On 30 October 2014

The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe.  The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations.

The Constitutional Court in a unanimous judgment dismissed the appeal by the SAPS and ordered SAPS to investigate the alleged crimes.

In March 2008, the Southern African Litigation Centre (SALC) submitted a detailed dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA), requesting that the allegations of torture be investigated.  The dossier detailed the alleged torture of, amongst others, members of the Movement for Democratic Change by Zimbabwean authorities who are, or have been, present in South Africa from time to time.

In June 2009, SALC and the Zimbabwe Exiles Forum (ZEF) were informed by the Acting National Director of Public Prosecutions that SAPS did not intend to initiate an investigation.  SALC and ZEF applied to the Pretoria Division of the High Court for an order reviewing and setting aside the decision not to investigate.  The order was granted by the High Court.

An appeal by the National Commissioner of the SAPS and the Acting National Director of Public Prosecutions was dismissed by the SCA.  Both the High Court and the SCA held that in terms of the International Criminal Court Act (which domesticates the Rome Statute of the International Criminal Court), the South African Police Service Act and the Constitution, SAPS were required to investigate the allegations of torture.

The applicant, the National Commissioner of SAPS, now appeals to the Constitutional Court against the decision of the SCA on two separate bases.  Firstly, in relation to the merits, SAPS submits that the SCA erred in law in establishing what amounts to an absolute legal rule to the effect that SAPS must in all circumstances investigate core crimes, even when there is no existing nexus with South Africa.  According to the applicant, the effect of the SCA’s judgment is that whenever there is a prospect that is not entirely discountable that a perpetrator of an international crime may in future be present in South Africa, the SAPS must investigate the alleged crime in the suspect’s absence.

Secondly, in relation to the relief ordered by the SCA, SAPS submits that the SCA erred by, of its own accord, substituting its decision for that of SAPS; and by granting extraordinary relief (substitution, instead of remittal) in circumstances where:

• it was not sought;

• no case was made out for it;

• no argument was presented on it; and

• no submissions or debate were invited on it by the SCA.

SALC and ZEF (the respondents in the Constitutional Court) submit that the conclusion of the SCA was clearly correct.  That is so since section 4(1) of the ICC Act makes it a crime under South African domestic law for anybody to commit an international crime subject to the Rome Statute, regardless of where it occurred.  And section 205(3) of the Constitution authorises SAPS to investigate all crimes under South African domestic law and not only those committed within South Africa.  Moreover, section 17D(1)(a) of the SAPS Act expressly provides that one of the functions of the Hawks is to investigate “national priority offences” which include any offence under the ICC Act.

Seven amici curiae (friends of the court) have been admitted in this matter.

The first to fourth amici (John Dugard and three others) support the relief sought by the respondents and submit that presence of the accused in South Africa is not required to initiate an investigation, but it is a requirement in order to put a criminal charge to the accused.  The first to fourth amici submit that, in this particular case, in order to promote the fundamental rights enshrined in the Bill of Rights, South African domestic law requires that the appropriate authorities investigate these alleged crimes.

The fifth amicus (the Tides Center, an American-based nongovernmental organisation which runs the AIDS-Free World project) submits that, when considering whether to initiate or continue an investigation into alleged crimes against humanity, the likelihood that the alleged perpetrator will voluntarily be present in South Africa at some stage is, at most, a secondary consideration.  The SAPS must first carry out an investigation, and only thereafter, having considered the evidence available to it, may it determine what steps need to be taken, if any, to secure the presence of the accused or to make the evidence gathered available to the International Criminal Court (the ICC) or foreign states so that they may pursue a prosecution.

The sixth amicus, the Peace and Justice Initiative, submits that the findings made by the SCA were correct as they are consistent with international law.  Moreover, imposing a duty on SAPS to investigate is consistent with the Constitution, customary international law, the spirit of the ICC’s complementarity principle, and the practice of state parties to the ICC Statute and the United Nations Convention Against Torture.

The seventh amicus, the Centre for Applied Legal Studies (CALS), focuses on the effect of regional international law on the interpretation of the provisions and the powers of the SAPS and the NPA.  CALS submits that South Africa and Zimbabwe’s mutual international law obligations, reinforced by its specific regional obligations, to promote and protect human rights support the recognition of the power and duty of South African authorities to investigate international crimes committed in Zimbabwe in appropriate cases.

In a unanimous judgment authored by Acting Justice Majiedt and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurred, the Constitutional Court dismissed the appeal by the SAPS.

The Court held that under the Constitution, the ICC Act as well as South Africa’s international law obligations, the SAPS has a duty to investigate the crimes against humanity allegedly committed in Zimbabwe. Importantly, this obligation is limited to instances where the country in which the crimes are alleged to have occured is unwilling or unable to investigate, and an investigation would be reasonable and practicable. The Court found this to be a case where those requirements were met.

The Court found that an investigation conducted within South Africa would not violate the principle against intervention in another state’s territory, and that due to the proximity of Zimbabwe to South Africa it was likely that the alleged perpetrators would enter South Africa at some point, and it was reasonable to expect the SAPS to be able to gather evidence that could satisfy at least some of the elements of the crime of torture.

The Court also dismissed the SAPS argument that the decision should be remitted to the High Court, and that the SCA improperly subsituted its decision for that of SAPS. The Court found that the matter should be resolved urgently, and a significant delay, caused primarily to the “tardiness” of the National Prosecuting Authority and SAPS in dealing with the matter had already occured.  The Court therefore issued an order that the decision by the National Commissioner of SAPS to decline to investigate the complaints of crimes against humanity be set aside, and that the SAPS must investigate the complaint.

The SAPS was also ordered to pay the costs of SALC and ZEF in the High Court, SCA and Constitutional Court

Download the judgment here.