On 19 May 2014 the South African Constitutional Court heard oral argument in the National Commissioner of the South African Police Service v Southern Africa Litigation Centre and another. The South African Police Service (SAPS) had appealed the decision handed down by the Supreme Court of Appeal (SCA) in November 2013, in which the SCA ordered that SAPS were both empowered and required to investigate the crimes against humanity allegedly committed in Zimbabwe in 2007, as detailed in the dossier prepared by SALC and Zimbabwean Exiles Forum (ZEF).
SALC was present in Court tweeting live updates and prepared a Court Diary of proceedings.
The argument in this Court was centred around whether SAPS has the power to investigate international crimes committed outside South Africa if the suspect is not present within South Africa’s territory. The question of presence arises because it is accepted that a prosecution cannot be commenced without the physical presence of the suspect in the country, and so the Constitutional Court has been asked to determine whether the link between investigations and prosecutions is so close that the same territorial restrictions apply to investigations. If SAPS has the power, then the next question is whether there is a duty to investigate, and whether the SCA was correct in ordering an investigation.
Representing SAPS, Adv Jeremy Gauntlett SC argued three main points: that SAPS simply did not have the power to investigate crimes committed outside the country unless the suspects were present in South Africa; and that, even if SAPS did have the power, they should not be expected to do so in this case as there is no duty to investigate; and finally that it would be against the separation of powers doctrine for the Court to order an investigation.
Deputy Chief Justice Moseneke questioned Gauntlett about the practicality of requiring physical presence in South Africa before an investigation could be initiated. Moseneke DCJ went on to raise that it would be problematic to simply arrest suspected perpetrators when they are present in South Africa if the necessary investigations had not been done prior to the arrest. Madlanga J also raised concerns about the practicality of the SAPS argument saying that it would require the police to quickly investigate allegations while a suspect was in the country, and then stop as soon as they leave the country.
Gauntlett maintained that it was impossible to separate investigations from prosecution and so the requirement of presence for prosecutions in the ICC Act applies equally to investigations. In response, Moseneke DCJ said that it is possible to separate the two as investigations do not always lead to prosecutions.
Moseneke DCJ also commented that having the power to investigate does not mean that all cases must be investigated, and that the police retain a discretion regarding which cases to investigate. This then turns on whether there is a duty to investigate cases and led to Gauntlett’s second argument that SAPS did not have a duty to investigate these allegations. Gauntlett further stated that it would be incorrect for a court to order investigations as this would be a violation of the separation of powers doctrine resulting in a usurpation of SAPS’s authority.
Adv Wim Trengove SC then presented SALC and ZEF’s arguments. He responded to the SAPS assertion that the ICC Act does not confer any jurisdiction on South African authorities to investigate crimes by clarifying that it is legislation designed to criminalise conduct and that in this case, the power to investigate crimes comes from the Constitution and SAPS Act. He also said that the notion that SAPS has to be specially empowered to investigate crime outside our borders was unfounded. Adv Trengove stated that the argument that a suspect would have to be present in South Africa before investigation could commence was absurd, and that it was impossible to reach the conclusion that there should be no investigation on the basis that it could not lead to a prosecution without actually undertaking some form of investigation.
Moseneke DCJ and Zondo J questioned Adv Trengove on the discretion police officers have in deciding whether or not to investigate crimes. Zondo commented that the nature of a discretion means that different police officers may come to different conclusions. Trengove agreed, but said that the facts in this case are such that no police officer could have believed that an investigation was not necessary.
Max du Plessis, acting for SALC and ZEF, then set out the nature of the duty to investigate under international law. He stated that crimes against humanity are amongst the most serious crimes and that in circumstances involving these crimes the discretion of whether to investigate or not is very narrow. He described the complementarity principle in the Rome Statute (the statute of the International Criminal Court), and explained that it places the primary responsibility to prosecute international crimes on domestic courts.
Chief Justice Mogoeng asked du Plessis whether the fact that Zimbabwe is not a party to the Rome Statute affected this case at all. Du Plessis indicated that this does not affect the matter at all as it has nothing to do with South Africa’s obligations in terms of domestic legislation. He said that states that have not ratified the Rome Statute are not subject to the ICC’s jurisdiction, but are subject to individual states’ exercise of jurisdiction over international crimes.
There were four amici curiae applications and each was given 20 minutes to address the Court. Adv Anton Katz SC represented Professor John Dugard et al and said that there was nothing in international law that prohibited investigations without physical presence in the territory of the investigating country.
The Tides Centre, an American based non-governmental organisation, was represented by Adv Susannah Cowen, who argued that this case has focussed on “voluntary presence” but that presence in South Africa can also be “coerced” through extradition. She stated that when determining the likelihood of a prosecution SAPS should be aware that presence for prosecution can be secured through extradition.
Adv Nadine Fourie, representing the Peace and Justice Initiative, which is a Netherlands based network of international law professionals, discussed the purpose of investigations and said that allegations of crimes are not investigated solely to collect evidence for a prosecution, but also to determine whether a crime was committed or not. She also argued that the “prosecutability” of a case is for the National Prosecuting Authority to decide, and so should not be a factor for SAPS to consider when deciding whether or not to initiate an investigation.
The Centre for Applied Legal Studies (CALS) was represented by Adv Jason Brickhill. Their arguments were based predominately on regional law, and Adv Brickhill highlighted that the African Union Model Law on Universal Jurisdiction explicitly states that presence is only a requirement for prosecution. He also said that the web of obligations SADC countries have assumed in respect of international criminal law indicates a general commitment to cooperate in the prosecution of international crimes.
Following amici curiae submissions closing arguments were heard. The replying arguments by Gauntlett and Trengove were dominated by questions from the bench on the possible remedy and costs orders. In his closing argument, Adv Gauntlett said that the key error the SCA made was in assuming that a duty to investigate flowed necessarily from the power to do so. He said that even when there is power to investigate, the duty only arises when there is a viable prospect of a prosecution. The crucial point of discussion from the SCA decision was that it had ordered an investigation to commence, and the Constitutional Court demonstrated some concern that such an order could usurp the authority of SAPS.
Gauntlett said that the SCA was wrong to order that the SAPS initiate an investigation, and argued that the Court should instead have remitted the decision back to the SAPS. However, SALC’s position (repeated by du Plessis in his argument) is that a Court can instruct SAPS to investigate but not dictate how that investigation should proceed.
Mogoeng CJ reserved judgment and adjourned the Court.
In summary, the Court will have to establish whether SAPS has the power to investigate crimes committed outside South Africa whilst the suspect is not present in South Africa, and if so, is there a duty to investigate in this case. After that, the Court will have to decide whether a court of law is competent to order investigation or whether that is a decision best left in the hands of SAPS.
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