Prosecutions boss Menzi Simelane, who has been placed on special leave, appears to be at the centre of an attempt to thwart the prosecution in South Africa of Zimbabwean government officials accused of torture.
The National Prosecuting Authority (NPA) has been accused of blocking police investigations into the claims of torture made by Zimbabwe opposition members against high-ranking officials of that country, who visit South Africa from time to time.
An affidavit by Anton Ackermann, a senior NPA member, singles out Simelane, the suspended director of public prosecutions, as being behind a campaign to stop Ackermann from telling the court how his bid to have the Zimbabwe officials investigated was stymied.
Simelane was placed on special leave by President Jacob Zuma in December after the Supreme Court of Appeal ruled that his appointment was “inconsistent with the Constitution and invalid”.
South Africa is obliged under the Rome Statute, which established the International Criminal Court, and is part of our domestic law, to enforce international criminal law domestically. This includes war crimes, torture, and crimes against humanity.
Crimes against humanity
The affidavit was lodged in the North Gauteng High Court in Pretoria late last week by Ackermann, head of the priority crimes litigation unit tasked with “managing and directing the investigation and prosecution of crimes”, especially crimes against humanity.
In the affidavit, Ackermann claims he was refused separate representation, frozen out of the drafting of affidavits and threatened with disciplinary action for holding views contrary to those of the NPA on why the South African Police Services (SAPS) refused to investigate the matter, which relates to an application brought by the Southern African Litigation Centre (SALC) and the Zimbabwean Exiles Forum.
The matter was due to be heard in the high court on Monday morning, but was postponed after Simelane appointed new counsel.
SALC is asking the high court to review and set aside an NPA and SAPS decision not to investigate Zimbabwean officials linked to acts of state-sanctioned torture following a police raid on the Harare headquarters of the Movement for Democratic Change in 2007.
According to Ackermann, he referred the matter to the SAPS for investigation in 2008. This was refused. In the affidavit, Ackermann states that he was unconvinced as to the reasons given by the police for not investigating and expressed concern that they had not even opened a docket or consulted the applicants on the matter.
Ackermann says that after the SAPS had formally notified the NPA in May 2009 that they would not investigate the matter, he had notified then acting-NDPP Mokotedi Mpshe that he “was not satisfied with the reasons advanced”.
He was then apparently blocked in his attempts to file papers to air his views in court as to why the matter should have been investigated.
‘My version of the facts’
Ackermann states in the affidavit that he “sought to be separately represented in this matter” since February 2010 when it became “clear to me that my version of the facts and the reasons for the decisions in this matter would differ from that of the NDPP”.
But he was then “refused separate representation” on “the basis that my version of events was irrelevant and inadmissible and later that it would be incorporated into the NDPP’s answering papers”.
In a January 2010 email from the NPA’s advocate, Chris Macadam, who is representing Simelane in the matter, Ackermann was notified that his views on the police decision were “inadmissible opinion” and that he had to “very carefully and seriously consider the implications” of his attempts to file a statement — as second respondent in the matter — at odds with the NPA’s position.
When the matter was raised with Simelane, the NDPP expressed the opinion in an email dated March 2010, that the “NDPP’s affidavit will have to cover all the issues that affect the NPA and its role in the matter” and that the issues raised by Ackermann “can and will be raised by the NDPP [Simelane] in his affidavit”.
However, what followed appears to be attempts to keep Ackermann, and his views, out of the court proceedings.
Ackermann states that he “was not kept abreast of developments in the matter” by the NPA, despite being a second respondent and that Simelane’s offer to meet and discuss the NPA’s submissions before the filing of papers never transpired.
Ackermann’s proposed counsel for separate representation, NPA prosecutor Shaun Abrahams, was also refused access to Simelane’s record with Macadam citing privilege on the matter.
In exasperation, it seems, Ackermann sought independent counsel outside of the NPA and filed his affidavit on Thursday last week.
On Monday the case was postponed until Tuesday morning, after the NPA’s counsel decided that Macadam, who is mentioned extensively in Ackermann’s affidavit, would present arguments concerning all facts unrelated to himself.