THE North Gauteng High Court is to hear an application to compel SA to abide by its legal obligations to investigate and prosecute high-level Zimbabwean officials accused of crimes against humanity.
The case, which has been set down for hearing from March 26-30, is the first of its kind in SA.
The court would have the opportunity to provide guidance on the scope and nature of the obligations placed on SA by signing up to the Rome Statute of the International Criminal Court.
SA incorporated the statute into national law by passing the Implementation of the Rome Statute of the International Criminal Court Act of 2002. This means SA committed itself to prosecute perpetrators of serious international crimes, irrespective of where they took place.
In 2008, the Southern African Litigation Centre sent a detailed docket to the National Prosecuting Authority’s (NPA’s) Priority Crimes Litigation Unit, documenting acts of torture committed after the Zimbabwean police raid on the headquarters of the then opposition party, Movement for Democratic Change. The centre wanted SA to arrest the Zimbabwean officials identified in the docket because the act obliged the country to arrest and prosecute perpetrators of international crimes if they enter SA.
However, the NPA and the police refused, saying it was impossible or impractical to investigate crimes committed in Zimbabwe.
In December 2009, the centre asked the high court to review and set aside the refusal decision.
In his response filed in October 2010, national director of public prosecutions Menzi Simelane — currently on special leave — said the alleged offences were committed wholly in Zimbabwe by one group of Zimbabwean citizens on another. The centre had implicated not only serving members of the Zimbabwean police, but also cabinet members and heads of departments.
“The arrest in SA of Zimbabwean cabinet ministers and heads of department would also have a major effect on the functioning of a sensitive safety-and-security portfolio in that country and it is only to be expected that this would lead to a diplomatic rift between the two countries of significant proportions,” Mr Simelane said.
But the centre’s executive director, Nicole Fritz, said it had prepared its request in the knowledge that several of the perpetrators named often travelled to SA on official business. Moreover, many travelled to SA to obtain desired commodities and services, including healthcare.