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SA accused of ‘abusing’ courts after fresh torture case appeal

SW Radio Africa

The South African authorities have been accused of abusing the country’s court processes, after filing another appeal against a landmark order to probe crimes against humanity committed in Zimbabwe.

Last year, the Supreme Court of Appeal upheld a court order from 2012 that compelled the prosecuting authorities in South Africa to investigate torture and other crimes perpetrated in Zimbabwe. This was after the police and National Prosecuting Authority (NPA) had appealed the original order handed down by the North Gauteng High Court, which said the authorities had a duty to probe allegations of torture as required by the Rome Statute.

The Statute is the foundation for the International Criminal Court and as a signatory, South Africa is committed to investigate and prosecute perpetrators of serious international crimes.

But the South African police have since filed another appeal, this time at the country’s Constitutional Court. In an application filed last week, the police state there “is at least a reasonable prospect” that the Constitutional Court could overturn the Supreme Court ruling, arguing that among other issues, an investigation would infringe on the sovereignty of Zimbabwe and damage diplomatic relations.

The case is being led by the Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) and was based on a dossier detailing a politically motivated attack on MDC members in Zimbabwe in 2007. This dossier, which implicates 18 high level ZANU PF members, was handed to the NPA in 2008 but the prosecuting body and the police decided not to take the case further.

ZEF Director Gabriel Shumba told SW Radio Africa on Wednesday that the latest appeal is “without merit,” and the ZEF and SALC “will vigorously oppose the appeal.”

“Two other courts have already made pronouncements of the law. And the reasons given for the appeal have been received with the contempt they deserve. We are not talking about South Africa investigating a country, but investigating internationally recognised crimes,” Shumba said.

He added: “We basing our arguments for prosecution in terms of South Africa’s own domestication of the Rome Statute. It has made the Statute part of its own laws and it is those laws we basing our arguments on.”

Shumba also expressed concern about the appeal potentially infringing on the independence of the judiciary in South Africa.

“This (appeal) sounds like an attempt to frustrate the clear pronouncement from the courts and make this a frivolous matter. And to bring such action is an attempt to become frivolous in the face of a serious indictment on the part of the Zimbabwean authorities,” Shumba said.

The ZEF and SALC have until January 20th to file their opposing papers before the case is set down for hearing at the Constitutional Court.




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