The Constitutional Court has ruled that the SAPS are obliged to investigate claims of torture committed in Zimbabwe.
The Constitutional Court in a landmark case ruled unanimously that the South African Police Service (SAPS) are obliged to investigate allegations of torture committed in Zimbabwe, which were reported to them.
In a judgment handed down on Thursday, the court held that “the SAPS had a duty to investigate crimes against humanity of torture allegedly committed in Zimbabwe…where the country in which the crimes occurred is unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable”.
This is the final ruling in a case that began in March 2008 when the Zimbabwean Exiles Forum (ZEF) and the Southern African Litigation Centre (SALC) handed over a dossier of evidence to the South African National Prosecuting Authority (NPA) and the police, which detailed alleged state sanctioned torture.
In 2007, a year before the national elections in Zimbabwe, the Zimbabwean police, allegedly acting on instructions from the ruling party, the Zimbabwe African National Union – Patriotic Front (ZANU-PF), raided Havest House in Harare; the headquarters of opposition party the Movement for Democratic Change.
During the raid, more than 100 people were taken into custody, including workers in near by shops and offices. These individuals were detained for several days and allegedly tortured by Zimbawean police.
Violated by investigation
The SALC handed over a file containing 23 sworn statements to the two investigative bodies in South Africa. The Supreme court of Appeal and an earlier high court both set aside a decision by the SAPS not to investigate the matter, with the SCA citing the Rome Statute of International Criminal Court.
On Thursday, the Constitutional Court found that there was no evidence to suggest that Zimbabwean authorities “were willing or able to pursue an investigation”, and the proximity of Zimbabwe made the investigation possible.
The judgment goes on to say that while principle of non-intervention in another’s state territory must be observed, this would not be violated by an investigation conducted exclusively within South Africa.
For its decision, it relied on the Constitution, the International Criminal Court Act and the South Africa’s international law obligations, it said.
The court ordered the SAPS to investigate the complaint.
- READ the appeal court judgment