Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
18 April 2008

Can a court stop the arms shipment to Zimbabwe?

The Witness newspaper is reporting that Lawyers in Durban were last night preparing to launch an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe. The newspaper says the application will be brought in terms of South Africa’s Constitution and international law.

The controversial cargo packed into 3 080 cases reportedly includes three million rounds of 7,62mm bullets (used with the AK-47 assault rifle) and 69 rocket-propelled grenades, as well as mortar bombs and tubes. The cargo is, according to the documentation, valued at R9,88-million.

The shipment of such arms to an illegitimate police state like Zimbabwe is of course morally reprehensible but I am wondering on what legal basis will such an application rely and whether it would have any chance of success.

Defence Secretary, January Masilele who heads the national conventional arms-control committee of South Africa, apparently approved the deal. Asked about the controversy surrounding the shipment, Masilela said: “This is a normal transaction between two sovereign states. We are doing our legal part and we don’t have to interfere.”

Unfortunately, on legal grounds, he may have a point. The UN has not (yet) imposed an arms boycott against Zimbabwe and the conflict in Zimbabwe is not an armed conflict between internal groups as defined by International Law treaties, so I am not sure how one could stop this.

The South African Constitution places a duty on the state to safeguard the security of the person for everyone within South African borders, but I do not think it places a duty on the state to act in such a way that it would protect the people who live in a neighboring country.

Perhaps the applicants will rely on South Africa’s International Law obligations in terms of various human rights treaties signed and ratified by South Africa, but I have not made a study of all these treaties and cannot recall on the top of my head which treaty might be implicated in this case. Maybe clever readers of this Blog may have an answer.

But even if this application is dead on arrival, this affair does suggest just how insensitive the South African government is regarding the situation in Zimbabwe. It may be true that we cannot and should not intervene in the domestic affairs of Zimbabwe and that we must respect that country’s sovereignty, but we clearly have a right to refuse to have the arms shipped via our ports. This would not in any way interfere with the sovereignty of Zimbabwe.

But the South African government will not take such a step because they are too scared of Mugabe. This makes them at least morally complicit in the human rights abuses in that country. As Hillary Clinton would have said: Shame on us.

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