Urgent Application for Judicial Review against the NCACC and Minister of Defence
Armed Conflict in Yemen
Saudi Arabia, United Arab Emirates
Administrative Challenge (Judicial Review)
The request that was jointly submitted on behalf of SALC and Open Secrets seeks to judicially review decisions by the NCACC to grant permits that authorised the export of conventional arms to Saudi Arabia and UAE despite the involvement of these destination states in the conflict in Yemen. Information about the value and end user of these exported arms is unknown as it is not reported on publicly.
The claimants main argument is that the NCACC has failed to seriously consider the large body of evidence indicating the commission of serious IHL and IHRL violations by Saudi Arabia and the UAE in Yemen.
This case is still under consideration, and has recently been referred for case management in an effort to expedite the case.
Case Development: New Court Order
The appointed judge directs the NCACC to issue court documents to the entities that had been granted the contested permits and to hand over the full record of its decision-making.
Case Development: Judgement on Part B
The Court called on the NCACC to serve the relevant court documents to entities that had applied for, or been granted, the contested permits to join them to proceedings.
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.
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.
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.
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
03 Jun 2021
Case enters the courts. Claim submitted to the North Gauteng High Court in Pretoria seeking disclosure of entities granted the contested export licences (Part A), and the judicial review of licensing decisions (Part B).Read the claimant's submission here
15 Jun 2021
Judgement issued on Part A. Alternative remedy accepted.
03 Aug 2021
Court orders the NCACC to hand over the full record to the Registrar.
27 Jan 2022
Directive issued to the NCACC. The judge again calls for the NCACC to comply with the court order and hand over the full record.
Founding Affidavit in the Complaint against the Chairperson of the NCACC and the Minister of DefenceRead the document in full
Notice of Motion in the Complaint against the Chairperson of the NCACC and the Minister of DefenceRead the document in full
Supporting Affidavit of Radhya AlmutawakelRead the document in full
Expert Affidavit of Navanethem PillayRead the document in full
Supporting Affidavit of Hennie Van VuurenRead the document in full
Contact the Claimants
If you would like to know more about this case, please get in touch with our primary contacts Michael Marchant (Open Secrets) by email here and Dr. Atilla Kisla (Southern Africa Litigation Centre) by email here.