UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law
⋄
Intergovernmental Relations, Provincial
Intervention
under Section 139, and the Separation of Powers
Constitutional Law Assignment — 2026
⋄
Module Code: CSL2601
Module Name: Constitutional Law
Assignment No.: 1
Due Date: August 2026
Semester: 2
Submitted in partial fulfilment of the requirements for Constitutional Law
at the University of South Africa.
,UNISA | Constitutional Law Intergovernmental Relations & Local Government
Question 1: The Announcement of Withdrawal from the Rome Statute
An announcement by the Head of the Executive responsible for International Relations that
South Africa is withdrawing from the Rome Statute of the International Criminal Court, and
the filing of a notice of withdrawal with the Secretary-General of the United Nations, cannot
be treated as an ordinary exercise of executive foreign policy discretion. It is ill-conceived be-
cause it collapses two separate constitutional questions into one political act: the question of
foreign policy preference, which does belong to the national executive, and the question of le-
gal authority to unilaterally undo an international obligation that Parliament itself incorporated
into domestic law.1
1.1 The Constitutional Basis for Entering and Leaving Treaties
Section 231(2) of the Constitution provides that an international agreement binds the Re-
public only after it has been approved by resolution in both the National Assembly and the
National Council of Provinces, unless it is of a technical, administrative, or executive nature,
or does not require ratification or accession.2 The Rome Statute was approved by Parliament
and given further effect domestically through the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002.3 Because Parliament was the body that clothed
the treaty with domestic legal force, the question that arises is whether the national executive,
acting alone, may strip that same treaty of its force by depositing a notice of withdrawal.
1.2 The Democratic Alliance Judgment
This is not a hypothetical concern. In Democratic Alliance v Minister of International Relations
and Cooperation and Others (Council for the Advancement of the South African Constitution
Intervening),4 the Minister of International Relations and Cooperation signed and delivered
precisely such a notice of withdrawal to the UN Secretary-General in October 2016, without
prior parliamentary approval. The Gauteng Division of the High Court declared the notice un-
constitutional and invalid, and ordered the government to revoke it.5 The court reasoned that
1
Constitution of the Republic of South Africa, 1996, s 231.
2
Constitution, s 231(2)–(3).
3
Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
4
Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advance-
ment of the South African Constitution Intervening) 2017 (3) SA 212 (GP).
5
Democratic Alliance (n 3) para 84; Library of Congress, South Africa: Notice of Withdrawal from the Rome
Statute Revoked (Global Legal Monitor, 10 March 2017) ⟨https://www.loc.gov/item/global-legal-monitor/2017-03-
10/south-africa-notice-of-withdrawal-from-the-rome-statute-revoked⟩ accessed 3 August 2026.
Page 1 of 20
, UNISA | Constitutional Law Intergovernmental Relations & Local Government
the power to withdraw from a treaty is the constitutional mirror image of the power to accede
to one: since accession required parliamentary approval under section 231(2), withdrawal,
which has the identical effect of altering the state’s binding international and domestic obli-
gations, likewise required prior parliamentary approval.6 The government could not cure the
defect by seeking Parliament’s approval for a repeal of the Implementation Act after the no-
tice had already been deposited, because that would amount to the executive dictating the
timetable and outcome of a parliamentary process, itself an intrusion on the separation of
powers.7
1.3 Why the Announcement Is Ill-Conceived
Applying this reasoning, an announcement of the kind described is ill-conceived for three
related reasons. First, it is premature: it presents withdrawal as a fait accompli before Parlia-
ment has been asked to approve it, reversing the constitutionally required sequence. Second,
it exposes South Africa to needless international and domestic litigation risk, since the notice
is liable to be declared invalid and the government compelled to retract it, causing reputa-
tional damage and legal uncertainty for a decision that was never properly authorised. Third,
it disregards the separation of powers by treating a matter that the Constitution allocates to
the legislature as though it were within the sole domain of the executive.8 A constitutionally
sound course would have required the Minister to table a decision to withdraw before Parlia-
ment, obtain the requisite resolutions of the National Assembly and the National Council of
Provinces, and only thereafter deposit the notice of withdrawal with the UN Secretary-General.
6
Democratic Alliance (n 3) paras 40, 48–49, applying art 56 of the Vienna Convention on the Law of Treaties
1969.
7
Democratic Alliance (n 3) para 67.
8
Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) paras 135–136, on the
supremacy of the Constitution and the invalidity of conduct inconsistent with it.
Page 2 of 20
College of Law
⋄
Intergovernmental Relations, Provincial
Intervention
under Section 139, and the Separation of Powers
Constitutional Law Assignment — 2026
⋄
Module Code: CSL2601
Module Name: Constitutional Law
Assignment No.: 1
Due Date: August 2026
Semester: 2
Submitted in partial fulfilment of the requirements for Constitutional Law
at the University of South Africa.
,UNISA | Constitutional Law Intergovernmental Relations & Local Government
Question 1: The Announcement of Withdrawal from the Rome Statute
An announcement by the Head of the Executive responsible for International Relations that
South Africa is withdrawing from the Rome Statute of the International Criminal Court, and
the filing of a notice of withdrawal with the Secretary-General of the United Nations, cannot
be treated as an ordinary exercise of executive foreign policy discretion. It is ill-conceived be-
cause it collapses two separate constitutional questions into one political act: the question of
foreign policy preference, which does belong to the national executive, and the question of le-
gal authority to unilaterally undo an international obligation that Parliament itself incorporated
into domestic law.1
1.1 The Constitutional Basis for Entering and Leaving Treaties
Section 231(2) of the Constitution provides that an international agreement binds the Re-
public only after it has been approved by resolution in both the National Assembly and the
National Council of Provinces, unless it is of a technical, administrative, or executive nature,
or does not require ratification or accession.2 The Rome Statute was approved by Parliament
and given further effect domestically through the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002.3 Because Parliament was the body that clothed
the treaty with domestic legal force, the question that arises is whether the national executive,
acting alone, may strip that same treaty of its force by depositing a notice of withdrawal.
1.2 The Democratic Alliance Judgment
This is not a hypothetical concern. In Democratic Alliance v Minister of International Relations
and Cooperation and Others (Council for the Advancement of the South African Constitution
Intervening),4 the Minister of International Relations and Cooperation signed and delivered
precisely such a notice of withdrawal to the UN Secretary-General in October 2016, without
prior parliamentary approval. The Gauteng Division of the High Court declared the notice un-
constitutional and invalid, and ordered the government to revoke it.5 The court reasoned that
1
Constitution of the Republic of South Africa, 1996, s 231.
2
Constitution, s 231(2)–(3).
3
Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
4
Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advance-
ment of the South African Constitution Intervening) 2017 (3) SA 212 (GP).
5
Democratic Alliance (n 3) para 84; Library of Congress, South Africa: Notice of Withdrawal from the Rome
Statute Revoked (Global Legal Monitor, 10 March 2017) ⟨https://www.loc.gov/item/global-legal-monitor/2017-03-
10/south-africa-notice-of-withdrawal-from-the-rome-statute-revoked⟩ accessed 3 August 2026.
Page 1 of 20
, UNISA | Constitutional Law Intergovernmental Relations & Local Government
the power to withdraw from a treaty is the constitutional mirror image of the power to accede
to one: since accession required parliamentary approval under section 231(2), withdrawal,
which has the identical effect of altering the state’s binding international and domestic obli-
gations, likewise required prior parliamentary approval.6 The government could not cure the
defect by seeking Parliament’s approval for a repeal of the Implementation Act after the no-
tice had already been deposited, because that would amount to the executive dictating the
timetable and outcome of a parliamentary process, itself an intrusion on the separation of
powers.7
1.3 Why the Announcement Is Ill-Conceived
Applying this reasoning, an announcement of the kind described is ill-conceived for three
related reasons. First, it is premature: it presents withdrawal as a fait accompli before Parlia-
ment has been asked to approve it, reversing the constitutionally required sequence. Second,
it exposes South Africa to needless international and domestic litigation risk, since the notice
is liable to be declared invalid and the government compelled to retract it, causing reputa-
tional damage and legal uncertainty for a decision that was never properly authorised. Third,
it disregards the separation of powers by treating a matter that the Constitution allocates to
the legislature as though it were within the sole domain of the executive.8 A constitutionally
sound course would have required the Minister to table a decision to withdraw before Parlia-
ment, obtain the requisite resolutions of the National Assembly and the National Council of
Provinces, and only thereafter deposit the notice of withdrawal with the UN Secretary-General.
6
Democratic Alliance (n 3) paras 40, 48–49, applying art 56 of the Vienna Convention on the Law of Treaties
1969.
7
Democratic Alliance (n 3) para 67.
8
Merafong City Local Municipality v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) paras 135–136, on the
supremacy of the Constitution and the invalidity of conduct inconsistent with it.
Page 2 of 20
