Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016)  ZAGPPHC 53 (22 February 2017)
In the recent decision of Democratic Alliance v Minister of International Relations and Cooperation and Others, the High Court of South Africa (the High Court) found that the decision by the national executive to sign and deliver a notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and invalid.
On 19 October 2016, the national executive took a decision to withdraw from the Rome Statute. The Minister of International Relations subsequently signed a notice of withdrawal giving effect to the decision. This triggered article 127(1) of the Rome Statute which provides that the withdrawal of a party state takes effect 12 months after the depositing of a notice to that effect. As a result, South Africa would cease to be a state party in October 2017.
The applicant launched substantively identical applications in both the High Court and the Constitutional Court to challenge the executive's decision. On 11 November 2011, the Constitutional Court refused the application to hear the matter, and the applicant fell back on the High Court proceedings.
The High Court held that the notice of withdrawal from the Rome Statute signed by the Minister of International Relations and Cooperation and delivered to the United Nations Secretary-General, without prior parliamentary approval, was unconstitutional and invalid. Given this, it was ordered that the notice of withdrawal be revoked and the first, second and third respondents pay the applicant's costs.
Interpretation of s 231 of the Constitution of the Republic of South Africa
The High Court considered whether the national executive was entitled to decide on the withdrawal and execute its decision without legislative involvement or approval. It also considered whether the decision to withdraw could be executed without the prior repeal of the Implementation Act.
In making its decision, the High Court considered the correct interpretation of s 231 of the Constitution of the Republic of South Africa (the Constitution).
It was argued by the defendant that because s 231 does not contain an express provision relating to the requirement for parliamentary approval, that no such requirement exists.
The High Court considered the process for the adoption of an international treaty into national law, which requires approval by parliament to be binding on the country. It disagreed with this argument for a number of reasons. Most notably, the High Court emphasised that the process of withdrawal should follow the same route as that for the adoption of an international treaty.
The High Court held that a proper textual construction of s 231 means that a notice of withdrawal is the equivalent of ratification, as it has direct legal consequences and that to allow the executive to terminate rights and obligations under the Rome Statute without parliamentary approval was self-evident and manifest.
The High Court also had difficulty accepting that if parliamentary approval is required before an instrument is ratified, that the same requirement would not be required for the reverse process.
The High Court also offered a different perspective, in obiter, that in the absence of a provision in the Constitution outlining a power for the executive to terminate international agreements, it has to be inferred that such a power does not exist unless and until parliament legislates for it. The High Court also suggested that the existence of such a power would confer legislative power on the executive, constituting a breach of the separation of powers doctrine.
In conclusion, the High Court held that South Africa could only withdraw from the Rome Statute with the prior approval of parliament and the repeal of the Implementation Act. To do otherwise constitutes a breach of s 231(2) of the Constitution and the separation of powers doctrine enshrined within.
Ancillary to the main issue, the High Court also considered whether retrospective approval would cure any defects in the process of withdrawal adopted by the national executive. It found that, as the executive purported to exercise a power that it did not constitutionally have, its conduct was invalid and had no effect at law, and the invalidity cannot be cured by parliament.
Further, the applicant presented a number of additional arguments to the main issue considered by the High Court. One such argument was that public participation had been circumvented by the executive's delivery of the notice without parliamentary approval. The High Court found it unnecessary to consider this on the basis that that it was premised on a finding that the notice had been validly delivered.
Another argument advanced was that the national executive actions were in breach of the requirement for government action to be rationally connected with a legitimate government purpose. The High Court briefly considered this issue and found that the unexplained haste of the national executive did constitute procedural irrationality.
Notably, the High Court declined to consider the substantive merits of South Africa's withdrawal from the Rome Statute.
This decision required South Africa’s notice of withdrawal from the Rome Statute be revoked and confirmed that parliamentary approval would be required for South Africa to withdraw from the jurisdiction of the ICC. It also highlights a broader trend of attempts to make significant international decisions under executive powers which have been struck down by the courts, such as the US Court of Appeal’s suspension of Presidential Donald Trump’s controversial immigration ban and the UK High Court blocking Prime Minister Theresa May’s intention to notify its intention to withdraw under prerogative powers.
Following this decision, the South African Government officially revoked its decision to withdraw from the International Criminal Court in a statement to the United Nations.
The full text of the decision is available here.
Ray Mainsbridge is a Senior Consultant and Courtney Chu is a Graduate at Ashurst.