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State refused permission to appeal Al-Bashir ruling

The full bench of the Pretoria high court on Wednesday dismissed the state’s application for leave to appeal against the judgment passed in June that its decision not to detain Sudan President Omar Al-Bashir was inconsistent with the Constitution.

Al-Bashir came to the country for the African Union Summit in June‚ despite there being a warrant for his arrest issued by the International Criminal Court.

Despite a court order instructing the state to ensure it prevented Al-Bashir from leaving the country‚ the Sudanese president left South Africa after the summit.

In its application last month asking for leave to appeal to the Supreme Court of Appeal‚ the state said the question of whether South Africa was under a legal duty to arrest a sitting president of a sovereign state or to respect his immunity as head of state had never before been considered by any other South African court.

The state said there were a number of respects in which the judgment was liable to a different conclusion by another court.

The application was opposed by the Southern Africa Litigation Centre.

The state also argued that the appeal would have a practical effect because the matter dealt with immunity of sitting heads of state.

In the judgment by the full bench read by Judge Hans Fabricius on Wednesday‚ the court said it could not grant the state leave to appeal as the matter was moot if there was no existing and live controversy.

Justice and Correctional Services Department spokesman Mthunzi Mhaga‚ on behalf of the executive‚ expressed disappointment at the judgment as it wanted the issues of international law to be ventilated by another court.

He said the state would reflect on the judgment and would explore whether it should explore the option of petitioning the Supreme Court of Appeal directly.