Promoting Human Rights & Rule of Law in South Africa
3 November, 2014
The SAPS said on Thursday it will comply with the Constitutional Court’s order to investigate claims of torture against senior Zimbabwean officials.
“In principle, this is the end of the matter. We are required to comply with the judgment,” national police spokesman Lt-Gen Solomon Makgale said.
“We only got the judgment today. Our legal team is looking at it.”
In a unanimous judgment, delivered by acting Justice Stevan (SUBS: CORRECT) Majiedt, the court concluded that the SAPS must investigate the claims because it had a duty to do so, under the Constitution, the ICC Act, and South Africa’s international law obligation.
The Southern Africa Litigation Centre (SALC), who initially brought the case with the Zimbabwean Exiles Forum (Zef) in 2008, said on Thursday South Africa’s highest court had set an important precedent.
“South Africa will not be a safe haven for perpetrators of the world’s worst crimes” SALC executive director Nicole Fritz said in a statement.
“The judgment represents a clear appreciation for the role of international criminal law and its importance to our domestic justice system.”
Zef chairman Gabriel Shumba said the forum was thrilled that victims of torture in Zimbabwe had some prospect of seeing justice served.
“But the case doesn’t just hold out promise for victims of torture in Zimbabwe,” Shumba said.
“Should it be reasonable and practicable for South African authorities to investigate international crimes committed elsewhere — for instance, the Democratic Republic of Congo — potentially the victims of those crimes might approach South Africa’s investigating authorities for assistance.”
Lawyers for Human Rights (LHR), who represented the two organisations, welcomed the judgment.
“We are quite happy that the Constitutional Court has come out so strongly in favour of full implementation of South Africa’s Rome Statute Act,” LHR co-ordinator David Cote said in a statement.
“Universal jurisdiction against the most abominable crimes is a world-wide movement and an important step against impunity.”
South Africa is party to the International Criminal Court’s (ICC) Rome Statute. It enacted the Implementation of the Rome Statute of the International Criminal Court Act (the ICC Act) in 2002.
The Constitutional Court held on Thursday that the SAPS had a duty to investigate international crimes. This was limited to instances where the country in which the crimes happened was unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable.
The court found no evidence that Zimbabwean authorities were willing or able to pursue an investigation and that it would be reasonable and practicable for the SAPS to investigate the complaint, because of the proximity between South Africa and Zimbabwe.
It said there was a likelihood the accused would be in South Africa at some point. There was a reasonable possibility that the SAPS would be able to gather evidence that may satisfy the elements of the crime of torture.
The court held that while the principle of non-intervention in another state’s territory had to observed, this would not be violated by an investigation conducted exclusively within South Africa.
The case was first brought by SALC and Zef in 2008 following a police raid on the headquarters of the Movement for Democratic Change the year before.
They argued that South Africa had domestic and international legal obligations to investigate and prosecute high-level Zimbabwean officials accused of crimes against humanity.
The two bodies handed over a dossier of evidence to the National Prosecuting Authority (NPA) and the police, which allegedly pointed to state-sanctioned torture in Zimbabwe.
In 2012, the High Court in Pretoria held that South African authorities had not acted in accordance with their obligations, and that the decision not to probe the matter had been taken unlawfully and unconstitutionally.
The NPA and police appealed to the Supreme Court of Appeal (SCA) in November last year.
The SCA held that police, in particular, were empowered and required to investigate the crimes against humanity, as detailed in the dossier.
The national police commissioner then appealed to the Constitutional Court.
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