It was with a sense of predictability that our government allowed Omar Bashir, the President of the Republic of Sudan, to leave South Africa.  The judgment of the court makes interesting reading, and it is very important reading dealing with our failure to arrest a head of state against whom the International Criminal Court had issued arrest warrants for war crimes, crimes against humanity and genocide.  We read firstly how the government, who had to file their papers by 09:00, only filed them at 11:30 and when the court proceeded advocate Mokhari SC, representing the government, specifically denied that President Bashir had left South Africa whereas it now turns out that while he was giving these assurances, they were not in fact true.  

One assumes the advocate must have been misled by the government when they instructed him or whoever he was talking to was either clueless or deliberately misleading him.  The court, headed by Judge Mlambo, the Judge President of the Gauteng Division of the High Court, as well as Judge Ledwaba and Judge Fabricius, at the end of their judgment, had this to say about democracy:  “A democratic State based on the rule of law cannot exist or function, if the Government ignores its constitutional obligations and fails to abide by Court orders.  A Court is the guardian of justice, the corner-stone on the democratic system based on the rule of law.  If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.”  They went on to say that when the rule of law is undermined by the government, it is often done gradually and surreptitiously and that where this happens in court proceedings, a court must fearlessly address this through its judgments.  

This is about as strong as a judicial statement that we’ve had about the way the current government is undermining democracy in South Africa and one hopes that we do not have a situation where, like Zimbabwe, Judges who criticise the government are next taken to task and replaced.  We must salute the Judge President Mlambo, the Deputy Judge President Ledwaba as well as Judge Frabricius for taking a fearless stand and telling the government off in this embarrassing matter.