National Commissioner of the South Africa Police Service and Another v Southern Africa Litigation Centre and Another (485/2012)  ZASCA 168 (27 November 2013)
The South African Supreme Court of Appeal (SCA) held that, in terms of the Implementation of the Rome Statute of the International Criminal Court Act 22 of 2002 (ICC Act), the South African Police Service (SAPS) is competent and required to investigate acts of torture that constitute a crime against humanity, committed in Zimbabwe by Zimbabweans.
A detailed dossier was submitted by the Southern Africa Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) in March 2008, to the Priority Crimes Litigation Unit (PCLU), a specialist unit within the National Prosecuting Authority (NPA) responsible for the investigation and prosecution of international crimes in South Africa. The dossier chronicled events that occurred in March 2007 when Zimbabwean police raided the headquarters of opposition party, Movement for Democratic Change (MDC), and detained and allegedly tortured members of the party. The dossier made the case that torture was committed in a widespread and systematic fashion in Zimbabwe against suspected political opponents of ruling party, Zimbabwe African National Union-Patriotic Front (ZANU-PF), making it a crime against humanity. The dossier contained evidence from victims corroborated by medical practitioners, medical records, and witnesses. It implicated high ranking officials by virtue of the doctrine of command responsibility and indicated that they travel to South Africa on a regular basis and hence could be subjects of investigation and possibly prosecution.
SALC requested that the NPA and the SAPS adhere to obligations in terms of the ICC Act by launching an investigation into the contents of the dossier. The NPA and SAPS refused to initiate an investigation citing: insufficient evidence, lack of jurisdiction, and reluctance to run the risk of damaging South Africa’s relationship with Zimbabwe, as reasons for refusing to initiate an investigation.
SALC and ZEF sought judicial review of the decision not to initiate an investigation. The matter was heard in the North Gauteng High Court in Pretoria. In May 2012, the High Court handed down judgment in SALC’s favour and set aside the decision made by the NPA and the SAPS to not initiate an investigation. They further declared that the decision was in violation of the South African authorities’ domestic and international legal obligations, and therefore unlawful and unconstitutional. However, the SAPS took the matter further and were granted leave to appeal by SCA. The matter was heard on 1 November 2013.
The SCA was tasked with deciding whether the interpretation of sections 4(1) and 4(3) of the ICC Act read with South Africa’s constitutional and international law obligations, confers jurisdiction to 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.
SALC and ZEF submitted that because section 4(3) refers to “the jurisdiction of a South African court” it refers only to the prosecution phase of the proceedings and therefore has no bearing on determining whether the SAPS are competent to investigate international crimes. They further submitted that whilst jurisdiction to prosecute international crimes lies in section 4(3), the jurisdiction to investigate such crimes is derived from: section 4(1) of the ICC Act, the South African Constitution 108 of 1996, the National Prosecuting Authority Act 32 of 1998, and the South African Police Service Act 68 of 1995.
The NPA and SAPS argued that they are only permitted to investigate international crimes whilst the suspect is present in South Africa, or if one of the other requirements stipulated in 4(3) is satisfied. They also submitted that section 4(3) is the only provision that gives them jurisdiction to investigate international crimes, hence the territorial restrictions set out in 4(3) apply to every phase of the prosecution process including the investigations.
Using international law, domestic South Africa law and with reference to foreign jurisprudence, the SCA ruled in SALC’s favour and declared that the SAPS is competent to investigate the dossier and further ordered that they initiate an investigation into these allegations of torture. As submitted by SALC, investigations will be conducted in South Africa.
This is an extremely important judgment as it is the first case to give content and substance to the provisions of the South African ICC Act. This case has set a new legal precedent and has prevented South Africa from becoming a safe haven for suspected perpetrators. The case is also an indication of what can be achieved through the domestication of ICC legislation.
Angela Mudukuti is International Criminal Justice Project Lawyer at the Southern Africa Litigation Centre