The DA’s court case on South Africa’s duty to arrest Russian President Vladimir Putin did not go ahead in the Pretoria high court on Friday.
This after it emerged that the director-general of the justice department had already forwarded to the national director of public prosecutions (NDPP) the International Criminal Court's (ICC) request to apply for an arrest warrant for Putin.
This was recorded in an order of court, which was made by agreement between all parties.
The order also recorded that a process of “consultations” between South Africa and the ICC under article 97 of the Rome Statute — in which South Africa had raised problems “which may impede or prevent the execution” of the ICC’s request for co-operation — had been concluded.
The ICC confirmed “all state parties, including the Republic of South Africa, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and request for co-operation”, said the court order.
“In light of [these] facts, the matter no longer needs to proceed,” the order read.
By the time the court was due to hear the matter, the Presidency had already announced that Putin would not be attending the Brics summit in August. President Cyril Ramaphosa said in court papers that the DA’s court case was now moot or only of academic interest.
However, on Thursday the party said it was still pressing ahead with the case. In earlier papers, the DA's attorney, Elzanne Jonker, said Ramaphosa had never unequivocally stated South Africa had a duty to arrest Putin.
The government was also in violation of its duties under the Rome Statute, she said. The statute required that even before Putin set foot in South Africa, the director-general (DG) of justice must immediately forward a request to apply for a warrant to the NDPP.
With the new facts provided in the court order, all the DA’s concerns seem to have been allayed. The justice DG will also pay the costs of the court case, according to the order.
According to Ramaphosa’s court papers, some of the “problems” raised under the article 97 consultations “may include situations where implementing the request for arrest and surrender of a person threatens the national security, peace and order of a state”.
Referring to media reports, Ramaphosa said Russia made clear that arresting Putin would be tantamount to declaring war on Russia.
“It would be a reckless, unconstitutional and unlawful exercise of the powers conferred upon the government to declare war with Russia by arresting Putin. My government and I have constitutional obligations to protect the national sovereignty, peace and security of the republic and its people,” he said.
He added that the South African government was engaged in efforts to facilitate a peaceful resolution to the Russia-Ukraine war: “The republic obviously faces problems with implementing an arrest and surrender of a sitting head of state of one of the parties to the war, while preaching a peaceful solution and seeking to broker peace.”
But Jonker said Ramaphosa’s reliance on Russia’s threat of war was “startling”.
“Tellingly, the president relies on hearsay news reports, not even directed at South Africa, rather than any direct engagements with the Russian government,” she said.
Essentially Ramaphosa was asking the court to excuse the government from its international and domestic law obligations because a foreign state was threatening war, Jonker added.
“Were such a threat to be given credence, it would be the end of the rule of law ... it would also be the end of South Africa’s sovereignty.
“Law would not rule. Brute force might would rule. It is a tragedy that the president of a democratic South Africa, built on the rule of law, would make such submissions to a court,” Jonker said.
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