Court called to decide who has power to sign‚ withdraw from treaties

The court on Monday heard an application by the Democratic Alliance and a number of organisations‚ which want the court to declare that the government's decision to withdraw from the Rome Statute of the International Criminal Court was unlawful and invalid.

• Parliament‚ not Cabinet Minister can decide on SA withdrawal from ICC: BudlenderThe decision by government to withdraw South Africa from the International Criminal Court was unlawful and invalid‚ a lawyer for the Democratic Alliance said on Monday. 

They also want the court to order President Jacob Zuma and the ministers of justice and international relations to revoke the notice of withdrawal from the ICC sent to the United Nations in October.

Justice Minister Michael Masutha said in October that the country had decided to withdraw from the Rome Statute. He said the ICC was making it harder for South Africa to pursue peace and security in Africa because it strips leaders of their diplomatic immunity.

• Casac joins call opposing withdrawal from ICCThe Council for the Advancement of the South African Constitution (Casac) joined the call made by the Democratic Alliance that the decision by government to withdraw from the Rome Statute of the International Criminal Court be set aside. 

The withdrawal follows the controversial visit of Sudanese President Omar Al-Bashir last year. He visited the country to attend the African Union Summit‚ despite there being a warrant for his arrest issued by the ICC‚ which is seeking to try him for alleged war crimes.

A number of organisations agreed with the DA's submissions‚ whose main thrust was that the power to enter and withdraw from international treaties was vested in the National Assembly and the National Council of Provinces.

These include the Council for the Advancement of the Constitution of South Africa (Casac)‚ the Helen Suzman Foundation‚ the Southern Africa Litigation Centre and the Centre for Human Rights.

Steven Budlender‚ counsel for the DA‚ described the decision by the executive to withdraw as an usurpation of Parliament's exclusive powers.

"It is Parliament that must decide if South Africa must be bound by a treaty. There can really be no doubt that if the executive decides to ratify a treaty‚ without obtaining approval from Parliament‚ that would be unlawful‚" Budlender told the full bench of the high court in Pretoria headed by Deputy Judge President Phineas Mojapelo.

Counsel for Casac Anton Katz SC said the appropriate way for the executive to deal with the matter was to table the repeal of the Implementation of the Rome Statute of the ICC Act‚ the local law which enjoins South Africa to arrest people wanted by the ICC and to surrender such persons to the ICC.

“The executive has no power to act at all until Parliament has made a resolution‚” Katz said.

Counsel for the president and the ministers of justice and international relations Jeremy Gauntlett SC will begin his arguments opposing the applications on Tuesday morning.

Government's position is that treaty-making is in the heartland of the executive.