In 2009 and 2010, President of Sudan, Omar Al Bashir became the subject two warrants of arrest issued by the ICC. He was charged with crimes against humanity, war crimes and genocide. In 2015, Al Bashir attended an African Union Summit in South Africa. Instead of complying with its legal obligation to arrest him - which was confirmed in urgent High Court litigation at the time - the South African government allowed Al Bashir safe passage in and out of the country.
The South African government later appealed against the High Court judgment to the Supreme Court of Appeal, where the HSF joined proceedings as a ‘friend of the court’ (amicus curiae). Ultimately, the SCA dismissed the South African government’s appeal, reaffirming that its failure to arrest Al Bashir is unlawful.
Manuel Chang is a former Finance Minister of Mozambique and a former Mozambican member of Parliament. During his time in office, he is alleged to have been involved in fraud relating to loans secured from foreign financiers to various Mozambican companies. Mr Chang faces charges of fraud and corruption in both the United States of America (USA) and Mozambique.
While en route to Dubai in December 2018, Mr Chang was arrested in South Africa in terms of an extradition treaty between South Africa and the USA. A legal dispute ensued, centered around the question of whether South Africa should extradite Chang to the USA or to Mozambique. The South African Minister of Justice and Correctional Services at the time chose to extradite Mr Chang to Mozambique, without considering whether Mr Chang would enjoy immunity against prosecution in Mozambique. The HSF joined a collective of Mozambican civil society organizations in High Court litigation which successfully set aside this decision as unlawful.
However, in August 2021, a new Minister also made a decision to extradite Mr Chang to Mozambique. The HSF joined the same Mozambican civil society collective to opposed the South African government’s political decision, as a result of a continued lack of clarity regarding Mr Chang’s immunity and the likelihood of a prosecution in Mozambique. This time around, the High Court ordered that Mr Chang be extradited to face prosecution in the USA and not be sent back to Mozambique.
This appeal arises from the first South African prosecution in which accused persons have been charged with apartheid-era crimes against humanity under customary international law. The case concerns the 1982 deaths of the COSAS 4 and raises the question whether such crimes may still be prosecuted decades after they were committed. The accused contend that the prosecution has prescribed, while the State argues that crimes against humanity are prosecutable under section 232 of the Constitution and customary international law. The High Court ruled in favour of the State, and the Supreme Court of Appeal will now decide whether that finding should stand.
