The government on Friday will apply for leave to appeal the judgment by the Supreme Court of Appeal (SCA) on Sudanese President Omar Al-Bashir.
“The government believes that the interpretation of legislation relating to immunity granted to a foreign sitting head of State needs pronouncement by the Constitutional Court as the apex court in the land and final arbiter on constitutional matters,” Mthunzi Mhaga, spokesperson for the Ministry of Justice and Correctional Services, said in a statement.
He said that the government believed that legal uncertainties which had not been resolved by the SCA, both in terms of customary international law and domestic law, could only be properly pronounced on by the Constitutional Court.
“The Government therefore believes that there is a reasonable possibility that the Court will arrive at a different conclusion,” Mhaga said.
In March, the Supreme Court of Appeal dismissed the State’s appeal against a high court ruling that government’s failure to arrest the Sudanese president was inconsistent with its constitutional duties.
When Bashir entered South Africa in June 2015 for an African Union summit, the SA Litigation Centre approached the high court for an order that government enforce an International Criminal Court (ICC) arrest warrant on him.
The High Court in Pretoria ordered the government to arrest Bashir, and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.