THERE was no duty on the South African Police Service (SAPS) to open an investigation into allegations of torture by Zimbabwean officials in Zimbabwe because none of the perpetrators was present in SA.
This is according to the counsel for the SAPS, Andre Ferreira SC.
The SAPS, the national director of public prosecutions and the Department of Justice are opposing the court bid by the Southern African Litigation Centre and the Zimbabwe Exiles Forum to review the state’s refusal to investigate complaints of torture committed by suspects in Zimbabwe. This is despite a duty to do so under the Implementation of the Rome Statute of the International Criminal Court Act.
The centre and the forum argued yesterday that as a signatory to the Rome Statute, SA had committed itself to investigate and prosecute perpetrators of serious international crimes, irrespective of where they took place.
The SAPS argue that an investigation could be initiated only once the perpetrator was in SA.
The North Gauteng High Court is expected to provide clarity on the country’s duties and obligations regarding the investigation and prosecution of perpetrators accused of committing crimes against humanity.
The court will also decide whether the local SAPS have the power to investigate such crimes if they were committed outside the country’s borders.
The state argued that it does not have jurisdiction to investigate crimes outside its borders, and that investigation of these crimes would affect the country’s relations with Zimbabwe.
It also argued there was insufficient evidence to warrant an investigation.
Mr Ferreira said the SAPS had the power to investigate Rome Statute crimes, but only when the perpetrator was in SA.
When Mr Ferreira began to argue that the SAPS investigation of Zimbabwean officials would affect SA’s foreign relations with Zimbabwe, Judge Hans Fabricius said “these are diplomatic niceties I am not interested in”.
In reply, counsel for the forum and centre Gilbert Marcus SC said the argument by Chris Macadam, counsel for the national director of public prosecutions, was unworthy of an organ of state. Mr Macadam said the report by the centre on allegations of torture was directed at the wrong person.
Mr Marcus said the head of the National Prosecution Authority’s (NPA’s) Priority Crimes Litigation Unit, Anton Ackermann, was a presidential appointee. “He was appointed to manage and direct the investigation and prosecution of crimes under the International Criminal Court Act.”
Mr Marcus said the NPA engaged with the centre and created the impression the dossier was being dealt with, only to come to the court and to be told the centre had handed the dossier to the wrong person.
Mr Marcus also said former acting national director of public prosecutions Mokotedi Mpshe made a fatal admission in his affidavit when he stated that he did not read the provisions of the Implementation of the Rome Statute of the International Criminal Court Act and the Rome Statute when he agreed with the SAPS reasons for refusing to launch an investigation.
“Mpshe adopted (acting police commissioner Tim) Williams’s reasons. These reasons are fatally flawed,” Mr Marcus said. He said what was known was Mr Mpshe had met the justice minister and was told the proposed investigation would have a negative effect on international relations. He said political considerations could never be a factor at an initial investigation stage.
“Mr Mpshe has told you: ‘I ignored the act and I ignored the treaty.’ This is not the case of Mr Mpshe misconstruing the act and the treaty. He could not have applied his mind.”
The case arose after the centre presented a docket to the NPA in March 2008 containing a number of affidavits in which 17 people attested to having been tortured in police custody in Zimbabwe. The centre also identified Zimbabwean officials responsible for the crime against humanity of torture and explained that these officials visited SA from time to time.
By December 2008, no formal response to the torture docket had been received. In June 2009 Mr Mpshe informed the centre he had been advised by Mr Williams that the SAPS did not intend to initiate the investigation.
On Monday, the matter took a dramatic turn when the centre applied to present the affidavit of Mr Ackermann, who was listed as a second respondent in the matter.
Mr Ackermann wanted to put his version of events.
In his affidavit, Mr Ackermann said he was not satisfied with the reasons advanced by the SAPS for refusing to initiate an investigation.
Mr Ackermann said he would have expected the SAPS to have at least opened a police docket and to have liaised with the centre.
The matter continues.