The Gauteng Division of the High Court in Pretoria has set aside permits that were granted by the National Conventional Arms Control Committee (NCACC) to facilitate arms transfers to Myanmar, and ordered the NCACC to suspend any contract or export permit to countries that have experienced an unconstitutional change of government or to have committed crimes against humanity, war crimes, or genocide.
The order was granted on 19 July on behalf of the Southern Africa Litigation Centre (SALC), represented by Lawyers for Human Rights (LHR). The two entities, along with Justice For Myanmar, an activist organisation that works on arms trade to Myanmar, welcomed the High Court’s order “as it will have immediate consequences not only for any future arms exports from South Africa to Myanmar, but to many other countries too.”
“Arms exports to a country that violates human rights and that underwent a military coup are illegal. This order is crucial in creating a more responsible and accountable arms trade regime in South Africa,” said SALC’s International Justice Cluster Lead, Dr Atilla Kisla.
“It shows that human rights and international law are limiting factors for arms exports. The example of Myanmar illustrates that words of condemnation or concern are not sufficient. Fighting for human rights requires action in the form of applying the law and suspending and/or cancelling permits if needed.”
“We welcome the High Court’s ruling in this matter as it protects the people of Myanmar by clarifying that such arms transfers are not in compliance with domestic and international law,” said Justice For Myanmar spokesperson Yadanar Maung. “Such permits should never have been approved in the first place. We hope to see South African arms transfer authorities give full effect to the Court’s decision.”
On 22 October 2022, the Southern Africa Litigation Centre filed an application seeking a declarator that the NCACC suspend any existing contract and/or export permit(s) pertaining to the transfer of arms to a country that has experienced an unconstitutional change of government; and/or a country reasonably suspected of having committed any crime against humanity, war crime, or genocide.
The SALC said that between 2017 and 2021, South Africa exported R215 million worth of military hardware to Myanmar.
According to NCACC annual reports, South Africa in 2017 exported 200 rangefinders worth R57.5 million and 10 transceivers worth R2.8 million to Myanmar. In 2018, 150 communication systems worth R22.8 million were exported along with 90 observation/target acquisition systems worth R13.3 million. In 2019, 201 items of ‘electronic equipment’ valued at R29.8 million were sold to Myanmar. That year 570 communications devices worth R2.3 million were also sold to the Asian nation.
The following year, 280 electronic equipment items worth R40.2 million were exported to Myanmar along with 505 communication equipment items worth R2.1 million, NCACC documents show. In 2021, 165 communication equipment items worth R47.4 million were exported to Myanmar.
Giving background to the humanitarian and political situation in Myanmar, the SALC said that in 2016 and 2017, Myanmar authorities took measures against their own population that led to serious human rights violations in the country, a refugee crisis of the Rohingya minority, and allegations of genocide against the Rohingya minority.
In November 2019, the International Criminal Court (ICC) authorised an investigation by the ICC Prosecutor into the situation of Myanmar/Bangladesh for alleged crimes against humanity. In a separate case, on 23 January 2020, the International Court of Justice (ICJ) issued provisional measures against Myanmar and directed Myanmar to act in accordance with the Genocide Convention in relation to the members of the Rohingya group in its territory. On 1 February 2021, the Myanmar military overthrew the democratically elected government in an unconstitutional coup. Since the coup, no South African defence exports have been authorised to Myanmar.
According to the NCACC Act, the NCACC is required to cancel, amend or suspend a permit “if it is in the interest of maintaining and promoting international peace or avoiding repression and terrorism”.
The High Court ruling could have implications for other South African defence exports to countries like the United Arab Emirates and Saudi Arabia, which have intervened militarily in Yemen, and which are big customers for South African defence products. South Africa has also exported weapons to states engaged in domestic conflict, including Mozambique and the Democratic Republic of Congo.
This is not the first time the NCACC has faced legal action. In 2020, Open Secrets and Lawyers for Human Rights, through a Promotion of Access to Information Act (PAIA) request, demanded to know which companies had exported to Saudi Arabia and the UAE. They were not satisfied with the NCACC’s response, and launched litigation. As the NCACC did not respond, a default judgement was issued for the NCACC to provide a list of exporting companies. Open Secrets also sought a judicial review of NCACC exports to Saudi Arabia and the UAE.
The latest SALC High Court application was unopposed, with NCACC secretariat head, Advocate Ezra Jele, telling Daily Maverick that he was unaware of the latest judgement.
The defence industry has expressed frustration at the inability of the NCACC to be aware of these legal cases, never mind challenge them.
