National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another [2015] 1 SA 315 (Constitutional Court) (30 October 2014)

The Constitutional Court of South Africa (‘Court’) has found that the South African Police Service (‘SAPS’) is permitted under international law and has a duty under domestic law to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals, despite none of the suspects being present in South Africa.

The decision sets aside and replaces an order of the South African Supreme Court of Appeal (hearing an appeal from the North Gauteng High Court, Pretoria). A summary of the lower court judgment is available here.

Facts

In 2008, the first respondent – a non-government organisation involved in human rights and public interest litigation – delivered a dossier to South African law enforcement authorities containing substantial evidence of incidents of alleged torture by Zimbabwean police in March 2007.

The alleged victims were Zimbabwean nationals involved with or supporting the main opposition party in Zimbabwe. The police, allegedly acting at the direction of the ruling party, raided the headquarters of the main opposition party and detained more than 100 people. Seventeen victims attested to being tortured whilst in police custody. The alleged torture included beating, waterboarding, forced removal of clothing, electric shocks and mock executions.

After being informed that the SAPS did not intend to investigate, the respondents commenced proceedings in the North Gauteng High Court, Pretoria. The High Court found, like the Supreme Court of Appeal after it, that, under the International Criminal Court Act (which incorporates the Rome Statute into South African law) (‘ICC Act’), the South African Police Service Act and the South African Constitution (‘Constitution’), the decision of the SAPS must be set aside.

The question before the Constitutional Court was whether the SAPS has a duty to investigate crimes against humanity committed beyond South Africa’s borders (namely, in Zimbabwe) and, if so, under what circumstances that duty is triggered.

Decision

The Court began by considering whether there is jurisdiction under international law for the investigation. The Court observed that, subject to three limitations discussed below, the exercise of universal jurisdiction is supported in international law.

The Court then referred to provisions of the Constitution and ICC Act and found that South Africa is not only empowered but under a duty, where appropriate, to exercise universal jurisdiction to investigate international crimes in relation to torture. In particular, the Court referred to section 205(3) of the Constitution, which provides: “The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The Court then referred to three important limitations on the exercise of the universal jurisdiction to investigate international crimes:

• (principle of solidarity) ordinarily, a substantial and true connection between the subject matter and the source of the jurisdiction is required;
• (principle of non-intervention) investigating international crimes committed in other states is permissible only if the state with jurisdiction is not willing or able to prosecute and only if the investigation is confined to the territory of the investigating state; and
• (practicability) it must be reasonable and practicable in the circumstances of the particular case for the state to investigate.

The Court found that a substantial connection existed in the present case due to the international and heinous nature of torture. Given the high profile suspects, it was very unlikely the Zimbabwean police would have pursued a proper investigation. And it was reasonable and practicable for South Africa to investigate in the circumstances as torture is a crime in South Africa under domestic law and due to its status as a peremptory norm of customary international law. Any inadequacies in the dossier and any follow-up investigation required must form part of the investigation by the SAPS. The Court found that, provided the investigation is confined within the South African territory, the investigation could be undertaken consistently with the principles of universal jurisdiction.

The Court also found that the investigation of an international crime may occur where the suspect is not present nor anticipated to be present in South Africa. Presence of a suspect is merely a factor that needs to be balanced in determining the practicability of an investigation.

Due to the lengthy delay that had already taken place, the Court declined to remit the matter to the High Court, instead ordering that the South African Police Service investigate the torture allegations.

Commentary

This case has far reaching consequences that extend beyond the Zimbabwean victims involved in the case. If other states are unwilling or unable to investigate international crimes, and it is reasonable and practicable for South Africa to do so, the victims of those crimes may be able to request assistance from South Africa’s investigating authorities.

The preamble to the Rome Statute provides that “the States Parties [are] … [d]etermined to put an end to impunity for the perpetrators of [grave] crimes and thus to contribute to the prevention of such crimes”. It recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” This decision provides an excellent example of how the Rome Statute can be domesticated into law to require states to fulfil these duties.

It is also significant that the Court rejected the relevance of any potential harm to political relations between South Africa and Zimbabwe to the decision whether or not to investigate. The Court held that this would undermine the very cornerstone of the universality principle and the Rome Statute, which is to hold torturers accountable for their crimes regardless of where those crimes are committed and where the perpetrators are domiciled.

The full text of the decision can be found here.

Emma Newnham is a Solicitor at King & Wood Mallesons currently on secondment to the HRLC.