A Supreme Court of Appeal ruling compelling SA authorities to probe alleged crimes against humanity in Zimbabwe, is being challenged in the Concourt.
The Constitutional Court on Monday heard arguments by the South African Police Service (SAPS) asking it to overturn a Supreme Court of Appeal ruling that compelled South African authorities to investigate alleged crimes against humanity which occurred in Zimbabwe.
The court’s decision could provide “practical content” to South Africa’s domestic and international obligations in terms of prosecuting crimes committed in any country where these crimes occur, according to the initial applicants, the South African Litigation Centre and the Zimbabwean Exiles Forum, who opposed the SAPS’s appeal.
They also hope a judgment in their favour will provide a deterrent for perpetrators of crimes against humanity. This follows allegations, that Zimbabweans perceived to be linked to Zanu-PF’s political opposition, were tortured by government officials, in Zimbabwe, in 2007. In 2008, the victims asked the SAPS and the National Prosecuting Authority (NPA) to investigate the allegations, but both institutions declined.
Two courts agreed with the applicants, who appealed the SAPS and NPA’s decisions: the South African Litigation Centre and the Zimbabwe Exiles Forum submitted that domestic law, supplemented by international law, compelled the police to investigate the allegations.
But on Monday, the SAPS turned to the Constitutional Court, asking it to appeal a November 2013 Supreme Court of Appeal ruling that said South Africa had a duty to investigate the claims.
According to Lawyers for Human Rights, representing the applicants, the allegations of “state-sanctioned torture” followed a raid on the Movement for Democratic Change’s headquarters in 2007.
Although the names of the victims have been removed from the court documents for their security, the South African Litigation Centre said they were perceived to be political opponents of Mugabe’s regime.
A dossier containing evidence of the crimes was submitted to the SAPS and the National Prosecuting Authority, but they declined to investigate.
The South African Litigation Centre said South Africa’s international legal obligations compelled the authorities to investigate because the officials implicated in the dossier travelled to South Africa, regularly. But Jeremy Gauntlett SC, for the SAPS, argued on Monday that the Supreme Court of Appeal erred in finding that the police should investigate if an alleged accused person was not in the country.
The Supreme Court of Appeal found that the police were empowered to investigate the allegations regardless of whether the perpetrators were in the country, and that South Africa’s international legal obligations required it to instigate an investigation.
Judgment was reserved on Monday..