SALC and the Zimbabwe Exiles Forum are thrilled to announce that the North Gauteng High Court ruled in SALC’s favour in the Zimbabwe Torture Case. Judge Hans Fabrius ruled that the National Prosecuting Authority (NPA) and the South African Police Service (SAPS) failed to take South Africa’s international criminal law obligations into account when they refused to initiate an investigation into crimes against humanity committed in Zimbabwe, despite SALC providing credible information in this regard. The NPA and SAPS must now revisit their initial decision in accordance with the detailed order of the Court.
The case, the first to be brought in terms of South Africa’s domestic International Criminal Court Act, provides substantive and practical content to South Africa’s Rome Statute obligations, obligations which the court found were ignored by South Africa’s prosecuting and investigating authorities in their initial refusal to investigate. The decision not only offers prospects of justice for those tortured in Zimbabwe but sends out a clear message that South Africa must and will investigate and prosecute perpetrators of international crimes regardless of where they are committed or by whom. It also demonstrates justice and the rule law can prevail over politics.
SALC would like to thank its phenomenal legal team, Advocates Wim Tregove SC, Gilbert Marcus SC and Max du Plessis; Laywers for Human Rights, Christopher Gevers of the University of Kwazulu-Natal and for numerous others for their unwavering support and encouragement.
SALC will share a detailed analysis of the judgment in the coming days. However the judgment and other relevant information is available here and for coverage of the case please visit the SALC newsroom.
Here is a taster of what Judge Fabricus had to say:
“Seen holistically therefore, all the mentioned provisions place an obligation on South Africa to comply with its obligations to investigate and prosecute, crimes against humanity within the ambit of the provisions of s4(3) of the ICC Act, and it is in the public interest that the State does so … [SALC and ZEF] certainly have the right, given their attributes, to request the state, in the present context, to comply with its international obligations on behalf of those who cannot do so, and who are the victims of crimes against humanity”
“Having regard to objects of that Act, there could be no doubt that the power incidental to or necessary for the achievement of the ICC Act’s purposes includes the power of the PCLU to engage in investigation particularly in the multi-disciplinary manner envisaged under the SAPS Act and the NPA Act. The First Respondent’s contention that the Rome Statute did not provide the Second Respondent or himself with any power to initiate an investigation was therefore materially flawed.It ignored the special status according to international crimes, and the need for special procedures to be developed and adopted, and it ignored the very clear terms of the SAPS Act that had to be read together with the ICC Act and which, as was said, required multidisciplinary approach.”
“The question ought to have been: Is there enough information to warrant an investigation in terms of the applicable law? The answer has to be, yes, and First Respondents have conceded that. Respondents had therefore laboured under an error of law in that context”
In my view it is clear that when an investigation under the ICC Act is requested, and a reasonable basis exists for doing an investigation, political considerations or diplomatic initiatives, are not relevant at that stage having regard to the purpose of the ICC Act
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