Statement on the Cabinet Meeting of 24 June 2015

25 Jun 2015

1. Implementation of Key Government Programmes

1.1. Cabinet welcomed the resolutions adopted at the 25th African Union (AU) Summit which places Africa on a new path of development and growth that will enable the continent to take its rightful place in global affairs.

Resolutions included a united and functioning single military by the end of the year. Leaders pledged to accelerate the operationalisation of the African Standby Force (ASF).

Cabinet applauded the initiative by the AU towards greater regional integration and trade through the launch of negotiations for the establishment of a continental free trade area that will forge stronger ties between African economies. 

1.2 Cabinet also welcomed the meeting of the African Union Ministers Responsible for Gender and Women’s Affairs held their meeting on the 12th of June 2015, following the 2nd AU High Level Panel on Gender Equality and Women’s Empowerment (HLP) which was held from the 10th – 12th of June 2015 at the margins of the 25th Ordinary Session of the AU Assembly, under the Theme: “Make it Happen Through the Financial Inclusion of Women in the Agribusiness Sector”.

The outcome of the 2 meetings was a Declaration and a Call for Action on Financial Inclusion in Agribusiness. The Call for Action calls Member States to among others

·         Implement women’s right to access, control, ownership and benefit from financial resources, including access to public procurement processes in Education, information and skills development, innovative technologies and practices, to capacitate and develop women’s economic empowerment in agribusiness;

·         Intensify initiatives to create a conducive environment for women to conduct agribusiness and the agricultural value chain through prevention and responding to conflict on the Continent, addressing, adapting and mitigating climate change impacts, and addressing the impact of epidemics and natural disasters.

·         Facilitate the development of agribusiness and agricultural value chains through mechanisation, technological innovation and skills development for women;

1.3 In a few months, matric learners will be seating for their final year examinations. Cabinet calls on the Class of 2015 to apply early for admission to institutions of higher learning as part of the Apply Now/ Khetha Career Guidance Campaign that is undertaken annually by the Department of Higher Education and Training.

We urge learners to also consider Mathematics and Science as fields that will take our economic growth to higher levels. Creativity and Innovation are key economic drivers in a country. Young people must also explore opportunities that are available at Technical and Vocational Education Training colleges situated across the country in addition to universities, which include the newly established Sol T Plaatje University in the Northern Cape and the University of Mpumalanga.

2. Key Cabinet decisions

2.1 Cabinet ratified the decision to designate the Maluti-A-Phofung Industrial Development Zone (MAP IDZ) at Tshiame (Industriqwa-1A), Harrismith, Free State Province. It also approved the granting of Operator Permit for this zone to the Free State Development Corporatio

The MAP IDZ designation will establish a logistics-orientated platform (Logistics Hub) 10 kilometers outside of Harrismith (the old Industriqwa site), primarily to service the automotive, light manufacturing, agro-processing and distribution/ logistics sectors.

2.2 Cabinet approved that South Africa joins the Asian Infrastructure Investment Bank. The Bank focuses on Asian and Oceanic Region in supporting the infrastructure investments. 

South Africa’s participation will strengthen its growing business relationships with the region and will also demonstrate solidarity with the region’s development aspirations.

2.3 Cabinet approved the designation of the Ministers of Justice and Correctional Services and Police as responsible for the fulfillment of the State’s responsibilities in terms of section 9(2) of the Prevention and Combating of Torture of Persons Act, 2013.

Both Ministers will be responsible for the development of programmes aimed at preventing and combating of torture which promotes the fundamental right to freedom and security of the person as provided for in section 12 of the Constitution.

2.4 Cabinet approved submission of the Additional Protocol to the Trade, Development and Cooperation Agreement between the European Community and its Members States to Parliament for ratification.

The Additional Protocol takes into account the accession of the Republic of Croatia to the European Union (EU) which join later into the Protocol. 

The enlargement of the EU will improve SA’s market access into the EU, which will lead to creation of job opportunities, fostering economic growth, and improve consumer choices. This is in line with the National Development Plan vision of creating employment, growing the economy and promotion of exports.

2.5 Cabinet approved that the relevant international standards and other scientific measures be implemented with a view to ensuring adequate risk management is applied when importing cattle and bovine products.

This alignment of South Africa’s import requirements with international scientific guidelines, will strengthen the county’s position in international trade. This will broaden access to sufficient, safe and nutritious food for people and animals through strategic sourcing and will increase job creation through importation of beef products intended for further processing in South Africa.

3. Bills

3.1. Cabinet approved the introduction of the Criminal Matters Amendment Bill, 2015 into Parliament.

The amendments provide for changes to the laws pertaining to infrastructure-related offences such cable theft, telephone lines. Stricter provisions are provided for the granting of bail, sentencing of offenders and creating a new offence to criminalise damage to essential infrastructure caused by tampering or interfering with the functioning of basic services through criminal activity.

The bill once passed will ensures that mechanisms are put in place to safeguard infrastructure, in which much needed public investment is placed, to ensure that the country meets its economic growth targets and increases employment.

3.2. Cabinet approved the introduction of the revised Promotion and Protection of Investment Bill, 2015 into Parliament.

The Bill reaffirms that South Africa remains open to foreign investment, provides adequate security and protection to all investors, and preserves the sovereign right of the South African Government to pursue developmental and transformational public policy objectives.

This is in support of the National Development Plan’s (NDP) objective of promoting investment and export growth to stimulate sustainable growth and development in South Africa.

3.3. Cabinet approved publication of the Copyright Amendment Bill, 2015 in the Government Gazette for wider consultation.

The Bill amends the Copyright Act, No 98 of 1978 and the Performers Protection Act, No 11 of 1967, which are outdated as they do not consider developments at multi-lateral level nor do they have provisions that deal with digital issues.

The Bill addresses the licensing of copyright work/ material in relation to commissioned work to prevent commercial exploitation. This will help government to address the plight of musicians and performers by ensuring that royalties are paid on time by recording companies and broadcasters as most of them are dying as paupers.

3.4. Cabinet approved the introduction of the Public Service Commission Amendment Bill, 2015 to Parliament. This amends the Public Service Commission Act 46 of 1997.

The Bill deals with the instance of a renewal of a Commissioner’s term and also provides for the chairperson to designate one of the commissioners to act as the chairperson during the absence of both the chairperson and the deputy.

4. Cabinet’s position on current issues

4.1. Cabinet welcomes the Cuban Five who were arrested in the US in 1998 and convicted of crimes ranging from espionage to murder. The five were sent to the USA as part of a network called La Red Avispa to investigate the activities of militant Cuban exile groups plotting to overthrow Fidel Castro’s regime.

4.2. Cabinet thanks the government of Malawi represented by the SA Higher Commissioner Ms Cassandra Mbuyane-Mokone for facilitating the repatriation of the two South African children (14) and a (20) who were removed from the care of their grandmother in Mpumalanga to Malawi in July 2014 by a woman who posed as a former teacher. Today, Minister of Social Development Bathabile Dlamini, will receive the children.

5. Upcoming events

5.1. Cabinet calls on all South Africans to participate in the upcoming celebration of Nelson Mandela Month in July under the theme: “Make everyday a Mandela Day: Contributing 67 minutes of our time to help those in need.” Each South African holds the potential to expand on the legacy of our late former President Nelson Mandela by making a difference in the lives of others.

In the spirit of Madiba’s legacy let us also work together as we mark Social Cohesion Month in July to develop a cohesive society by promoting the ideals of non-racialism, non-sexism, justice and equality for all as envisioned and espoused in our Constitution.

5.2. As part of celebrating and honoring outstanding contributions to science, engineering, technology and innovation, the Minister of Science and Technology Minister Naledi Pandor will host a gala dinner to announce the winners of the 2014/15 National Science and Technology Forum – BHP Billiton Awards on 9 July 2015 at Emperors Palace, Kempton Park under the theme: “Light”.

These awards were launched in 1988. In celebration of this year’s UNESCO theme of “The International Year of Light and Light-based Technologies”, a Special Award will be presented to Photonics-related research.

5.3. In the spirit of Africa Public Service Week taking place this week (from 22 to 26 June 2015), Cabinet would like to thank all public servants for their commitment, dedication and hard work in delivering service to our people. We call on all public servants to recommit themselves to meet the needs of all South Africans.

6. South Africa’s position on the ICC matter

Cabinet, decided that it would review South Africa’s participation in the Rome Statute of the International Criminal Court, for a number of reasons.

South Africa was always a staunch supporter of the establishment of the International Criminal Court and one of the first signatories of the Rome Statute of the International Criminal Court. It remains committed to a system of international justice “to ensure that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”

South Africa will continue to promote and encourage regional and international initiatives to deal with such crimes.

South Africa is a member of the Assembly of States Parties established by Article 112(1) of the Rome Statute of the International Criminal Court.

South Africa is also a member of the United Nations, the African Union and other international bodies. It takes its international responsibilities and obligations very seriously.

South Africa plays a significant role on the African continent and in various continental bodies. It also hosts the Pan African Parliament. South Africa’s former Minister of Home Affairs is the chairperson of the African Union Commission.

South Africa is involved in peace keeping missions in many African countries such as the Democratic Republic of the Congo. South Africa is also actively involved in ensuring that the fragile peace process underway in Sudan and South Sudan holds, in the interests of the people of those sovereign states and other sovereign countries and the African continent.

South Africa is regarded internationally as an honest and reliable peace broker with about 3000 South African troops involved in such peace keeping missions under the auspices of the AU and the UN.

South Africa promotes cooperation between South Africa and other countries and integrated development on the continent. South Africa uses the African Renaissance and International Co-operation Fund to, amongst other things, enhance the promotion of democracy, good governance and the prevention and resolution of conflict.

South Africa invests a great deal of its financial, military, technical and human resources towards achieving peace, security and prosperity on the African continent. The benefits of these investments are slowly being realised in the countries in which South Africa is active. These countries include Sudan and South Sudan.

Despite being a member of the Assembly of State Parties to the Rome Statute of the International Criminal Court, South Africa has to balance its obligations to the ICC with its obligations to the African Union and its obligations to individual states, including those in Africa, in terms of the international treaties which it has concluded.

South Africa notes that even Permanent Members of the Security Council which are not signatories to the Rome Statute on the International Criminal Court may participate fully in discussions on the ICC and referrals by the Security Council of a situation in a country to the ICC.

Those countries have taken steps to ensure that their officials and military personnel will not be subjected to the jurisdiction of the ICC.

South Africa also notes the contradictions in various articles in the Rome Statute of the International Criminal Court on indemnity for Heads of States.

Article 27 provides as follows:

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

At first glance, this article confers the ICC with jurisdiction over anyone, irrespective of that person’s official status.

However, Article 98 provides as follows:

Cooperation with respect to waiver of immunity and consent to surrender.

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Article 98(2) is significant and unambiguous. It clearly states that the ICC may not request the surrender of a person by the requested State, if that would result in the requested state breaching its international obligations, unless the ICC itself can first obtain the cooperation of the sending State. In other words, the Article 98(2) places an obligation on the ICC to assist countries to execute warrants of arrest.

It is abundantly clear that the ICC was aware that South Africa may have difficulties in executing the warrant of arrest for President Al-Bashir, because of its international obligations.

The ICC had on 28 May 2015, already, invited South Africa to hold consultations with it regarding the execution of the warrant of arrest in accordance with Article 97 which provides in clear and unequivocal terms that where a State Party receives a request in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter.

Such problems may include the fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

The ICC must have been aware that South Africa would, in the execution of the warrant, breach its existing treaty obligations with the AU. That must be the only plausible reason why the ICC had invited South Africa to consult with it.

Having extended an invitation to South Africa to consult with it, the ICC had a duty to consult in good faith with South Africa and to assist it to comply with its obligations to the ICC and the AU.

South Africa accepted the invitation by the ICC to consult with it in terms of Article 97. In fact, South Africa had a number of issues with the validity of and the execution of the warrants of arrest and South Africa’s international obligations which arise from its membership of the AU.

South Africa is obliged to give effect to a decision taken by the AU at Sirte in Libya on 3 July 2009 that its members must not cooperate with the ICC, pursuant to the provisions of Article 98 of the Rome Statute of the International Criminal Court until the Security Council has considered the request by the AU. The AU has requested the Security Council to defer its decision to refer the situation in Darfur to the ICC for investigation.

That request has not been acted upon yet. The AU had made the request in terms of Article 16 of the Rome Statute of the International Criminal Court, as the AU believes that the involvement of the ICC in the matter will pose a threat to peace and security on the African continent.

South Africa has a particular interest in the decision of the AU because of South Africa’s involvement in the peace process in Sudan and South Sudan. Both countries have given South Africa various undertakings regarding the peace process. If the peace process fails, the consequences for the people of those countries and the African continent would be calamitous.

South Africa holds discussions with both Sudan and South Sudan regularly and has obtained assurances from both parties with regard to the peace process.

South Africa accepted the invitation by the ICC to consult with it in terms of Article 97 in good faith and hoped for a constructive, fruitful and meaningful discussion on the difficulties experienced by South Africa in executing the warrant of arrest.

An initial meeting was held with the ICC on 12 June 2015. That meeting was attended by the South African Ambassador and the legal counsel to the ambassador. At that meeting the Ambassador stressed that he was unable to deal with the technical and legal issues involved and wanted to arrange another meeting at which people who could deal with those issues would be present.

A second meeting, for that purpose, was scheduled to take place on Monday, 15 June 2015. On that date, the actual consultations in terms of Article 97 were due to take place. However, the ICC sought an earlier meeting and such a meeting was arranged for Sunday 14 June 2015 at 12h30. However, late on the night of Saturday, 13 June 2015, the Prosecutor of the ICC made an urgent application to the ICC in the following terms: “Prosecutor’s Urgent Request for an Order clarifying whether Article 97 Consultations with South Africa have concluded and that South Africa is under an Obligation to Immediately Arrest and Surrender Omar Al Bashir.”

The Prosecutor made the Urgent Request to the ICC, without giving any notice whatsoever to South Africa. The Prosecutor asked that details of the Urgent Request remain confidential, but that the decision of the ICC is made public.

The ICC heard the matter immediately and issued its Decision. In effect the ICC, without hearing South Africa, decided that the Article 97 consultations had ended and that South Africa was under an obligation to arrest and surrender President Omar Al-Bashir. That decision was made, as already mentioned, without any notice to South Africa.

South Africa as a State Party to the Rome Statute on the International Criminal Court and as a member of the Assembly of State Parties was entitled to notice of the Prosecutor’s Urgent Request to the ICC and to be heard on the matter, especially as consultations had been arranged.

South Africa’s sovereignty as a nation also suggests that it is entitled to be treated equally and with respect, irrespective of to the circumstances. 

It would appear that the ICC had not extended the invitation to South Africa to consult with it in terms of Article 97 in good faith and in a serious and sincere effort to assist South Africa. South Africa has, therefore, decided to review its participation in the Rome Statute of the International Criminal Court.

Two articles in the Rome Statute are important for considering the position South Africa should take regarding its future cooperation with the ICC.

These are articles 119 and 127.

ARTICLE 119

Settlement of disputes

1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.

2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties.

The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

Article 119 deals with two situations:

Firstly, disputes concerning the judicial functions of the ICC; and secondly, any dispute between two or more State Parties relating to the interpretation or application of the Rome Statute.

In relation to the first above, South Africa may well have a dispute with the ICC regarding the Decision which it made pursuant to the Prosecutor’s Urgent Request for an Order clarifying whether Article 97 Consultations with South Africa have concluded and that South Africa is under an Obligation to Immediately Arrest and Surrender President Omar Al Bashir.

South Africa will enter into formal negotiations with the ICC on the matter with the view to understand the ICC’s reasoning and how it interprets Article 97.

South Africa also wants to understand, from the ICC, what its obligations are in terms of Article 98(2) to a requested State which cannot in violation of an international obligation execute a warrant of arrest.

South Africa also intends raising the matter at the next meeting of the Assembly of State Parties to the Rome Statute of the International Criminal Court. Given the complexity of the technical and legal concerns which we have, South Africa will also consider referring the matter to the International Court of Justice for a decision on the matter.

Article 97 had never been used before by the ICC. This was the first time a State Party had been invited by the ICC to consult with it regarding the difficulties which it may have in executing a warrant of arrest which may result in the State Party breaching its international obligations. The ICC was required to take the matter seriously and both parties were obliged to negotiate in good faith.

South Africa, may as a last resort also consider withdrawing from the ICC. Such a decision will only be taken when South Africa has exhausted all the remedies available to it in terms of the Rome Statute of the International Criminal Court, the Charter of the United Nations and other international law instruments.

Article 127 deals with the withdrawal from the ICC and provides amongst others.

1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

South Africa will enter into immediate discussion with the African Union and its member states on how African dispute resolution mechanisms can be implemented without delay “to ensure that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”

More particularly, South Africa will enter into multilateral and bilateral negotiations with other African countries to expedite the reform of the African Court on Human and Peoples Rights and other regional tribunals. This will ensure that serious crimes against humanity can be promptly and efficiently dealt with by these bodies and that a complementarity scheme exists whereby such crimes may be prosecuted by either the ICC or the regional bodies.

South Africa will shortly make arrangements to enter into formal discussions with the ICC on the matters which are of concern to it.

South Africa will prepare a report in respect of its interaction with the ICC in terms of Article 97 and the difficulties which it experienced in terms of Article 98(2) and submit that to the next meeting of the Assembly of State Parties.

South Africa will also propose amendments to the Rome Statute of the International Criminal Court to clarify and amplify the consulting and cooperation obligations of the ICC towards such States.

Engagements with the AU and African states will also commence. Government will appoint a team of Ministers who will immediately start the engagements with the ICC, the AU and African states.

7. Appointments

All appointments are subject to the verification of qualifications and clearance by relevant authorities

7.1. Non-Executive Directors appointments to the Board of the South African Maritime Safety Authority (SAMSA):

a) Mr Mavuso Msimang (Chairperson);

b) Nomsa Cele (Deputy Chairperson)

c) Ms Anna Sekabiso Molemane;

d) Mr Mervyn Robert Burton

7.2. Mr Virgin Anzel Seafield has been appointed Deputy Director-General of Labour Policy and Industrial Relation in the Department of Labour

7.3. Professor Richard Michael Levin. Principal of The National School of Government for five years contract ending December 2019.

Statement issued by Ms Phumla Williams, Acting Cabinet Spokesperson, Government, June 25 2015