Urgent Application for Judicial Review against the NCACC and Minister of Defence

Part A

In the first part of the application for judicial review, which is still pending, the submitted arguments proceeded on three grounds.

Licensing decisions are unlawful and unconstitutional

First, that the decisions of the NCACC were unlawful and unconstitutional as they were in violation of binding domestic and international law. The crux of this argument was that the contested licences risked escalating armed conflict in Yemen, and that the destination states (Saudi Arabia and UAE) should not be receiving military goods due to their poor human rights record.

By enabling South African arms companies to export arms, it was argued that the NCACC did not meet the criteria and principles specified by the NCAC Act, in particular Article 15.

Under international law, the claimants also invoked Common Article 1 of the Geneva Conventions and ATT Article 7, notably the lack of respect for IHL by the destination states.

Licensing decisions are unreasonable and irrational

Second, that the decisions by the NCACC were unreasonable and irrational, because at the time of issuing the licences the authorities knew or ought to have known about the serious violations committed by Saudi Arabia and the UAE in Yemen.

On this ground, the claimants relied on evidence of the escalating humanitarian crisis in Yemen, as well as South Africa’s statements on this matter as a non-permanent member of the UN Security Council from 2019-20.

Improper reference to diplomatic channels

Third, that the NCACC had improperly referred to diplomatic channels when granting licences, compromising the requisite independent and non-political nature of decision-making on licensing.

Part B

In a separate part of the application, the claimants also sought to compel the licensing authority to disclose the names of entities that had applied for, or been granted, permits enabling the export of arms to these destinations in order to join them to proceedings.

Court Hearing (Part B)

While the contested licensing decisions are yet to be reviewed in court, part B of the application was heard in June 2021.

In its judgement, the Court called on the NCACC to serve the relevant court documents to the requested entities so as to enable them to join the proceedings.

Case Management

Following various procedural delays, and in an effort to expedite the case, the matter was referred for case management in January 2022.

Soon after, the appointed judge directed the NCACC to comply with the earlier court order to issue the court documents to the entities that had been granted the contested permits and to hand over the full record, which includes the documentation that lead to the decisions made by the NCACC in this matter. Uniform Rules of the Court, Rule 53