Al-Bashir appeal 'should be dismissed'

The government has defended its decision not to detain al-Bashir, arguing that as a head of state, the President is immune from arrest in South Africa.

Al-Bashir is wanted by the International Criminal Court over alleged war crimes against humanity. 

Advocate Wim Trengove says the court should reject the application.

"We do persist in the opposition to the application for leave to appeal on the basis the appeal doesn't have usual prospects of success. The appeal fails on a proper interpretation of section 10(9) of the ICC Act. 

"Now whether you refuse leave or grant leave and refuse the appeal is much of a muchness but we do submit there's a plausible and reasonable basis upon which we persisted in our application for leave to appeal," he said. 

Earlier, Advocate Jeremy Gauntlett has argued that the Immunity Act trumps the Implementation Act of the International Criminal Court. 

Also read: Al-Bashir protected by presidential immunity, SCA hears

Gauntlett is representing the State in its bid to overturn a North Gauteng High Court ruling that South Africa effect an ICC-issued arrest warrant for Sudanese President Omar al-Bashir in June last year when he was in the country for an African Union summit.

The Hague wants him to answer to charges including war crimes.

Bashir was able to leave the country moments before the Pretoria court made its ruling.

Gauntlett must first deal with arguing for the Appeals Court to grant it leave to appeal. 

"What is clear he's a serving head of state in Africa, he's the serving head of state of another member of the African Union. South Africa is engaged in the African Union. 

"As the gathering in Johannesburg pointed out from time to time it may be expected be the host for those meetings. 

"So for both those reasons, we would respectfully submit that the finding of the court was unfortunate but not quite as unfortunate as its findings on the merits where it was indicated and accepted by the council that we should not trouble ourselves in dealing with prospects of success," he said.  

Meanwhile, the ANC want South Africa to consider withdrawing its participation in the ICC.

(Photo: AFP)