements only become law in the Republic once enacted into law by national legislation. Pursuant to this provision, Parliament enacted the Implementation Act. 175. However, the national executive's decision to withdraw from the Rome Statute ·undermines the Implementation Act. 176. The object of the Implementation Act is set out in section 3 thereof and it includes: 176.1. Creating a framework "to ensure that the Statute is effectively implemented in the Republic"; 176.2. Ensuring that anything done in terms ofthe Implementation Act "conforms with the obligations of the Republic in terms of the Statute"; and 176.3. To emble South Africa to coop.erate wrth and assist the ICC. In this r-egard, section 3 provides that the lm plementation Ad was enacted In part to: "(i) enable the Court to make requests for assistance; (ii) provide mechanisms for the surrender to the Court of persons accused of having .committed a crime referred to in the Statute; (iii) enable the Court to sit in the Republic; and {iv) enforce any sentence imposed or order made by the Court" 43 /_...... __ . , ... · .,., ;; 11 :,..,\ ·; ..,._.•,•:,,•,• ..... l o::n "(, .. i.. ·, ...,....,1,.:.• · ' ' ' ,., -- v ..• " -" " ••• ,, " 678••• ' ... ,• •• i I ! 50 177. ln addition, certain provisions of the Implementation- Act create obllgations, or . otherwise give undertakings in temM of which South Africa will render assistance to the lCC For example: i77 .1. Section 2 permits any court in South Africa "to consider, and where eppropriate, to apply conventionel intemailonal/aw, and in particular the Statutrl. 177.2. Section 6 empowers the President, at the request uf the ICC, "and by proclamation in the Gsz:etfe to declare seat of th!i Court." 177.3. Section 7 provides for immunities and prlvi\eges to the ICC. 177.4. In terms o·f section 8, South Africa undertakes to surrender any person for whom a warrant of arrest has been issued by the ICC, end sections 8 -11 provide for the mec-hanisms o·f surrendering such an arrested person to the ICC. iTi'-.5. Sec:l:ions 14, 15, i6 end 20 impos.e a duty on "relevsnt competent i.\ ' . authoritit!S in the R.epub/io" to render assistance to the ICC in relation to I I investigations and pt-cBec1:1tions. 'I i77.6. ·Section 19 provides for: the facilitation of a witness' attendance before the \ I., ICC. 177.7. Section 25 permits ·the facilitation of the payment of fines when- a request i,, ., for asohltance has been received from the ICC "to recover a fine to which 1.:. ' h j 1--' i, a person has been se!Jienced in criminal proceedings in the Court, es j', !i contemplated in Article 77, read vvith Article 109 of the Statute; or for the 1.:., ,.: ';\ 44 .. , ...... 1 ... : .... · .,. ... · " - 679-:- ""? 51 execution of an order for the payment of compemetion for demages to any person made in such proceedin§s; as contemplated in Article 75 of the Statute: 177.8. Section 31 has been enact-sfJ to give effect "to paragraphs 1 (a) and (b) oF Article 103 of the Statute", and section 32 was enacted to give effect to in paragraph 1 (c) of Article 103. 177.9. Section 33 empowers the President, as head of the national executive to enter into any agreement with the lCC, "including any agreement relating to the provision of assistance to the Court, and he or she may agree to MY amendment or revocation of such egreemenf. However, section 33(2) states that the provisions of section 231 of the Constitution apply to such·an agreement by the President. 478. It is apparent that the ob\lgations imposed by the Implementation Act flow directly from South Africa's membership to the Rome Statute, as well as Pariismenfs undertaking to be bound by it in terms of section 231 (2) of the i'· Constitution. ,., 179. WTthout being a member to the Rome $tafute., -south Africa '.vould have no b<>sis to utiiize \lie mechaRisrns of the ICC as set out in the Rome Statute. Article 12 ot the Rome Statute provides tr1at any non·State Party, swh as South Africa, may volunteer to accept the juris.dlction of the ICC. But South AfricaJs departing from tbe statute, which is dear Indication of intention not to volunteer to accept ju-risdiction. r:: 45 680 I. I 52 i 80. Therefore, although the lrnp\ernentation Act has not been repealed, it it has been rendered nugatory, i 81. And lt must be said tr1at even before the issuance of the instrument, the national executive has demonstrated its unwillingness to comply with the demands of the Rome Statute and the Implementation Act, in the course of the AI Bashir saga. This is the subject of the SALC appeaL i 62. It is also significant that the State Respondents now seek to drop the SALC appeal, befure this Court can comment thereon. i 83. It app<>ars that the executive, bruised by judicial decisions like those at Issue in ttle SALC appeal, has ohose11, instead of complying with the decisions and the law, to evade tr,e decisions by altering the law. See the concurring judgment of Yacoob J in this Court's decision in Minister of Home Affri,irs v TNbe 2012 (5) SA467 (CC). ·184. This approach of the President to the Constitution and to J:he judiciary in general is of grave concern. 185. it Is noted that the Third Respondent has annotmced that the Implementation Act will be repea.lecL But this is not for him, a member of the executiVe, to decide. Paliiame11t may (and should) refuse to repeal the Implementation Act ·At1d in any event, a case falls to be determined on the !Bw that applied at the .s.-,._ time that the ctisputeo in question occurred. ' 46 i/' i '· 681 53 186. For these reasons, South Africa's purported withdrawal from the ICC is inconsistent wltl< 'the lmplemsntatlon Act, al'ld i<;; unlawfuL IX, lRRATlONALITY 187. The national executive's decision to withdraw from the Rome Statute is irrational, for three reasons: 187.1. Firstly, ttgoes against section 7(2) ofthe Constitution. 187 .2. Secondly, the obligations under the Rome Statute that South Africa seeks to escape by withdrawing from the Rome Statute are provided for in the Cons\ltl.rtion read with international customary and treaty law. :,1, 187.3. Lastly, the decision to withdraw from the ICC, instead or seeking to ,•· improve or amend It, serves no ·legitimate government purpose. 188. l address each of these grounds 'in tum. Section 7(2) imposes a duty to promote and protect human rlghts 189. Section 7(2) of the Constrtution places a positive obligation -on the State to uphold the rights in ti that the State must give value to i'ts obligation under section 7(2) in everything that it does. i ; ' i I 1 ' 47 682 54 190- The obligation on the State prohibits it from taking regressiVe steps, and enjoins . it to take positive steps to prevent the infringement or the right in the Bill of Rights. lmp\icit in this requirement is that the steps so taken must be reasonable and effective. 191. In order to respect, promote, protect and fultil the rights in the Bill of Rights, the State is required to la.ke steps to c,ombat genocide, crime:> against humanity and war crimes. tn:,)?tl 192. The Preamble to the Rome Statute »ta.tes that State:> partieB to it are: "(MJlndful that during this century millions of children, women 01nd men have been vlctims of unimaginable atrocities that deeply shock the conscience of humanity; [A}ffirm that the most serious crimes of concern to -the international community as a, whole must not go unpunished and that thelr effective ptosecution m"'st be ensured by fuk\ng·mea.sures at the national level and by enhancing international coop·era.tion; [and are} tDJeterrnined to put an end to impunity for the perpetrators of these cr)rnes and thus to contribute to the prevention of such crtmes." 183: The President's decision to withdraw from the Rome Siatute ls a regressiVe step e.nd a betrayal of the values of the Constitution. i94. There is an especial tr crime of apar'me\d, and once a. global standard-bearer for progressive human Oghts oM 111" hS£ Moom< th< fimt mmon 'm h-to f 4·8 xJ J::MF 683 55 the ICC 196. The State Respondents are called on to justify how allowing tnose accused of, potentially, the murder of millions ·of innocents to escape justice can ever be consistent wfth section 7(2) o-f the Constitution. 196. Interpreted against the obligations that the Constitution places on South Africa, the President's decision to witlldraw from the Rome Statute cannot be said to be and effective. It is therefore irrationaL Obligations that the State seeks to escape are provided for il1 the Constitution 197. The obligation that the State seeks to escape by Withdrawing from the Rome Statute will continue to bind tl1e State by virtue of the Constitution read with international law. 198. It is thus meaningless, and irratlonal, to withdraw from the Rome Statute. 199. In the Instrument of Withdrawal. South Africa states as follows: "AND WHEREAS the Republic of South Africa has found that its obligations w!th respect to the peaceful resolution of conf!lcts at times are incompatible with the interpretation given by the lntern:>.tional Criminal Court of obllgatl.ons contalned In the Rome Statute of the lntE>rnational Criminal Court as explained in the attachment het.eto ...." 2.00. tt is ole;;r from the (l.bo'ic, CJ,flO frOm tne Media Statement that by Withdrawing 49 684 56 from the Rome Statute, the President seeks to avoid the obligation to arrest l persons that have committed international crimes, like genocide or tortvre. 20'1. But the prohibitions on these crimes remain effective in African law, either by virtue of the direct provisions of the Constitution, or by virtue of customary law read with section 232 of the Cons\ltution, or by virtue of other treaties. 202. Section 232 of the Constitution makes plain that "customary international lew is Jaw in the Republic, unless it is inconsistent with the Constitution of an Act of \I, I l ,,,, :1 j Parliament" .1 1 ' 203. In SALC, for example, the SCAheld at paragraph 37: "Along with tortute, the inten1at!onal crimes of piracy, slave-ttading, war crimes, crim<'Z against humanity, genoch:ie and apartheid require even mthe absence of bintiing int.ernat!ol)al-trea.ty law, to suppress such conduct because 'all states have' an interest as th . 204. And in the ca:oe of genocide, the Convention an the .and Punishment of the Crime of Genocide ('the Genocide ap.plies. Soutl1 Africa acceded to this treaty 01:1 10 December 1988. Article N of the ·Gen.octde stste.s-: 50 685 57 "Persons committing genocide or any of the other acts enumerated in article Ill shall· be purJlshed, whether they are constltutlonally responsible rulers, pub!lc officials or private indivlduals." 205. Thus. if even if Africa leaves the ICC, and the Implementation Act were repealed, if President ,<1.1 Bashlr returned to South Africa, the government would be obli-ged by law to arrest and prosecute him. 206, South Africa would be able to carry out prosecutions much less effectively than the ICC would, as it lacks the resources and expertise of the ICC. 207. But the State Respondents' sole justification for the Instrument is that there will be diplomatic repercussions to prosecuting foreign officials, This remains the case whether the prosecution is carried out effectively or not 208. There is "accordingly no purpose aohieved by the lnstrum;,nt. It is irrationaL Decision to withdraw instead of to seek reform serves no legitimate government purpose 209. South Africa's reason for withdrawing from the Rome Statute is because it wishes to pursue a peace negotiatir,g agenda within the African region, as wet! as to glve effeot to its obligations under the African Uni 210. "CASAC contends that none of these r<>asons justifies a. decision to withdraw 51 •. ... ·· .._,_,,.,;' :-;: '"': ... 1 ,I · 686J \' r i 58 frorn the Rome Statult.a. At best, they should motlvate South Africa to work to reform those elements of the lCC system which have been criticised. As shown above,.the criticism that the iCC targets African leaders is already being addressed: A fotmal investigation is underway in Georgia, and most preliminary examinations now take place in countries outside of Africa. 2 i 1. This more so in 1\ght of the fact that the reasons for which South Africa. became a party to the Rome Statute in tem1s of sections 231(1) and (2) of the Constitution still remain. 212. There may be tension between customary intemai:ior1a\ Jaw which recogr1ises diplomatic immunity on the one hand, and article 27 of the Rome Statute which does r1ot, on the other. 213. But in tem1s of Article 97 of tr,e Rome Statute, a State party to the Rome · Statute that receives a request "in relation to which it identifies problems which .may impede or prevent the execuaon of the request', shall consult witl't the ICC in order to reso\ve the matter. 214, The problems contemplated in Article 97 ·Include "[t]he fact that exec!Aion of the requ'ii!st in its current rom1 would require the requested state to breach a pre.- exlsf:J'ng treaty obHgaaon unde-rtaken 'Nith respect to another State." 2 i 5. \n addition, Artic1e 98 prohibits the ICC from proceeding- 52 687 59 "wlth a reqw 2i 6. The Rome Statute thus its"' if oo11templates that State Parties wilt, from time to tim"', struggle with the duties imposed unde,r the Statute. Mechanisms are put ln place by whicl:l these problems can be addressed. There is no suggestion that these mechanisms have been exhaw;;ted. 2.i7. To resort to a complete withdrawal from th8 Rome State and from the lCC in such cirwmstanc"'s is irrational. X. CONCLUSION AND COSTS '" 218. This application enjoins this Court to consider a matter within its pOW$[. 219. That being so, were this Court to come to the conciusion that the instrument is , inconsistent with the Constltuoon fol" a:ny reason, the Cowrt mw;t, by virtue of sectiol"\ 17Z(1)(a) of ttle Constitutiun, make a declaration-to that effect. 220. ln addition and in any event, this Court has wide rem<; whatever order is just and equttable in the circumstance1;, by virtue of section HZ(i)(b) ofthe Constitutlort. 11; 53 ' ...... ""'.,.,.,., ..... ·: ·.;;'1¥.-o,;-·. E::."· ...· •. -,·.·.·•,'-.'. r.-."-·-.·. '••• ...... , ,.,.,, ...... """'-- "'""""'" ""'1'\•" 688• ·;:o,; ...... , '' ' • •• """""' •. -· ;,',.. ,'., :.···)' ,.,. •': v '' '··. .-' .... ·,•.· ., .• _ . ; "• •, '·''·'• '·') ' ' 60 221. CASAC submits that the order sought in paragraph 4 of the notice. of motion fits onder secti1'!n 172(1)(a), and the further relief set ou± in paragraph 5 of the notice of motion is in the circumst<'!nces just and. eq1.1itable. in terms of section 222. In the event that this Court upholds one or more of CASAC's challenges, the tnstrJment must be declared to be inconsistent with the Constitution and invalid: 223. CASAC further seeks an order that the costs of this application are to be paid by the First to Third Respondents, together with any other Respondent that opposes this applicat1on, jointly and severally, the one paying the other to be absolved, such costs to include the costs of three oouns.el. 2.24. This case was prep;:j.red and filed on extremely urgent basis. The Instrument was publicised on Friday 21 October, and these papers were prepared by three counsel working over the weekend, so that CASAC could file ,, in this Court by Monday 24 Oc;tober .. ·In light of the time constraints placed on CASAC and the importarrce and complexity of the issues ·set out .a.bove, thiB could not have been done without the benefrt of three counseL PARMANANDA: LAWSON NA!DOO 54 \' i . ,.,. , ., ., ""·'·"'"'''''11'.-w·w.,,,\,T 1 · · .. ,_,,. ·:•;·:··:r;, ·. :'" 689 i r 61 1certify that: Knew and underotood llvi. contents thereof, Had no objection to taking the oath; and · o) Considered the oath to be binding on Ills conscience. meThe God'. Deponent then uttered the words 'I sw"'sr lhBt the contents of this are true, so help DA TEO AT CAPE TOWN THIS DAY OF OCTOBER 2016. COMMISSIONER OF OATHS :;· I" I I ni: 690 If PLN I I, I I I I tI \' J• \; 691 I( PL N1'' 63 CONSTITUTION of the VOlUNTARY ASSOCIATION known as the COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION (Abbreviatlort : "CASAC") IUCHARD ROSENTHAL ATfORNEYS ::- ?en\hQus< 011101 <·Z7·ZHZ3197S [Offi<:O] 411\ Rw To"""""' 'I&W..""'Sil"ee't Hlggovale 800'1..1 St'l...i&l Aftlr;:a q·elernx' M. Eo: I 692 64 XN DEX Cl<:1use Heading Page l ESTABUSfil"iENT 1 2 D.EFINffiONS AND INTERPRETATION :t 3 REG!STERED OFFICE AND SECRET,CI.RlAT 2 4 PURPOSE AND SOLE OBJEcr 3 5 GUIDING PRINCIPLES 3 6 MEMBERSHIP 5 7 ADMISSION AND TERMINATION OF f'1EMBERSHIP 6 8 RlGl-ITS Of MEMBERSHIP 7 9 OBllGATIONS OF MEMBERS 8 10. EXECIJTIVE COMM:rrTEE 8 11 VACAHNG OFFICE 9 12. PROCEDURE AT MEffiNGS OF THE 8 SQ-\EDUlE ''A:'- General Investment and AdmiRistrative- Powers SCHEDULE ''B"- Prescribed Fiscal Conditions lnitiallR ****** i·· I :; \i•. 693 65 l, ESTABJJSHMENT There is hereby established a Voluntary Association to be known as the COUNCIL !'OR THE ADVANCEMENT OF THE SOUTH · AFRlCAN CONSTITUTION (Abbreviation : CASAC) in order to promote the Purpose and underteke the Sole Object hereinafter stipulated, upon tile terms and conditions contemplated by thls Consti\:ution. DE;A:NIDONS AND INTERPRETAUON In this Constitution, Llnless the clearly otherwise indicates: "Advisory Council'' means the Members of ttle Advisory Council in General Meeting. "CASAC' means the Voluntary Association established in terms of this ConStitution, known as the "Council for the Advancement of the South African Constitution" "Commissioner" means the Commissioner for The South African Revenue service 2.. 4 "Executive Committee". means the body vested with executive responsibility for the management of ·the affairs of CllSAC. 2.5 "Members of the means the indiVidual persons whose names Advisory COUtKil" are listed on the attar:hed Schedule styled "Initial of the Advlsory Council"; but the term shall thereafter include all such other persot:ts as may from lime to time be admitt.ed to Membership Page 1 694 66 of the Advisory Council, in accord;once with 6.1.1 of this Constitution. "ll1e Office" means the Registered Office of CJlSAC referred to ln clause 3 of this Constltutlon. 2.7 "The Republic" means the Republic of South Africa. 2.8 The masculine lndudes the feminine; the singular includes the plural; and · tem 2.9 Any reference to the Income Tax Act; the Nonprofit Organisations Act; or any other Act or Statute mentloned or referred to hereunder, including tt1e Sdiedules and Regulations appllcable tilereto, shall be to denote such Acts, Statutes, Schedules, and Regu\;:;tions as enacted, and amended from time to time, including legisl;;.tion constituting a re-enactment or substibJtion thereof. t·\ , I 2.10 By virtue of the substantive terms of thls Constitut:lon1 and pursuant to registration of CftSAC. in terms of me Nonprofit Organisations Act as contemplatK! by dause 2.2. hereunder, shall be a separate juris\jc person distinct from its ri'lembers and office bearers; and as such, it may in its own name, ent-er into controcts; sue or be sued; acquire and· hold assets; undertake liabilities; and engage generally in other trensactions de<'lrned 21ppropriate from time to time. 3. REGISTERED OFFICE AND SECRET."RRAT CJ"SAC shall be established as-a separate legal entity with its registered office located at the Demomltic Governance and RJghts Unit (OGRU) of tile Department of Public Law, University of Cape Town. The DGRU shall constitl.lte the secretariat of CASAC for sucl'1 perlod determined by the Execu.tive Committee as may be mutually :· \.: 695 67 i I PURPOSE AND SOLE OBJEcr The Purpose and Sole Object of CPSAC be to promote, develop, and affirm the rights and principles set out ln the South Africatl Constitution, in order to facilitate and advance progressiVe constitutionalism and deepen democracy in South Africa, which may include: 4.1 The initiaMn, fundillg and support of projects and programmes collsistent with and conducive to the achievement of such Purpose and Object; 4.2 The sponsorship of relevant lectures, workshops, calloq.uio, public engagements, dialogue, r0search, publiG!Jtions, advocacy, and other similar activities; 4.3 The prov1s1on of information, counsel, and advice, and the ihltiation and or support of and in the it1terest; conduct relevant litigetio\'1 advocacy 1 public ,. 4.4 The conduct of a sustained engagement and dialogue with Government at ali levels; and .. with political and advocacy bodies, labour unions, business organisations, fuith communitles, social movements, and other similar · organisations within the Republic, and elsewhere; 4.5 1l1e preparation and submission of representations and relevant it1formation to ·.;: Parliament, the Human Rights Commission, the Public Prot.ector, and other statutoly and independent bodies colicemed with constilutional a'Bmocrncy wtthin the Republic, or ln an lntematior.! \ Page 3 I' I 696 68 5. GUIDING PRINCIPL!:'S. Whilst acknowledging the interdep<:mdence and importance of all rights and volues represented in the South African Constitution, the i'oliowing Guiding Principles are recorded as having motivated the establishment of CASAC viz:- • ' • . l 5.1 That the idoo of ';orogressive constitutionalism" should be seen as a pivotal fovnding principle. 5.2 That the Constitution as the supreme faw of t7e land, provides a framework for the social and economic transrorrnation of South Africa, ;md ,for a ,.,,.. delibemtive, participatory;. and Inclusive democracy. This framework together with fts l.fl)der!ytng Vl:l!ues and founding principles needs to be protected and advanced· 5.3 Thai" the O:mstitulion must be subject to on-going cr!IJr::a! appraise& to assess its efficacy as the needs of the country change. 77Jere may be a need l."o debate and lobby for conslituUona! and !egisfatfve reform to enhance the legiiJm;,cy of the demoCIC!tic polftica! process. The Const.ib.Jijon must be a !7ving1 not a static document that evolves to deepen democracy. 5. 4 That the Prindp!e of the Rule of Li'IW is a cr!Ucal building block In seeking to pursue the concept of constitutfonalism; public and private. power must oe exerdsed within the law in order to retain legit!.maC)I; and to enhima; a culture of responsibility and acc0vntabiltty ;to gvard against the arbitrary use and abuse ofpower and authoiit/...... · 5.5 That judid&/independence is1 in tum, an !ndispenr,abfe elemenC if not a pre- requisite for the Rule qf Law and the integrity of the court: system if it Is to dispense justice that promotes substantive equality as well as procedural ' faime..>s. '.i·: s. 6 That in order for people tp organise lawfully to daim rights, and to participate meaningfully in democratic deddon-making, eM! liberiJes sl/ch as freedom of speech, access to information, and a free and toferant pol/t!ro! pr.ooess are essentjal Page4 ... ,.,, •••.. ... 697 I ! '· \ 69 SJ. That the rea/iQ!iion of socio-economk rights is intertwined with civil liberties and polfticaf freedoms. Social and economic marginalisation deprives people of their fundamental right to five wftY? security and dignity and is e bel:raya! of the Constitviion Endemic poverty and inequality renders South Africa a fragile socief:Yr where the poor and the vulnerable, espedaffy women and children1 ilre condemned to the fringes and easily exploited. There is an unE!cceptab!e and unsustainable gap between the vision of the Constitution ·and the lived reality for far too many citizens, This gap must be dosed Providing people with access to decent education,. adequate housing1 and health care1 and with the protection of a social security is essential for e cohesive society and the future prosperity of the nation. 5.8 That as l:radltional orJrodoxies are being questioaed in the global economy; so too must the Constitution t:Eke into consideration the socio-economic context in which it exists and be reponsiVe to the scale, urgency and inter- connectedness of the challenges of globalization and sustainable development. s. 9 That the WJ!ues that contJibute to building a society with effedive systems of open governance - ethical behaviour;. accountab!lif:Yr competence, hard worf;y i"' a spirit of pubfic service with consequences fvr poor performance or corrvpt ! ' conduct; non-violent resolution of disputes, and non partisanship - also need to be respected. 5.10 That a rights-based culture must also focus on the responsibi!fties and ·) obligations thai: go with these rights, encorJraging cluzens be active in improving their own ltve and i::ommunitie;,: in holding government to account through parlicipattve processes and su'd:tJined social dia!og!le, The gpa! is a . deliberatiVe democracy that cerebrates diversif:Jir where respect for tbe views:. and bellefs of others 1s the norm, and thus builds solidarity between people from different social groups 6. MEMBERSH!P 6.1 U,pon Initial: establishment of Cf!.SAC there shall ·be only one c:ategory of l"iembership- viz: Membership of the Advisory Council provided fuat proV1Sioll is also made· for the establlshment of other categories of Page 5 ....• __, ... 1 .:.'.';:·f!.:. .. ..;::, .. l ·· · 698.. \ I i . ' . ' . I 70 I· i I ').; Membership, as may be deemed appropriate by the Executive Committee from H . time to time, that is to say:- i I 6.1.1 Membership of the AdVisory Council i'0i I This category of Membership shall comprise those indMdual persons 'f•·.,,. who. are admitted as such in terms of .this Constitution Upon initial ::-·, !/ establishment of CASAC, a.od whose names are reflected in the ;;:·: Schedule attached l1ereto. Such initial may be ..,: ougmented from tlme to time to include such other individual persons :-": as the Executive Committee may deem appropriate, at its discretion. 1\ '' I' 6,12. Associated Membership ! This category or Membership sholl comprise such institutions, \a organisotions, and other juristic persons, as the Executive Committee (h. in its sole and absolute discretion may deem appropriate from time to rii time. 6.13 Honorary Membership This category of Membership shall comptise eminent persons as i·· the Executive Committee, in its sole and absolute discretion, may wish I to acknowledge in this manner by the conferment of honotcry membership status, in recognition of their personal contribution to the advancement of constitutionalism and democracy in Soum Africa, Other categories of Membership may also be established at any time by deCISion of ExecutiVe Committee, at its.· sole .. ·may deem appropriate, m which event such further categories 6f Membership shall. confer upon their constituent members such rights, and be subject to such conditlons, as the Executive Committee may then stipwlate with reference .,•' thereto. 7, .. ,,, ... ADHISS1QN TO.AtJtlTERMIN(\l10N Of MJ:MBEBSttl:P 7.1 IH admitting new t-lember.s to the Advisory Councll, and new Members to any oti Page6 '"I I I . ·,•· , .. __ ...... ,...... ,..r... :·:·r' 1••• ·, ' ., '; ' 699 r, f I 71 i' entire discreijon, determine the appropriate e1igib1Uty criteria and conditions attaching to such membership, as it may deem appropriate from time to time, Such criteria shall include that any riew member shaU subscribe to the Guiding Principles as outllned In clause 5 above. Membership of, the Advisory Council, and of any other category of Membership shall be terminable at any time at the sole and absolute discretion of .the E,' 7.3 Membersl'lip of CPSAC shall also ipso fscto: upon the death of a member who Is a 11atural person; or upon the dissolutiotl or iinal liquidation of any Member which is an organisation, or juristic person; or \·'; 7.3.2- upon receipt at The Office of the written resignation of the Member. \) ! '' i' I... . 7.4 For the avoidance ·of doubt, 1t is heneby confirmed that the Executive Committee shall have disw"tion with regard to the admission, suspension, or termim\tion of Membership as the case may be. The EXecutiVe Commlttee s'hall \f requested furnish .reasons .or mab.Jration with respect to any such decision. 8 . . RIGHTS OF Members of the Advisor; Council setihe strategic framework for the projecls and· other interventions of CASAC, making recommendations and the Executive Committee to deiine CASAC's projects at1d priorities. IJ\Ilth respect to the rights' and fl notwithstanding allything to the contrary hereinbefore contalried 1 as follows > Page 7 .. •• ...... ;·•l'.· >:: "''"""1"·''"'"'"'':"'''".'-'cr:co,·, .. · ·:;-:: "'::•<·"if"·J::700 . i ,% 72 8.1 That only Members of the Advisory Coundl shall have tlte right to attend, speak". and wte at General .Meetings. 8.2 That Members in other categories, or their d\liY authorised representatives, m;:Jy be invited to attend and speak - but they may not vote - at General Meetings. 8.3 That all Members, irrespective of their category of Membership, shall be entitled to recetve copies of the Annual Financial Statements and Annual Reports issued by the Ex<'cutive Committee from time to time. 9. OBliGJl.TIONS OFl.1EMBEP$ 9.1 Subject to the prior approval of General Meeting of the Advisory Council, the Executive Committee may from time to time impose i'i membership levy or contribution to make provision for Cf.lSAC's operational costs and financial· committnellts1 in which event there may be a difFerentiation in the amounts payable by different categories of Member, and by differelit Members within the same category. 9.2 In the event of a Member failing to remit payment of any such required membership levy or as rnay be required at any time, and remainil 10.1 Responsibility for tile executive· management. and governance of \lie organisatior<, including the detenminatlon of its budget and strategic direction, shall vest ln the Executive Commitl:ee. Page 8 .. • ·- .. : 1 ... · .,. ,.; ...... , ...... ::-;·. " - ...• .. ·.·..•. ; .. -..• --····· .. -·: ...... 7011 I i n I ; 1{L2 The executive Commiltee shall comprise a m1nm1urn of Six (6) and a maximum of Eleven (11) persons, of whom one shall be chosen by the Executive Committee as its Chairperson, Other Office "Bearers may be appointed from time tG time by the Executive Committee as it may consider· necessary, induding: 10.2.1 .A Deputy Chairperson; andjor 10.2.2 An Secretary. 10,3 The initial members of the Executive Committee shall ·comprise those l'1embers of the AdVisory Council as are so designated in the Schedule to this Constitution, Such initial Members of the Execvtlve Committee shalt hold office until the second·occurring Annual General Meeting following the adoption of this Constitution, but they shall be eligible for re-appointment thereafter ln terms of the succeeding provisions. 10.4 At the second·occurring Annual General Meeting, the Members of the Advisory Council shall elect from their number the persons who are to serve on the Executive Committee for the ensuing Two (2) year period; with the intent and purpose that at 2·year intervals a similar election shall take place (at alternate Annual General Meetings) in order to make due provision for the appointment of the persons who shall serve as of the Executive Committee for the ensuing 2-year period. 10.5 Subject to the maximum number of IV!embers si: 10.6 Notwithstanding the aforegoing, the Executive Committee may, by Resolution supported by no less than percent (75%) of its members suspend or remove from office any member of the EXecutlve ComrnittP..-e, whether elected or co-opted, if it shall consider this to be ·in the best lnterests of the organisation, 702 74 11, VACATING OFFICE Members 'of the Executive Committee shall vacate office in the event that any such member:- 11.1 dies 01· tenders her/hls resignation in writingi or 11.2 oompletes the term of office for which she/he shall have been appointed, without subsequent re-election or reco··optl.oni or 11.3 becomes of unsound mind; or othervvise unfit or Incapable of acting in this .capacity; · 11A · beoomes disqualified In terms of The Trust Property Control Act, or The Companies Act, or any legislation substib.rted therefor from time to time, from acting as a Trustee, Director, or ill another fiduciary capadty; or 11.5 is removed, in terms of a Resoi,Jtion of the ExecUtiVe Commtttee duly passed in acoordance with the provisions of clause 10.6 above. 12. ... PROCEDURE OETHE EXECUTIVE COM1ViiTTEE The Exeoutive Committee shall conduct its meetings and regulate its proceedings, as it may ftnd cotwenlent from time to time, provided that: 12..1 The· Chairperson, or in his(her absence, the Deputy Choirperson, if any, shall· chair meetings of '(he Executive Committee. In -the absence of both lhe Chairperson and Deputy Chairperson, the remaining members of the Executive Cornmlttee shall elect from their number an actlng Chairperson. 12.2. The Chairperson 01' DepUty Chairperson, if any, may at any lime requisition and convene a meeting af the Executive Cornmlttee, but they shall be obliged p,g,10 I' - •· · .c.;,·:·'!:• ·• -·m:-rr:ql, 703 ';, I I 75 to do so, if so requested in writing by any Two (2) Member.> of the Executive Committee. 12.3 · The quorum necessary for the transactiO!'\ of any busin<".SS by the Executive Committee shall be a majority of its members. 12A At all meetings of the Executive committee each of its members shall have ONE (1) vote. 12.5 Questions arlslng shall be decided by a majority of votes, In the event of an equality o'f votes, the Chairperson shall have a second or casting vote. 12.6 Written minutes sho.\1 be l<:ept of ail of the Executive C 12.].1 Appoint, remove, and substitute any of the persons to whom such delegation is made; and lndt.:de new appointees who need t1ot necessarily be members of the executive Gommittee; and n.7.2 Nomil'late the personfs· who shall serve as Chairperson (and, if deemed necessary, as Deputy Chairperson) of any such sulreommittee; and 1.2..73 Stipulate the period of notice; the quorum;. ·the voting; and any oti1er procedural formalities affecting meetings and decisions of such sub- Committee .... _... 1 .••• - ,. r<·;V..' '"'1"0.._.,._.,.._...,,, ""/'\-' •'•I •• , "N'\' •',•; •"' i \ 704 I ! 1 I I \ 76 I, I \' I !' 13. PO WE;\§ AND DISCRtTION$ OF THE EXECl.fTTVE SubJect to the Prescribed Fiscal Conditlons referred to in clause 21, the Ex,ecutive Committee shall have the underrnentioned powers and discretions, viz: 13.1 The power to determine projects, programmes, and activities of CPSAC, and generally the manner In which the resources of be deployed and apprap1iated from time to time. 13.2. The power t.o determine how the funds of CPSAC shall be invested from time to time, with the intent and purpose thot ali such funds shall be available to the E.xecut\Ve Committ-ee to appropriate in pursuani)O of the Purpose and Sole Object as the EXecutive Committee may deem appropriate, from time to time. 13.3 The General Investrnent and Administratrve Powers, set forth in Schedule ''A" henem, subject to the provisions contained in the overrldlng Prescribed Flsca\ Conditions referred tD in clause 21. 13.4 The power to at:Cumulate ond capitalise eny portion of its receipts, and to determirle Vfhich of .such receipts should be regarded as income, and ''· which receipts should be regarded as a;pitol; including liquidation dividends received, or any return of capital or capitalisation of pr'ofrts (in the case of companies Whose shares constitute a portion of the funds of CASAC); and the ExecutiVe Committee may generally decide any other · question affecting the distinction between and income, as it may deem ilpproprlate. 13.5 Any such further powers and discretions as the Executive Commlttee may find necessary to execute its mandate responsibilities hereunder, and genE':tal!y to promote the stated Purposes and Sole Object of CASAC. 705 14. AD\IlSORY COUNCJ;L A General of the individual voting members of CFGl\C shall be termed the Adv\sory Councilf which may be convened and shall conduct its affairs in accoFdance i with the following provislqns, vlz::· ; ''i :; 14.1 Annual General Meeting? An Annual General Meeting of the Advisory Council shall be held in each year, the first of which shall be held wlthln a period of fifteen (15) months after the adoption of this Constitution. Subsequent Annual General Meetings shall be held as soon as possible, but in any event within four (4) months after the end of each. f1nancial year, The business of an Annual Generol Meeting shall indude, inter alia: HL1 The presentation and adoption of the ExecutiVe Committee's Annual Report; . 14.1.2 The consideration of the Annual F1nancial Statements; ,, i, 14.1.3 The consideration of an annual Budget for the ensuing year/s; I,, I ' 14.1.4 The election at 2-yeilr intervals,_ or as and .when required, .of persons tc serve as members ofthe t::x:etutive"comrnittee; · · · · 14.1.5 The appointment of Auditors; and 14.1.6 Such other matters as may be coPsidered appropriate by the Mee:ting. 14.2. Other General Wteetings I i Other Genera\ Meetings of the Advisory Council may be convened from time to time as may be considered necessary, at the-instance of: 706 78 142.1 The &ecutive Committee; or 14.2.2. The Chalrperson (or Deputy Chairperson), tf any; or 14.2.3 Ten (10) or more Members of the Adv1sorf Coundl, or 2D% of its Members (whichever number may be the greater). 14.3 General Meeting Notices Annual Generai!Yleetings shall be convened on not less than twenty-one (21) days' prior wrttten flOtke addressed to all Members of the Advisory Council, · Other General !Yleetings shall be convened on not less than Fourteen (14) days' written notice to such Members. The notice shall state in broad terms the business to be transacted at the forthcoming Meeting. 14A Resolutions and Voting 14.4.1 A resolution put to the vote at a meeting of the Advisory Council shall be decided by a show of hands, unless tt1e person chairing the meeting shall decide that a poll is required. A poll shall be taken in such manner as may be dire®d by the chair; and the result of the poll shall be deemed to constitute the resolution of the fl 14.4.2 Each, Member of the Advisory Council present or represet1ted, at the meetil'\,9shall be entitied to One (1) vote. Hembers in other categories m 14,5 Ovorum 1l1e qvorum ne\.essary for a meeting of the. Advisory Couhdl shall compr\se at least Twenty flercent (20%) of its members present or deemed to be present at such Meeting. 707 79 14.6 Adjoummen!; In the event of any meeting of the Advisory Council being duty convened but no quorum being present, the meeting may be to another date, which must be not less than five (5) days thereafter1 as may be determined by the Executive Committee. Written notice of such adjournment must be given to all Members of tile Advisory Council. At such reconvened General Meeting1 the of the Advisory Coundl then present or deemed to be present shall then be deemed to constitute a quorum. 14.7 Wr!tten Minutes shall be kept of all proceedings of the Advisory Council, '.i,. including a record of all. persons present or deemed to be ptesent. The Minutes shall be signed by the person who chaired the meeting, or the person · who c.l)airs the next-succeeding meeting, and they shall be o\lililable for inspection or copying by any member of the Advisory Coundl. 1.5. NQTIC£S. 15.1 Notices of Meetings shall be delivered either persooally, electronically, by prepaid registered post, or in such other mar1ner as may be deemed appropriate by the Executive Cornmittpe, and they shall be directed to the last known address of the Members concerned. . 15.2 The inadvertent, but bona fide, omission to address to any member snail not invalidate the proceedings of the ensuing meeting. 15.3 ·lf dellvered personally, notices shall be deerned to have been received on the date of dellvery. 15.4 If despatched eleclronicaily, notices shall be deemed to have been received- twenty-four (2.4) hours after data transmissloll. . 15.5 If despatched by pr.epaid registered poSt to an address in the Republic, notices shall be deemed to. been received ftve (S) deys after date of deSpatch. Page 15 \. 708 I I 1.. 80 16. ANNUAL FINANCIALYF;l\R, flOOKS OF ACCOUNT, AND ANNUAL F1NANQALS)ATEt'JENTS 16.1 Unless otherwise determined by Resolution of the Advisory Council, wlth tl1e . authority of the Commissioner, the Annual Rnanclal Year rJi CASAC shall be from 1 March in each year to the last day rJi F'ebruary in the sucoeeding year. 16.2. The Execulive Committee shall ensure that CASAC keeps proper books of account. Flna.nclal Statements (including Capit.al and Revenue accounts) shall be prepared at least· once a year, in accordance with generally accepted accounting practice in the Republic, and shall dearly reflect the affairs of CPSAC. The books of account and. Rnancial St 16.3 A copy of the Annual Rnancial Statements shall be made available to each Member of CASAC as soon as possible after the close of the financial year. 17. BANKING ACCOUNT 17.1 CASAC's financial affairs shall be conducted by means of a banking account. I' 17.2. ,11.1! cheques, promissory notes, and ott\er documents requiring signature on (lehal1' of CflSAC St1all be signed by such one ore more persons ·as may b.e authorised tilereto by the Executive Committee from time tc iime. AMENDMENTS TO CQNSTTilJTION AND DISSQLW]Q]'l 18.1 The Members of me Ad\ftsory Col:lncil at a dLily convened and quo rate Meeting may at any ume resolve that:- 18.1.1 the terms of this CDf1Stit\Jtion be arnencled"; and/or 709 81 the nome of \)SAC be and/or C/l$AC be dissolved; ProVided that, in any suc\'1 instance, written notice must be given to an· 1'1embers of the Advisory Council not less than (28) days prior to the date of the Meeting at which the Resolution is to be considered, and the noljce must state the nature of the resolution to be proposed. Any such resolution :;hall be deemed to have been duly adopted only tf it is supported by no Je:;s ti1an a Seventy-Five percent (75%) majority of ali the Members of the Advisory Council actually present or represented at a quorate Meeting, r,·:.<·,·.,... , •' 182 A copy of the Amending Deed or Resolution, as the case may be, shall be submitted forthwith upon Its adoption to the Commissioner, and if applicable, also to the Director appointed in terms of the Nonprufit Or9aniSalions Ad- 13.3 ln the event of the dissolution of CASAC, any net residue of funds remaining after provision for all its residual commitments, liabilities and expenses, shall be given or transferred to one or more other ellgible institutions having the same or similar objectives to those of CASAC, as may be determined by Resolution of the Advisory Council, and approved by the Commissioner 19- 19.1 Subject to the limitations of t1'1e applicable law, each member of the Executive Committee, and all other office bearers, shall be Indemnified by CASAC for the consequences of acts· done and decisions taken in good faith on CASACs behalf; and it shall be the duty of CPSAC to pay all costs and t-xpenses wh1ch any such person may Incur, or become liable for, as a result of contracts entered into, or acts done ln such capacity, with -the authority of the Executive Committee. 19.2 Subject to the provisions of any relevant statute, no member of the Executive Committee or other office bearer of CASAC1 sha!! be liable for the acts, Page i 1 "' i.' ...... : " •'i · ·:y,,;•:·::·.o·:•:-tc'•;r.:.tKS•:O:•:: ,:-·:. ;•::: .':-: :.... •;•:•"··;•:•::. ::-_:"fi'"''''"·1' ,,,, •.,,.:·sl·-:'::":::: ·. ...710 I F' 82 receipts, neglects or of any other member or office bearer, or for having joined in any receipt or other act for conformity, or for ony loss or expense suffered by CASAC through the insufficiency or deficiency of title to any property acquired by CJJSAC; or for t:he insufficiency or deficiency of any security in or on which tl AM SIT Of DISCR,ffiONS Where discretions are ve.sted in the Executive Committee or in the Members of the Advisory Council in tem . 2.1, PRESCRJBED F1SCAL CONDJ;:\IQNS Anything t:o me contrarY' hereinbefore contained or implied notw!thstaoding, the powers of the EXecll\lve Committee a11d of the ArJvisorf Council, shall be subject to i •• ') compliance at a\1 times with the conditions stipulated in respect of Public Benefit Organlsotions terms of section 30 of me Income Tax Act, as reaa with tile Nintl1 Scheidule ther-eto. 22. REGISTEAUON : NONPR0FIT ORGANISATI:QNS [iCI The executive Committee shall be required to procure that CASAC is registered in 'terms of the Non-Profit Organisation's Act, No. 71 of 1997, Accordingly, and having reg·ard t:o the requirements of that Act, it is hereby recorded and stipulated with respect to CflSAC (Hereirlafter in this cl:ouse referred to as {''the organisation"), as ·" Page 18 711 83 follows: The organisatim's name shall be as stated in clause 1; 22..2 The .organisat1on's Purpose and Sole Object shall be as stated in clauses 4 and 5; 22..3. The organisation's income and property shall not be distributable to its Members or to its office-bearers, save insofar as they may be reimbursed for reasonable out of pocket expenses incurred in tile a' 2.2..4 The organisation shall be deemed to be a body corporate, and sha!l have an Identity separate and distinct from its Members, as envisaged by clause 2..8; 22.5 The organisatlon shall continue to exist notwithstanding periodic changes that may occur in the composition of its Membership 1 as envisaged by clauses 2..8 and 6; 2.2..6 The members and Office-Bearers sh:all have no lights in the property or other assets of· the organisation by Virtue of their or office; 2.2..7 The powers of the organisation shall be as set furtllln this Constitution/ including clause 13, as read with Schedules A" and .. "B" hereto; (, ( ... : i.\ 2.2.8 Tne- organisatlonat structure and mechanisms foe the i\ organisation's governance shall be as. set forth· in this Constitution, including clauses 6, 10 and 14; 22..9 The rules for convening and cotJducting meetings, including quorums required for, and the minutes to be kept of those meetings, shall be as stated in clauses 12. and lA·;. i•" \ ...{t.::::-41 • -ww,"·;.-J • r.::'il I•:• ':C 'i' 1": ll •,-;;: '1 'f•'•:, 712\i ' \iii ! I"' 84 22.10 The manner in which decisions are to be made shall be as stated in clauses 12 and 14; 22.11 The Organisation's tlnandal· tn;nsactions must be conducted by means of a banking account, as stated in clause 17.1; 22.12 The date for the end of the organisation's financial year shaH be as stated. in clause 16.1; 22.13 The procedure for changing the constitution s.hall be as stated in clause 18; 22.1.4 ll1e procedure by which the Organisotion may be wound up or dissolved shall be as stated in clause 18; 22.15 If the Organisation is wound up or dissolved, any asset remaining after all its liabilities have been met, must be transferred to some other ellglble Public Benefit Organisation, haVing the same or similar objectives, as stated in clause 18.3, as read with Schedule "6''. 23. FURTHER fORMALffiES 23,1 A "round robin"· resolution - that is a resolution "in writlng, supported and signed unanimously by all persoGs ellgibi.e to ·vote be valid as if passed at a duly conveMd meeting; and, unless stated to the contmry, shall be deemed- to have been passed as at the dote of the last signature thereto. MY such "round r 23.2 for the avoidance of doubt, It is further slipu1ated that general meetings of the Advisory Council, and meetings of the Executive Committee, may be held at any. time or t\m<:s, and at any place or places, subject to due notice· having been glver\ thereofi and such meetings may be 'held simultaneously in more than one place, provided that all persons involved are linked to each other by :"'" '·1•• \ - '". 713! 10{ 85 teleph<:me, video, teleconferet1ce or other fadlities whereby they may communicate and participate effectlvely ill the business of the meeting, iJs if actually present together at the same time and place. 24. CONF!JCTS OF It:JTEREST in accordance w·rt:h the law· governing fiduclary responsibility, members of the Executive Committee shall be obliged forthwith to declare any self-interest or conflict of interest that may arise with respect tc .matters tc be considered and/or decided by the Board. In any such event, after declaring their Interest, the affected persons shall be obllg,ed. promptly tc recuse themselves, and to take no further· part ir1 the ·c' deliberations concerning that matter. Such persons shall subsequently refrain from participating in further discussions or decisions affecting the relevant matter, unless the continued presence and participation of the persons concerned is unanimously requested and approved by all oth2r· members of the Board. The Minutes of the Meeting shall record any such declarntlon of interest, recusal, and (if .applicable) tf\e continued presence and participation of the persons concerned. THIS CONSTITUTION WAS DULY CONFIRMED AND ADOPTED BY TilE INlnAJ;, MEMBERS OF. THE ADVISORY COUNC!L AT A MEETING HELD AT ON THE DAY OF 2010 CERUFIEO,. ",\ CHAIRPERSON DATE ;:·: ;... 714 86 SCHEDULE "A" GENERAL INVESTMENT AND ADMINISTRATIVE POWERS Subject to the limltltions set fo1th in the Prescribed Fiscal Conditions (Annexure "B"), the EXecutive Committee shaH have the following General !nvestment and Administrative Powers, In addition to those special powers ond discretions as are set forth in the Constill.Jtion to which this Schedule is annexed, viz: 1. To invest and reinvest the funds of CASAC in a manner permitted by law, as. they may deem appropriate, in their sole and absolute discretion; which may include, if deemed appropriate, the and investment of funds off-shore. 2. To retain, ortake. over assets and investments constit-uting the subject matter of donations made to CPSAC, and to retain them in the form in whidl they are received, or realise and re-invest the proceeds ther-eof. 3. To realise or vary any investments from time to time forming part of the funds of CASAC, and re-invest the proceeds thereof in any aUthorised investments. 4, To aUow investments forming part of the funds of CPSAC to remain uninvested, or in their original state of investment upon acquisitiof) by U.SAC. 5, Lend money to CASAC, with or wrJ1out security, anGl with or without provision for as may be deemed appropriate. · 6. To borrow on such t-erms and conditions as The Board may consider fit for arri of the purposes of Cfl.SAC; including the pay,ment of liabilities of CASAC; th-e payment of capitaHo any other permitted beneficiary; the making of any loan in furtherance of tl1e Sole Object of CASAC; the preserving or acquiring af any essets or investme11ts; the subscription of any shares with powers from time to time tD consent to any alteration or variation ln the tenns appllcable thereto; and as >ecl.llity for any moneys so bor.rowed, The Board shall be -entitled to mortg<:Jge, pledge, elt:l'1er genera.lry or specifloally, .or otherwise encumber, all Page 1 715 87 or any portion of tile funds of CPSAC, in suc:h manner and upon such terms and condltions as it may deem fit, w\th the right also to replace such borrowings or security, To guarantee {either gratuitously or for a ·cat1Siderat1on) tile performance of oontracts or obligations of any third party in order to promote the sole object. of CASAC, upon such conditions, and with or without security, as The Board in its sole and absolute discretion may deem fit; provided tliat sucn transaction is · entered into for the benefit of CfiSAC. 8. To exercise the voting power attached to anY' shares forming part of the funds ::-:.. of CASAC, as The Executive Commiltee may consider appropriate in the best interests of CPSAC; and to enter into ammgemen\s it may consider '·::,: necessary for the purpose of causing the llquidation, reconstruction, or amalgamation of any company of whose capital the shares shall fon11 portion. 9. To deal with, ;md tum to account, any of the assets forming part of the funds of C!"SAC, by way of exchange, sale, lease or otheMise and in exercising any powers of sale, The Executive Committee shall be entitled to cause such sale to be effected by public auction, tender, or prlvate treaty as it may consider appropriate. 1D. To purchase or acquire both movable and immovable property for use by CASAC itself in the conduct of its affairs 1 and in furthef'ilnce of tile Specified Actl\ 11.. In respect of any immwable property donated to, or forming j:nr.E of the funds of CPSAC, at any time: 11.1 to develop1 maintain, exchange, sell, lease or otheMise deal yvith any such immoWible property or any portion thereof, and to grant rightS or opti.ons in respect thereof; to register mortgage bonds; and to procure ·the maintenance, repair, improvement, demolition or reconstruction of any ·bulldjngs s\i'uated thereon; 1:L2 to execute any act or deed relating to alienation, partition, exchange, transfer, mortgage, hypothecatJon, or otherwise, in any Deeds Registry, 716 I . 88 Mining "litJes or other public office; to deal wtth servitudes, usufructs, limited· intecests or otherwise; and to make any applications, grant any consents and agree to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally r-elat1ng to any deed, bond or document and to obtain copies of deeds, bonds or documents for any purposes and genecally to do or cause to be done any act whatsoever in any such Registry or office. 12. To transfer shares or other assets into the name of any nominee(s for CPSAC, or lnto the namejs of any one or more of The Board. 13. r o muse any Company to be incorporated, or any rrust, ·Foundation, or Council not for Gain, to be established1 which is owned or controlled, directly or indirectly by CP$AC; for the purpose of holding specific assets or undert:!klng specified actiVities which serve to promote the Sole Object of this COUNOL, in the Republic or elsewhere, in accordance with the provisions of this ConstltuOon. 14.' To sue fur, recowr and receive all debts or sums of money, goods, effects and other things whatsoever, which may become due, owing, payable or vested in CPSAC, and bring sequestration, liquidation or judicial management proceedings against any persort. 15. To defend; oppose1 adjust, settle, campmmise or submit to arbittoatlon 16. To attend meetings of creditors of any person indebted to CASAC whether in insolvency, liquidation, judicial management or otherwise, and vote for the election of a Trustee, liquidlltor or judicial manager; and also vote on all questions submitted to any such meeting of creditors and generally exercise all righl5 of a creditor.. l.7. To exerdse the:·voting powero attaching to any shore1 stock, debenture or unit, in such manner as The Execuijve Committee may deem fit, fur. the purpose of· amalgamation, merger or compromise, In any Company-or Trust \n which any 717 89 such share, stock, debenture or unit is held. 18. To exercise and take up or sell' and reallse any rights rff conversion or subscriptiall attathing, aocruing or appermining to any share, debent.Jre or unit forming part of the assets of OSAC. 19. To engage employees in a part-time or full-time capacity; determine .their remuneration; and terms of employment, and delegate to them such duties as The Board may determine; and to dismiss them. ZO. To giVe receipts, releases or other effectual discharges for any sums of money or things recovered. 2.i. To treat as income any periodic receipts altl:\ough receiVed from wasting assets; and to provision for the amortisation thereof, if deemed necessary ond appropriate, 2.2., "Yo determine In such manner as The Executive Comm'lttee may consider frt: what shall be treated as income and what shall be treated as capital, in respect of any liquidation dividend, or return of capital, or capltalisauon of profits, in the case of companies whose sheres are being held as portion of the assets of the TRUST; ond generaKy to decide any questiol"l which may arise as to what constiwtes ce.pital and what constitutes income, by effecting an apportionment in such manner as the Exewtive Committee may consider ftt. 23. To employ accountants1 ;:;ttomeys, agents, brokers, or other professional' advisers to transact any business ,of whatever nature required to be done pl:lrsuant to this Constiwtion, and" to pay all sucl1 charges and so lncUiied as a first charga, and not to be responsible for the default of any such appo1Atees, or for any loss occasioned by their employment. 2.4, Tee exercise an such management and executive powers as are 1'1ormal!y vested in the Board of Directors of a Company with regard t.o the effairs of Cf!.SAC. 2.5. · To exercise any of such powers and authorities not only in the Republtc, but also In any other part of the world. I i' I, 718 90 2.6. Generally, to deal with assets or investments forming· parf of the funds of CASAC, in such mar1ner as The Executive Committee may deem advisable; and to tl1is end it shall be vesr.ed with any such additional powers -and autllorlties as it may require to enable it to do so. ) 719 91 SCHEDULE "B" PRESCRIBED FISCAL CON:DffiONS [ln terms of sections 18A ancl 30 of the Income lax Act} Upon the approval being granted by the Commissioner of CASAC as a Public Benefit Organisation in tenns of the Income Tax Act, CfJSAC (hereinafter referred to as ''the Organisation") shall become bound to conform to the relevant prescribed in terms of fiscq\ legislation, including amendments thereto as may be enacted or prescribed from lime to time. Such Prescribed Rs<;al Condltiws, as are appl1cable os at the date of adoption of this amended Constitution, are as follows : 1. As a l'ublic Benefit organisation approved by the Commissioner for purposes of section :t8(A)(1) of the Xncome Tax Act, the Executive committee shall, insofar as this may be applicable: 1.1 Ensure that any eligible donations actually paid or transferred to the Organisation, are applied solely to undertake, or to other Eligible Benendaries to undertake Public Benefit Activities as listed from time to time in Part II of the Nlnth Schedulei including the provision of funds or assets to assist other Eligible Benefldary organisations, it1stitutlons, boards or bodies to conduct such Activities, lndudlng such as may be determined by the Minister from time to time for purposes of section 18A of the Act. The term "Eligible Beneflciarie5" sho\! include the Government itself, and any provindal administration or local authority contemplated in section 10(1)(a) or '(b) of the Income Tax Act. 1.2 Ensure I'Dat during each year of assessr-nent preceding the year of assessmeRt of the Organisation during which a qualifying donation is received, it distributes or incurs the obligation to distribute at.least Seventy·Rve Percent (75%) of the funds so received by or accrued to it by way of donations which qualify for i'l deduction in terms .of section 18A of ·the !ncome Tax Act:, urtless the Commissioner upon good cause shown agrees to waive, defer or reduce such obligation to distribute; as contemplated· by the proviso to section 18A(1 ).(b )(ii) of the Act, and in that event, subject to any such conditions. as the Commissioner may determine. 1.3' Comply .wltllr.and r,ave regard to, any such additional requirements as may be prescril>ed by the Minister from time to time in tenns of section 18A(1)1 or as Page i 720 may be otherwise imposed by the Commissioner in terms of the Act, including any additional requirements prescribed by the Minister as binding upon Beneficiaries carrying on any specified activity before donations shall be allowed as a deduction for purposes of section 18A. 1.4 Ensure that an audit certlflcate is provided upon submission by the Organisation to the Commissioner of its annual retum for each year of assessment, confirming that all donations received or accrued by the Organisation in that year, in respect of whlch section 18A receipts. were issued by the Organisatiorlr were utilised ln tile manner contemplated by that section. :z. As a Public Benefit organisation. approved by the Commissioner for purposes of sect:lon 30 of the Income Tax Act, the Executive Committee shall; insofar as this may be applicable: 2.1 Carry on the public benefit activities of the Organisation in a no11·profrt: and with an altruistic or philanthropic intent. 2.2 Ensure that no such activtty is intended to directly or indirectly promote the economic self-interest of any fiducial)'1 or employee, of the organisation, oihervvise than by way of reasonable remuneration payable to thBt fiduciary or employee. 2.3 Procure that at least Percent (85%) of such activities, measured as either the cost related m tl'\e activities or the time expended ln respect thereof, are cartied out for the benefit of persons In the Republlc, unless the Minister of Finance, having regard to the circumstances of the case, directs otl"ierwise; provided that the cost incurrei:I for the benefit of persons outside the shall be disregarded to the extent of donations received by the Organisation from persons w.l:to are not resident in the Republic1 and receipts and accruals derived directly or indirectly therefrom, which donations, receipts, and accruals ha¥e not previously been taken into account for purposes of this proviso. 2..4 Take reasonable steps to ensure thot each such activity as is carried on by it is for the benefit of, or is widely accessible to, the at larg,e, jnc\uding any sector thereof·( other than small and exalusive groups); 721 93 2.5 Comply with such conditions1 if any, as me-Minister may prescribe by way of regulation to ensure mat tile activities and resources of the organisation are directed in the furtherance of its objects. 2.6 Submit to tfle Commissioner a copy of the Constitution1 Will or other writtell Instrument under which it has been established. 2.7 Be required in terms of such Constit\.ltion1 to at least three persons, who are not connected persons in relation to each other1 to accept the fiduciary responsibility of the organisation 1 and that no single person directly or lndlrectty c.ontrols the decision making powers of the organisation. ( / 2.8 Be prohibited from distributing any of its funds to any per>on (otherwise than in t.he course of undertaking any public benefit activity) and be required to utilise itS funds solely for the objects for which it lias been established. 2.8 Be required on dissolution to transfer its assets to : 2.8.1 any public benefit organisation which has been approved in terms of section 30(3) of the Income Tax Act.; ' ' \ ,. 2.82. any institution, board or body which is exempt from tax under the provisions of section 10(1)(cA)(i) 0f that Act, which nos as its soie or principal object the carry1ng on or any public benefrt: act.lvity; or 2.83 any <;lepartment of or administratiot'l If! the, or provincial or local of government 0f the Republk:1 contemplated in section iO(l)(a) or Eb) of that Act. 2.9 Be prohibited from accepting any donation which is revocable at the instance of the for reasons other than i'l material failure to conform to the designated purposes and conditions of such donation, including any misrepresentation with regard to the tax deductibility thereof in terms of section 18A; provided that a donor (other than a donor which is an approved pubflc benefit organisation or an institution, or body whkh Is exempt from tax in. terms o.f section 10(1 )(cA)(1) 1 whic;h has as its so i.e or principal 0bjec.t the. carryitl§· on of any public b'eneflt activity) may not impose conditions which could enable such ecmor or any connected person In relar:ioll ... ·.\ . .. · .. :' ···f::· .. 722 l i ' 94 to such donor to derive some direct or indirect benefit from the appllcat1on of sUch donation. 2..10 Be required to submtt to the Commissioner a copy of any amendment to the Constitution, Will or other written instrument under which it was established. 2.11 Ensure that it is not knowingly a party to1 and does not knowingly penmit itself to be used as part of any transaction, operation or scheme of which the sole or main purpose is or was the reduction, postponement or avoidance of liability for any tax, duty or levy, which, but for such transaction 1 operation or scheme, would have been or would have become payable by any per.:son under the Act or any other Act adroinlstered by the Commissioner. 2.12 Not pay any remunE>.ration, as defined in the Fourth Schedule to the Income Tax Act, to any employee, office bearer, member or other person whlch is excessive1 having regard to what is gener 2.13 Comply wtth such reporting requirements as may be determined by the Commissioner; 2..:l4 Take reasonabl.e steps to ensure that the funds whlch it may pr.ovide to any association of persons as contemplated in paregraph (b )(ili) of the definition of" "Publlc Benefit Activities" in .section 30 of the Act, are utilised for the purpose for which they are provicjed. 2.. 15 Sh 2..16 Ensure that any Books of account1 records or other documents rel'ating to its affairs are : 2.16.1 where kept \n book form, retained and carefully preserved by any person in control of the c,rganisation, for a period of a.t least four years after the date of the ·last entry in any such book;. or ?...16.2 where not kept in book form, are ret?rined and c"refully pr"l'Served 'o'f r ...... · ·, , 1 ' . ·.':· ) 723 )' o".!l . '?-; 1 \ ! I 95 any person ln control of the organisation, for a period of four years after tbe completion of the transaction, act or operation to which they relate. ;''. !' \ .... ,,., ..... ··· l'·";::····''"W·:W·i·<(';:.: .. .:•!' ...., .... 724i • I 96 INITIAL MEMBERS OF THE ADVXSORY COUI'jg!,_ Zachle Acb.tmt l?tof Cathi Albortyr> Mr Otipa Boclibe Adv GeoffBudleuiit! SC hof Richard CalJ.a,od l?mfHogh Cotder Ad; Sus=ah Coweu ho£J?ierte iie Vos u, Jackie Dugatd Mr Ebtili.tn Faldt Mr Gle= Foried M:s Judith F ebru.:ty Ms Nicole F:cit:z ' Ms Xsobel Fcye '\ l Ptof Adt=. Habib j MJ: Sello Hat>.og ' Pt F=e Gin'W\1la Mr :Mcibuko Jan Ptof Sondta Ueb""'b'"'g Mi Tshepo Ms Basets.,_a Molebatsi 1ft Lowso" Naidoo Adv T=b•h Ngoubitobi Dt N.omfwodo Ngw<:!lya P tofV elik N otslmlwat!:a Prof EilgaJ: PietiDe Adv Vtlsi l?ikoli Mr Sipho Pityana Ad:o: J?acl SC MJ: Siyaborlgll. Sechaba Bishop J 97 INITIAL MEMBERS OF THE EXECUTIVE COMMlTIEE l?tof Catbi Albertyn Ad-. SC hofRicb.oo:d Ci!hnd Ml: lAwson N:oidoo Ad"<' Tembeb. NgC\lkaito'oi Mt Sipho l?ityma (Cbob:person) ;:;.. '•. :·, 726 'I I i l \' 1!\lii qf" i'\'a;d,) ?!< >;'pji,'loot16ii ,\lh *Jttl JlJ. l%1 "·-'· '""'"- '*• . --"' ,..,,. . "··'·I .. ""' :b: ;• "fas:! 'tf \..ll 'i (i@d!l;t !)l!J1;&),, "· {I0$<)1.\llUo:il; '• ;) llblt"' ·tt<$ i'!f&Ji\',lifilw-t t4' ·1*"' l\t"'l r;;:;;,,.·.,. •c;k"""'''" '"'" '"',;¥"kl"-'''''"·»'W .. ·-· <>-i f:.!>Ji';NJ¥ &:;. !;"ii)Jll• ·"-1! 1>\! ;:-. 'i 727 S.rieftn9 to the media by Minister Ma:s.utha 0\1. the mattet of ft,e.dm sto:tamerit;:; Crim.tna.l· Court and Al E- :ZJ.. -october- 4C11S We. have press to arm.cunc:oa de(:;tsion taken by CabiMi: on 'l< D=etpt..oi:y Cy:i\ Wecl\'iesday r 'i9 October 20:!.6 !n' r-e\'l:.t\(}\i to the countr(.s: m¢mbershlp to the Rome of the lntematicna:! Court :!tnd t.he. p.f!r,ding :;?ppeal regarding Sudsnese- ?resident A! Bashk. · " M\ni.:;.:t-:s-r Mca\N! .. Th-e J=te])ub\l.:: of Scuth Africa fot.tode\: member of the 1Jnion anLl pl !n e:.:e«::islr'l.g its relation:;; with foreig'fl cowntties, With countr'le.s 'in :• e:;:.put;r whlch serious occur or hlwe occurred, Afric-a is by th-e t..andc;rs of the Rome St. Me of the lntematico•l Criminal Coutt Act, Z (Ao:t NO Z7 I of Th1s Act and tf'l,@. Sta'o.Jte or cnmlnal Court compel Zouth Afr;l-::;a to arrest who <;liptomdt\c immutllt:y under · ir:ter11:ationa\ iaw but; who 'r.Jy the Crl"ttlil"n.!!l Co1..!:'t for senot.rdet :.. \ CJgainst tv.. aflel WCir crlmes <=.11-d :;;ouch. to .t,t1e CMtnll"'':o:!) court. sou\:ll Africa Ms to do .so, under- clt"cumstanoas where ! we are in promoting peace, tt'2lbility <:Jnd dialogue in thQSIO!; cot.mtrles. ;. We v.;ish to effect tc the:. N\e of customary \-alw W\1lch r-ecognises the :- diplomatk o1 be:ads sln.te :t.r.-d othe:rs In crc\e-r to promQte di.Cl!etgt.!-e the rt;:Sotutlon of confll-± wherever- th@Y mr;.y oc.CtJr t orr Af1'"'ic:an con.tinerrt'.. Sel.ltn Afiir;-a 'th-e. Act, (Act f(;,r!'n@l"' \.: No. 37 of 2.0D1) 1 wMk::h for the lmmun.ities and of mlss\{)hS J"' AC:C1 111 \'t:l SOi,ith dbility to a! . r- 0?' 1,/2. \\ 728 AMV! in world is further by our continued p:.Htidpat!on in various i::ii'Jd continental humM rights inst!'iJments. For this South Africa wn\ work do.se-ly wlth the African Union and w\ti-J ot.h01 countries in '00 100 stre)lgthen bodles, such the African Court Ol"i Human i;tnd People's Rights1 to de!:! I with such crimes and to prosuute whllst at 5ame time CDntlnuitJg to particlpat: and hCMU\ fts tOmtnitrnents t.H'lder hUI'lian rights lnstr't.lments. South Atr.lca Wfl! .c0nlin\J,i:! to promote dialogue and the pe:i:iceful resolution of on the contlnet'lt Ql'1d elsewhere. l:ssf;!et:f by the ¢f Cons'titutX0)4:;tl Mthun ; us. l 1 .zi 20.!& h4r Ttl1S :;::l.r:g ,aQO X t"'.f'i>:.h 5,01 4,5 cr hl"S(:r$r1 t> "¥:"103 Of ?al1?:"•ln of ,s,{Jttt I i .. •I 1·1 h . ,,.•.c:; ·· r ·'%''·"'::·•:·:·•.o•.W:t;;o:':-\•J1:':::·::1 •r······:;·:··, 729l), 'lCJJ22J?.QiS Crltnirtal Ccvrt (21 Oc;:tober l ' Q"''""""'' - (( pltltB 1\ l ' Ill' ' &ARtlAMJSN'f \\ 1. : ' ;: PARLIAMENT RECEIVES NOTICE Of: WITHDRAWAL FROM THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT FJ:id.cryf 2l. 2016- of the NatiLH"\'31 Assembly, M.s tdlek !his will b.;: handled ln witll du-e proees.s \:hrovsh s:t:i\!cturM' il'l the l;SStJI;o J!N' "'!'HE: 0,!= RS.I\ 'l'ARUAMSNT P>'ARi':!;C)':?A"l'f! Pl!61:.lCAT.I:ON$' 0? PARUAME;NT t./1! Who we l:!lre What's cl'l l.euO.;:r of f'ol"\lm.S Repnes 61JSiMS"S HoW Is structured Nt!-w!> Mlnh;te.rs ' ln:session p\l::;otos F'rojett<; Mlnlst;s:;rs Vl'5:!t · P:::tr!iam.a.niA\ry Ch! http:/twww,!l,toeslive.co.wsun&ytimeslstoews/2016110/lliH ... 1 ( TIMIOSLNE • ".\l\.-c::' ...... . Nl'iWS OPlllJOll &ANAl..YS\S SPORi · ElfJSlNESS LIFESTYLE TRAVEL DECOR \ ,; FASHION & SEA\J'IY fOOD '"" ...... -...... ,.._...... ,.,_,..._..-..,.,..,.., ...... --- ' & Tb.• five tough taeks (lJ King Z'welil'Un!Sote tl\at axe freeo!oNll ""d. $UNPAYTIMES NEWS BYTMG OIGITALZ016-'IG-12 HlJman rights commission concerned with SA:s \1\lithdrawal from ICC A general view of the Nation;;! Assembly !n p$r\l-ament in C.Spe Town. Ale photo. Image; MIC BOTHMA EPA he South Africa:u Hmnan llights Commission says lt note<\ that it• lCC is me onlyperman.eN mt=•tJ.onil atmi.rwl coun and is a crocW . c:dlninaljllst!ce, j)art\c>Uarly'il.dtl\ M$J>•ct to lmpu!J\ty torperpet>:>tors oOntomo:t\ooal · "SoumAfdoa SW>•d ;nd ,..llfieo. th• Rome Statute he LS9S ;M tl:tereey jotned mfu other statO patti.M in •1fumlng fts OOJ:M\Itm"l>t to tne >:Ulo otlaw tD i:mpUJ:'dl:y (or Cl:tcrtes, 1 of3