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South Africa grants Putin diplomatic immunity for BRICS summit

South Africa grants Putin diplomatic immunity for BRICS summit
Russian President Vladimir Putin (right) and South African President Cyril Ramaphosa at the Russia-Africa Summit in Black Sea resort of Sochi, Russia, 23 October 2019. (Photo: Mikhail Svetlov / Getty Images)

In preparation for the BRICS foreign ministers’ meeting and summit, the South African government has granted diplomatic immunity to all officials involved.

The government has gazetted International Relations and Cooperation Minister Naledi Pandor’s notice for the Diplomatic Immunity and Privileges Act to be granted to all international officials at BRICS-related events in South Africa.

Clayson Monyela, the spokesperson for the Department of International Relations and Cooperation, said Pandor’s notice was “routine”, and such notices were issued every time there was a similar international meeting in South Africa.

putin brics immunity

International Relations and Cooperation Minister Naledi Pandor. (Photo: Gallo Images / Frennie Shivambu)

The notice, signed on 19 May and gazetted on Monday, states that Vladimir Putin and his international counterparts will be granted immunities and privileges provided in terms of Section 6(1)(a) of the act.

Read more in Daily Maverick: In pictures — a whole lot of fokol being loaded on to the Lady R 

The act states that this immunity is granted to officials and experts of the United Nations, any specialised agency or organisation, and representatives of any state participating in an international conference or meeting convened in South Africa.

Section 6(1)(a) of the act sets out that immunities “are specifically provided for in the Convention on the Privileges and Immunities of the United Nations, 1946, or the Convention on the Privileges and Immunities of the specialised agencies, 1947, as the case may be, in respect of the participation in conferences and meetings”.

The immunities and privileges in terms of the United Nations Convention grant immunity from personal arrest or detention.

“Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind,” the document reads.

Read more in Daily Maverick: Ramaphosa set to join African mission to broker peace talks between Ukraine, Russia

A warrant for Putin’s arrest was issued by the International Criminal Court in The Hague in March, and since South Africa is a member of the formation, it is obliged to arrest Putin when he is in the country.

Despite this, South Africa, as the current chair of the BRICS alliance, has officially invited Putin to the summit in August.

The International Relations Department is also seeking a legal opinion on how to deal with the ICC’s arrest warrant. Putin’s possible attendance at BRICS has been a bone of contention since the warrant was issued.

Ramaphosa appointed an interministerial committee last month which is expected to consider South Africa’s position in relation to the ICC. It will be chaired by Deputy President Paul Mashatile.

This follows confusion over South Africa’s stance: Ramaphosa announced that the country would pull out of the international statutory body, but the Presidency later made a U-turn, saying that South Africa would remain a signatory to the Rome Statute.

It has now been confirmed that Russian Foreign Minister Sergey Lavrov will take part in the BRICS foreign ministers’ meeting in Cape Town on Thursday and Friday. 

Meanwhile, DA leader John Steenhuisen filed an application to the Pretoria High Court on Monday seeking an urgent order to the government to arrest Putin if the ICC requests South Africa to arrest him if he sets foot in the country.

In his affidavit to the court, Steenhuisen requests a three-part court order.

The first would be a general declaratory order setting out the government’s obligations under the Rome Statute, which governs the operations of the ICC and the ICC Implementation Act, the South African law which domesticates the country’s ICC obligations into its own national law.

Second, Steenhuisen seeks an order confirming that the director-general of justice, on receipt of a request from the ICC to arrest and surrender Putin, must forward the arrest warrant to a magistrate.

The third order Steenhuisen seeks would confirm that the other respondents to his application are obliged to ensure that Putin is arrested if he enters the Republic.

The other respondents are the President, the minister and the director-general of Justice and Constitutional Development, the minister and director-general of International Relations and Cooperation, the minister and the national commissioner of police and the Deputy President.

“This is plainly a constitutional matter,” Steenhuisen says in his affidavit. “It involves the violation or possible violation of the rule of law (a foundational value of the Constitution) and separation of powers by the government, including by way of the threatened violation of South Africa’s international law obligations, which have been given effect domestically by the Implementation Act, which Parliament has bound South Africa to and on which the Supreme Court of Appeal has previously ruled.”

He noted that the Constitutional Court had confirmed that in constitutional matters, courts were empowered to grant just and equitable remedies.

He said the DA believed the just and equitable remedy that it was necessary for the court to grant in this matter to protect and vindicate the rule of law and separation of powers was to issue the three substantive orders he referred to.

The South African government had indicated that it is seeking a legal loophole which would allow it to host Putin without violating the ICC Rome Statute. This loophole would be found in Article 98 of the Rome Statute.

While Article 27 of the Rome Statute stipulates that even sitting heads of state are not immune from prosecution by the ICC, Article 98 appears to provide an exception to this general rule.

Article 98(1) states that:

The Court may not proceed with a request for surrender or assistance which would require the requested State [in this case South Africa]  to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person … of a third State, [in this case Putin and Russia]  unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

On the face of it, this article appears to suggest that the ICC could not ask Pretoria to arrest and hand over Putin unless Russia agreed to waive Putin’s immunity from prosecution – which Moscow would obviously not give.

South Africa tried to invoke Article 98 when the ICC asked it to arrest and surrender then Sudanese President Omar al-Bashir. But the ICC ruled then that because the UN Security Council had referred the Sudan situation to the ICC, Article 98 did not apply.

However, the Ukraine situation under which the ICC issued a warrant of arrest for Putin, was not referred to the ICC by the UN Security Council. It was taken up by the ICC prosecutor.  South Africa seems to believe this could offer it a way out of its dilemma over Putin. But Atilla Kisla, international justice cluster lead at the Southern Africa Litigation Centre, has pointed out in a recent article in the Mail and Guardian that Article 98 would not remove South Africa’s obligation to arrest and surrender Putin if the ICC asked him to.

He said Article 98 imposed a possible restriction on the ICC to request South Africa to arrest and surrender Putin. It would be up to the ICC to decide whether to proceed with a request to South Africa to arrest and surrender Putin.

South Africa might face an even greater obstacle in its own ICC Implementation Act which is also explicit that sitting heads of state do not enjoy immunity from prosecution – but without any qualification like Article 98. DM


Comments - Please in order to comment.

  • Paul Savage says:

    No doubt the ANC would have invited Adolf Hitler to the summit if the Nazi party had been secretly funding its operations. They know no shame whatsoever.

  • Heinrich Holt says:

    Funny and ironic that the ANC now conveniently uses apartheid era legislation to suit their agenda.

  • David Pennington says:

    Pandor the Hutt

    • Lisa nel says:

      Or Pandora’s box is operated by Eskom.

    • Gordon Bentley says:

      I don’t think that comment is fair and reasonable.
      A Hutt is a grotesque dishonest alien species in the Star Wars franchise.
      Naledi Pandor is doing what she is told to do by her mislead party bosses whether she agrees or not.
      I personally admire her as a person and for her Scientific education. She is streets above most parliamentarians and her detractors.

  • Patrick O'Shea says:

    Separation of party loyalties from governmental responsibilities once again proven to be non-existent.

  • Clare Yeowell says:

    The ANC may have a misplaced love affair with Russia/Putin, but have conveniently forgotten they govern a country called South Africa. Conclusively proves they are only interested in themselves and not the people of this country. And too stupid to realise that they are only a means to an end for Putin.

  • Jennifer Hughes says:

    As if I could possibly be more disgusted with the disgrace that is today’s ANC.

  • Val Ruscheniko says:

    AGOA termination for SA comin’ up fast around the bend!

  • matthew.campbell67 says:

    And another own goal……

  • cjg grobler says:

    This is what the ANC are condoning; search “ukraine before and after satellite”

  • cathy.wardle says:

    I wonder how much time and money has been wasted on lawyers and consultants trying to find the solution to the conundrum that is Putin! Such misplaced loyalties when the country is being sold
    down the river

  • Ra Ma says:

    The two most powerful power brokers in the world, through disinformation and undermining democracy, are Murdoch and Putin. Murdoch has no interest in South Africa. So if the ANC stands a chance they need the vast army of Prigozhins Russian trolls to fight on their side in the next SA election. Free and fair it will not be. The end of the democratic experiment.

  • Richard Bryant says:

    Amazing how efficient this government is when dealing with matters putin. They were able to dock and load cargo in the middle of the night during loadshedding. No problem. They have the whole government now working on how to keep putin out of jail.

    But they cannot fix a pothole, or rather, they couldn’t care less about things like that. Such as getting electricity into homes or clean water. Or dealing with hundreds of thousands of people living is SA under cardboard boxes. Or teaching children to read.

    That disgusting Lavrov will be defiling the City of Cape Town on Thursday with his presence. I can only hope he gets some bottled water from Hammanskraal.

    • Jane Crankshaw says:

      Spot on….Lavrov is Putin’s LapDog -the man couldn’t see or acknowledge the truth if it bit him in the arse!

    • Stephen Paul says:

      Could not put it better myself. Lying Lavrov and the whole Putin gang also need to be declared international war criminals. In 30 years the amoral cANCer has dragged this country down into the gutter, literally, and soon will only be fit to associate with the scum of the earth.

  • Wilhelm Boshoff says:

    SA got the warnings. Treasury explained the pain that will follow should we not heed the warning. Yet the ANC keeps on digging. What do we do? We use hope as a strategy – hoping that the ANC will be voted out 2024. Unfortunately it will not happen. What is to be done?

  • Johan Buys says:

    Welcome to 2024. R20 to the dollar, R24 to the pound.

  • Hermann Funk says:

    I can only repeat what I said before: “Ramaphosa is a greater danger to this country than Zuma ever was.”

  • Trenton Carr says:

    Everyone ready to bend over for Cortisone face?

    • Peter Holmes says:

      My response is mishievous and somewhat off-topic, but I can’t resist saying it: looking at the photo of Ms Pandor at the top of the article, you are clearly not referring to her!

  • Dee Bee says:

    I think the motor industry should be making contingency plans to relocate to Botswana right now, because we will not make it to the BRICS summit as an AGOA beneficiary if this goes ahead. Our immoral, parasitic ruling party has just trampled on the lives of tens of thousands of workers in the auto value chain, as well as similar numbers in the agri-industrial value chain and other sectors. Complete scum. Collapse in South Africa is one step closer.

  • idnankin says:

    President of commissions, enquiries and sub committees Ramaphosa. Can he not take a desicion without having to form some kind of body. His procrastination and flirting with Russia is causing South Africa untold harm.

  • Libby De Villiers says:

    So the ANC pay master is coming to town and the honourable members can dance around him with their little cupped hands while yet again serving this country, on a silver platter, to yet another colonist.
    And when the show is over, they will buy more shiny things to make the slavery they have sold themselves into more bearable and the hangover from the debauched Putin-party less debilitating.
    Then they will start looking around for more to steal and plunder and tell themselves the mess they find themselves in, is someone else fault.

  • Sam Shu says:

    Criminal organizations supporting each other. This is the state we live in and, while we hope Steenhuizen’s legal approach makes some difference, more hopefully, we should be having mass demonstrations of people power against Lavrov wherever he appears and also putin if/when he arrives. Make it impossible for the BRICS summit to operate.

    • Robert Dempster Dempster says:

      Totally agree – South Africans have perfected the art of protesting, we have to get out there and show Ramaphosa that we reject the immunity granted to Putin.

  • Antony Goedhals says:

    The shame of being South African under the ANC is unbearable. The unctuous, slathering snake Sergei is coming to prepare the pit for his master’s coming – the vile, evil viper Vlad. On behalf of South Africans who love their country, I ask the international community to sanction the ANC, and apologise to Ukraine for what we are doing. May there be solidarity between the people of Ukraine and South Africa: as Russia is exterminating Ukraine, so the ANC is ravaging our once-beautiful land. But the time of tyrants is over: from the ashes of their demise may a new world of peace and fairness rise. Slava Ukraini! God save South Africa.

  • SA needs to reconsider its position within BRICS. The balance of trade with western trade partners outside of BRICS provides a clear answer. SA is in no position economically or politically to continue ‘kicking own goals’. With growing unemployment, massive social dependency, disinvestment, dwindling knowledge bank due to immigration and shrinking tax base; SA has not much room to manoeuvre politically or economically. We could face secondary sanctions based on our actions in regards to serious questions surrounding SA-Russia cooperation/backing.

  • Brian Doyle says:

    Could Pandor and Ramaphosa be charged with aiding and abetting a criminal?.They should be. Caring South African citizens should also boycott any hotel chains who will house these delegates.

  • Ernest Esterhuizen says:

    Simply no respect for the law at any level. Again wanting to show that they are above any law because they are a law unto themselves. How disrespectful and looking after their own bacon. They get away because of the level of witchcraft they engage in – that power they use makes them falsely believe that they are untouchable. But their moment and time of regret is just around the corner. When they open their mouths it is negative, bad and demoralising news – Politics, interest rates, loadshedding, petrol prices, many different taxes and more ways being looked at how they can suck the people dry through new taxes. What is amazing, there is not a single honest person among them despite what they utter publicly. To find out now what a snake Gordhan is despite having been the one who appointed De Ruyter, when he was the one who told the nation “join the dots” while he was joining the tots.

  • Alastair Moffat says:


  • Iam Fedup says:

    One word: imbeciles

  • Edwin Hees says:

    The Nazi parallel is worth pondering for a moment. In the 1930s South Africa came very close to supporting one of the 20th-century’s most appalling warmongering monsters. We didn’t, but are we on the verge of being on the wrong side of history this time round?

  • divienneconyngham says:

    I have just returned from 6years living in Portugal because I really love and missed my country. But what a disaster I have come back to! I feel so helpless and want desperately to do something to make a change. I guess the only thing to do is vote. Vote for change. God bless South Africa. I pray for my beloved country.

  • Karl Sittlinger says:

    And just when I start thinking the ANC and their band of thieves cannot screw up any more, they manage non the less. Do they not realize they are destroying this country for 30 silvers? I really hope people get over their personal disapproval for the DA and some of their individuals, and do they right thing instead of focussing on non issues. It’s literally our last hope.

  • Sydney Kaye says:

    98(1) seems pretty clear. In pain Englush it says he can’t be arrested without Russia’s approval. And I presume that clause is there for good reason : namely that arresting a head of state, detaining him and extradition him to the Hague is impractical and fraught with unforseeable dangerous consequences.

  • robcurrie says:

    Putin and Lavrov, never mind what the ANC does and says, the tribe has voted you out.

  • Chris Skinner says:

    If I was Putin I still would not visit SA. There could well be an assassination attempt here that our not so esteemed security services may not be able to thwart. Funded by either the West or possibly even his own homeland as part of new leadership battles.
    My money says he won’t come.

    • John Slyer says:

      Putin will not come, in person, due to ill health and fear of assassination but rather one of his doubles would. But the end result for South Africa would be disastrous as has been so well pointed out by correspondents to this publication.

  • Peter Worman says:

    The ANC is playing with fire and I doubt Russia has any altruistic intentions toward SA. I dont know which is the better of the two evils, the USA or Russia or maybe they’re one and the same

  • Zakir Kadwa says:

    Isn’t it strange that USA is not a signatory of the ICC…
    Infact, they coerced the ICC not to investigate the CIA war crimes which were identified by ICC..
    Furthermore, the Bush administration had blackmailed many signatories of the ICC to sign bilateral agreements so as not to arrest any of their servicemen. USA actually threatened to withhold aid if they didn’t sign this agreement … Theres actually an Act in USA law, that allows them to forcefully extract any servicemen from ICC if they happened to be detained…
    Ultimately, ICC has also been politicized.

    • Charl Marais says:

      Your comment politicizes the ICC and seems to condone Russian actions – attempted genocide of Ukrainian nation, kidnapping young children, attacking civilian infrastructure, invading a neighbouring country.

  • Gregory Michael Van Der Krol says:

    This whole BRICS affair seems to be a load of balldadash to me. Seems like a waste of time and money. Politicians grandstanding and strutting around like peacocks…

  • Pierre Steynberg says:

    Tyrannical. There is no law above the ruling Party.

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