On Friday 1 November the Supreme Court of Appeal (SCA) in Bloemfontein will hear oral argument in the application for leave to appeal in SALC and another v NDPP and others. Should the SCA grant leave to appeal the court will then hear argument on the merits of the appeal.
What is this case about?
The events that sparked this litigation were a raid on the Movement for Democratic Change headquarters and the state-sponsored torture committed by high-ranking Zimbabwe officials in the aftermath of that raid. SALC compiled a dossier of evidence which demonstrated that this torture formed part of a systematic and widespread campaign, and therefore amounted to a crime against humanity. The dossier was submitted to the Priority Crimes Litigation Unit (PCLU) in the National Prosecuting Authority (NPA), the unit tasked with investigating and prosecuting the three international crimes: crimes against humanity; genocide; and war crimes.
After the NPA and the South African Police Service (SAPS) informed SALC that they had decided not to initiate an investigation, SALC and the Zimbabwe Exiles Forum (ZEF) launched legal proceedings seeking a judicial review of that decision.
In May 2012 the North Gauteng High Court set aside the decision of the NPA and SAPS to not initiate an investigation, and declared that the decision was in violation of the South African authorities’ domestic and international legal obligations, and therefore unlawful and unconstitutional. The judgment can be found here.
The NPA and SAPS brought an application for leave to appeal which was refused by the North Gauteng High Court in June 2012, and the authorities then petitioned the SCA. The SCA referred the application for oral argument, and directed that should leave to appeal be granted it will then hear argument on the merits of the case.
For more information on the background to the case please click here.
For an analysis of Judge Hans Fabricius’s judgment please click here.
The crimes against humanity occurred in Zimbabwe, and were committed by Zimbabweans against Zimbabweans so how did this case end up before South African courts?
It is the nature of the crimes committed that triggered the obligations placed on the NPA and SAPS. Torture committed as part of a systematic and widespread campaign is a crime against humanity – one of the three international crimes recognised in South Africa. As a signatory to the Rome Statute of the International Criminal Court South Africa has adopted domestic legislation, the Implementation of the Rome Statute of the International Criminal Court Act (the ICC Act), which obligates South Africa to prosecute crimes against humanity if the perpetrators are present within its territory.
If leave to appeal is granted what are the key issues to be determined at the SCA?
The issue on appeal is restricted to the interpretation of sections 4(1) and (3) of the ICC Act and whether or not the legislative framework, read with South Africa’s constitutional and international law obligations, confers jurisdiction on the NPA and SAPS to investigate international crimes when the suspects are not physically present in South Africa.
Section 4(1) states: “Despite anything to the contrary in any other law in the Republic, any person who commits a[n international] crime, is guilty of an offence.”
Section 4(3) of the ICC Act states: “In order to secure the jurisdiction of a South African court for the purposes of this Chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if (a) that person is a South African citizen; or (b) that person is not a South African citizen but is ordinarily resident in the Republic; or (c) that person, after the commission of the crime, is present in the territory of the Republic; or (d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.”
The NPA and SAPS argue that section 4(3) is the only legislative provision that confers jurisdiction on them to investigate international crimes and that the territorial restrictions in section 4(3) apply to all aspects of the prosecution process – including the investigations. Their argument is that they are therefore only permitted to investigate international crimes whilst a suspect is present in South Africa, or one of the other stipulations in section 4(3) is present.
SALC and ZEF argue that as section 4(3) refers to “the jurisdiction of a South African court” it refers only to the prosecution stage of the process and is therefore not relevant to determining the competence of South African authorities to investigate international crimes.
SALC and ZEF argue that although the jurisdiction to prosecute international crimes is grounded in section 4(3), the jurisdiction to investigate these crimes originates in section 4(1) as well as provisions in the Constitution, the South African Police Services Act and the National Prosecuting Authority Act.
How can these different interpretations be explained?
The differences between the two interpretations can be explained by looking at the different kinds of jurisdiction. The NPA and SAPS have conflated the distinct types, which has led to a mistaken interpretation of the ICC Act’s jurisdictional provisions.
Prescriptive jurisdiction is the power to make laws. SALC argues that section 4(1) of the ICC Act is an example of an exercise of prescriptive jurisdiction as through this provision South Africa declared war crimes, genocide and crimes against humanity to be domestic crimes in South Africa.
Enforcement jurisdiction is the power to use measures to ensure that the rules made under prescriptive jurisdiction are followed. Investigations – including interviewing witnesses, searching individuals and property, issuing warrants of arrest, and arresting and detaining individuals – fall under this type of jurisdiction.
Adjudicative jurisdiction is the power of a state’s courts to resolve disputes and apply the law.
SALC and ZEF argue that when the ICC Act is interpreted in light of these distinctions section 4(3) must be seen as conferring only adjudicative jurisdiction and so only conditioning the prosecution of international criminals on their physical presence in South Africa.
Enforcement jurisdiction is conferred by a variety of other legislative provisions in the Constitution, the South African Police Services Act and the National Prosecuting Authority Act, which all confer power on the NPA and SAPS to investigate crime. The ICC Act, in section 4(1), has made crimes against humanity a crime under South African law – and so the commission of a crime against humanity triggers all these legislative obligations to investigate crime.
Why is the interpretation so important?
SALC and ZEF have always maintained that the interpretation of the ICC Act that the NPA and SAPS have advanced would render the ICC Act unworkable and hamper the achievement of the purpose of the Act to uphold the country’s obligations to investigate and prosecute international crimes.
This is because requiring the presence of the suspect in South Africa both for the initiation and duration of any investigation would mean that investigations would have to be suspended any time the suspect left the country. As SALC and ZEF argued, and the High Court recognised, this would lead to absurd results and this cumbersome system could not have been the intention of the legislature when enacting the ICC Act.
The ICC Act is an immensely important piece of legislation as it gives effect to South Africa’s obligations to ensure that the impunity enjoyed by so many perpetrators of international crimes is ended. It is therefore vital that the legislation be implemented in a way that best gives effect to those obligations.
What outcomes are SALC and ZEF seeking?
SALC and ZEF have asked the SCA to find that the ICC Act obligates South African authorities to investigate international crimes irrespective of whether or not the suspects are physically present in South Africa. SALC and ZEF ask that the SCA confirm the High Court’s ruling that the decision taken to not investigate the torture was unlawful and unconstitutional and order that the NPA and SAPS reconsider the decision.
The Heads of Argument and judgment from the High Court, as well as the Heads of Argument for the appeal hearing can be found on th case page on SALC’s website, here.