Day three got underway with Macadam for the National Director of Public Prosecutions (NDPP) resuming his argument. He seemed intent on indicating to the judge that any investigation of our dossier going forward would fall within the mandate of the Hawks, located within the South African police (SAPS). This approach, at least on our reading, seemed positive — as if he were anticipating an order from the judge for a reconsideration of the decision, and how this would happen.
Less salutary was the overview provided of international law (but then this is a specialised field) — with Macadam suggesting that the UN Security Council had referred Somalia to the ICC (it was, of course, Sudan) and that it was the conflict in Kosovo that had triggered the establishment of the Yugoslav Tribunal and indictments of Karadzic and Mladic (when of course the ICTY was long in existence when the conflict in Kosovo happened). If I were going to make a snarky comment it would be that this misrepresentation of the different international tribunals is no surprise given that the NDPP and his counsel appear to have fundamentally misunderstood the nature of the international obligations that weighed on them in this case.
The judge was certainly more interventionist than he had been during the course of Trengove’s arguments, asking Macadam the following, among other, questions: “Why cast aspersions on the bona fides of SALC?”; “How can you say that the applicants’s dossier ‘merely’ contained affidavits of persons who testified to being tortured?” And, in response to submissions from Macadam to the effect that it was hard to judge the credibility of organisations making claims as to the crisis in Zimbabwe, “Are the statements made through the years by organisations like the South African General Council of the Bar expressing disquiet and disgust at the breakdown in the rule of law in Zimbabwe, the sentiments of disreputable organisations?”
Macadam did not press the costs argument, made in his papers, conceding that the applicants raised valid constitutional points. That was not the case for his colleague, Ferreira SC who insisted that there is a single issue cutting through the entire case and that renders it an exercise in futility: that is that SA courts, on his argument, have no jurisdiction to hear the crimes as documented in the dossier. He insisted that no investigation can be undertaken unless the suspects are present in SA territory for the duration, contesting the applicants’ submission that anticipated presence is sufficient, with courts satisfying their jurisdiction to prosecute once the suspects have entered SA.
In response to a question from the judge, Ferreira was adamant: while the victims of torture in Zimbabwe have rights, these are not enforceable — anywhere. ‘”They can try Zimbabwe or the ICC. But our courts, our police cannot assist.” Ferreira also pressed the political sensitivities that would have been triggered had SA proceeded to investigate, earning the admonishment from the judge that “this is not your strongest point.” He also insisted on costs against the applicants. The judge, in response, asked whether he is a philosopher, to which Ferreira said; “I can’t predict the future.” Not deterred, the judge quoted Immanuel Kant, and asked whether this application is not a value unto itself and that a costs order should be waived. Ferreira it seems is not a fan of Kant and is not desuaded from pursuing costs.
Just before lunch, Gilbert Marcus SC started his reply for the applicants. He argued that at no point prior to the launching of the application, did the National Prosecuting Authority suggest that SALC had handed its dossier to the wrong authority. In fact, the NPA engaged with SALC and gave the impression that the dossier was being dealt with. It is not entitled to come to court now and say essentially: “oops, you handed it to the PCLU when you should have handed it to the Scorpions (that is when respondents aren’t arguing that the Scorpions couldn’t investigate in 2008 because there was already a draft bill providing for their disbandment).” If this were, actually, the position, respondents infringed s 195 of the Constitution which sets out the basic principles governing public administration in not assisting applicants access the correct authorities.
Marcus also pointed the court’s attention to the fatal concession made by the NPA and contained in the affidavit of Mpshe where he admits that in making the decision to agree with the police’s reasons not to initiate an investigation he did not consider the ICC treaty or SA’s own Act. Addressing the issue of political considerations, he submitted that these can never be a factor for three reasons: that the NDPP and SAPS are established as independent institutions and if this means anything it means absence of interference; at least at the stage of a request for investigation such factors are clearly irrelevant; and SA’s ICC Act gives the strongest indication that such considerations are immaterial.
Marcus’ conclusions as to the NDPP’s submissions were that the NDPP had thwarted every attempt at investigation and by their own admission taken into account political considerations and did not consider SA’s ICC Act.
As for Ferreira’s arguments, Marcus sought to demonstrate the absurdity of the point on jurisdiction with the illustration that on the respondent’s version, if suspect x accused of war crimes, entered SA’s territory, SA police would have jurisdiction; as soon as suspect x left the territory the police would lose their jurisdiction; if suspect x entered again the police might resume their investigations. He also submitted that the respondents arguments as to standing were not supported by a single legal authority.
Applicants still await the response to the affidavit of the PCLU’s Anton Ackermann.