A Pretoria High Court judge questioned what recourse the victims of crimes against humanity in Zimbabwe had, if the South African police and the National Prosecuting Authority refused to investigate and prosecute the perpetrators.
The National Prosecuting Authority (NPA) failed in its duty to investigate and prosecute crimes against humanity committed in Zimbabwe, and former head of the NPA Mokotedi Mpshe “unlawfully passed the buck” in this regard.
This was the argument of advocate Wim Trengove SC in the Pretoria High Court application by the Southern African Human Rights Litigation Centre Trust (Salc) and the Zimbabwe Exiles’ Forum (ZEF).
They are asking Judge Hans Fabricius to review and set aside the decision by the NPA and the SAPS not to investigate Zimbabwean officials allegedly linked to acts of torture.
The application stems from an event in March 2007 when the Zimbabwean police, under orders of the ruling Zanu-PF, raided the headquarters of the opposition Movement for Democratic Change (MDC).
More than 100 people were arrested and taken into custody at the time and detained for several days.
It is claimed they were severely tortured during that time.
In response to the raid, Salc compiled a dossier relating to the events which was handed to the NPA.
Salc felt that in light of the collapse of the rule of law in Zimbabwe and because SA was legally required to investigate war crimes and crimes against humanity – regardless of whether or not these atrocities were committed in SA – those people responsible should be held accountable.
The dossier was handed to the head of the NPA’s Priority Crimes Litigation Unit, advocate Anton Ackermann SC. It contained the names of the Zimbabwean officials responsible for the raid and torture as well as details of the incident.
Salc’s argument before court is based on the contention that SA is obliged, in terms of the Rome Statue of the International Criminal Court Act (ICC Act), to investigate these crimes.
It is based on the fact that SA is a party to the Rome Statute.
Although the NPA did ask the police to investigate, this request was refused and the matter was left there.
Trengove told the court on Tuesday that the NPA failed in its duty by refusing to investigate the matter.
“The case is not about the prosecutorial discretion of the NPA. We accept that a prosecuting authority can, for a number of reasons, decide not to prosecute. But we are not there yet. The State failed to investigate the matter,” he said.
Trengove said that after the police refused to investigate the matter, Mpshe should have referred the dossier to the Scorpions.
“He unlawfully passed the buck. It is now impossible to prosecute as there is no investigation.”
The advocate told the court that Mpshe was the NPA head at the time and thus the boss of the Scorpions.
He said the NPA had a formidable investigation unit under its noses with a lot of power to investigate. He questioned why this was not done.
Police commissioner Tim Williams at the time gave a number of reasons for refusing to investigate, which included that the SAPS did not have the power to investigate international crimes committed in Zimbabwe and that they did not have a duty to investigate these crimes, as they did not occur on SA soil.
Another reason forwarded was that any such investigation would negatively affect SA’s relations with the Zimbabwean government.
Trengove said these reasons did not hold water, as SA had a duty to investigate under the ICC Act, regardless of who the victims of the torture were.
Judge Fabricius remarked: “The victims in Zimbabwe have no voice there and the respondent’s (the NPA) argument is they have no voice here.”
Trengove said the excuse of the respondents was simply that they had no power to act, which they in fact did have.
The police and NPA are expected to deliver their arguments later this week.