The Society for the Protection of Our Constitution has failed in its attempt to force the South African government to declare Israel its enemy for its acts of genocide against the people of Palestine.

The society approached the Gauteng High Court, Pretoria, on an urgent basis in a bid to compel the government and a dozen other sovereign states to declare Israel an enemy of South Africa.

Brazil, Russia, India, China, Norway, Switzerland, Sweden, Denmark, UK, Ireland, and France were among the countries cited by the organisation, which wanted them to take reasonable measures, including using force, to enable the about 3,000 trucks, containing food, medicine, water, vaccines and aid, currently stuck at the border between Egypt and Gaza to gain entry into Gaza.

The society wanted the court to direct the South African government to call upon the relevant organs of the United Nations (UN) to take such action under the UN Charter as they consider appropriate to suppress Israel’s infliction of acts of genocide upon the people of Palestine.

In addition, the high court was also asked to direct the Government to take measures to impose economic, cultural, sport, and academic sanctions against Israel.

The society wanted the government to direct Israel’s ambassador to South Africa to return to his/her place of origin.

Denmark filed a notice in which it can raise a point of law only without having to submit an answering affidavit with detailed factual averments, and stated that the society had not complied with the Foreign States Immunities Act and international service requirements.

The Act requires that the service of legal process on a foreign state must occur through the Department of International Relations and Cooperation for onward transmission to the Foreign Ministry of the state concerned.

In terms of the Act, no direct receipt by the Foreign Ministry by service on an embassy or diplomatic mission is valid, and there is a mandated two-month waiting period after proper service to safeguard foreign states from rushed proceedings.

The society later withdrew its application against the 12 states, but Judge Sulet Potterill found that Israel could not be declared an enemy of the South African state if it is not a party to the proceedings.

She said the blockage of aid to vulnerable people is horrific and is ongoing, but the society did not set out what triggered its application and failed to set out explicitly the circumstances that render the matter urgent.

The judge added that the society also did not set out why it cannot be afforded substantial redress at the hearing in due course.

“Directing the government to impose sanctions against the State of Israel and withdrawing Israel’s ambassador is incompetent due to the withdrawal, but also because this would breach the separation of powers principle,” the judge ruled.

Judge Potterill said the orders sought by the society were all aspects of foreign policy, which is essentially the function of the executive and will be better served by diplomats than the judiciary.

“A court cannot tell the government to make diplomatic interventions, it is within the prevue of the government,” reads the judgment delivered on June 4.

Additionally, the order sought to call upon relevant UN organs was also incompetent as it would be vague and impractical, according to Judge Potterill.

The judge also stated that she could not direct the government to appeal to the 11 other countries to take reasonable measures, including using force, to enable about 3,000 trucks, containing food, medicine, water, vaccines and aid, stuck at the border between the Egypt and Gaza to gain entry into Gaza as this was also incompetent as a result of the withdrawal.

In dismissing with costs the society’s application, Judge Potterill said even if good intentions were behind its lodging, it was so factually and legally flawed in its execution.

“The service was fatally flawed, the withdrawal had fatal consequences for the application, the factual basis for the application was far-fetched and does not provide a nexus to the relief sought,” the judge found.

loyiso.sidimba@inl.co.za

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