When Mogoeng Mogoeng was appointed chief justice, there was a deluge of criticism concerning both his suitability for the post and the direction in which he might take the Constitutional Court – towards a more deferential approach to the government.
But the court’s record over the past few years has not confirmed these concerns. On the contrary, the court’s most recent decision illustrates the difficulty of predicting judicial behaviour with such confidence.
The court was confronted with an application for the South African Police Service (SAPS) to investigate allegations of torture committed in Zimbabwe by and against Zimbabweans.
The argument hinged on South Africa’s duty under domestic and international law to challenge impunity enjoyed by perpetrators of international crimes committed by foreigners beyond the borders of South Africa.
The application was brought by the Southern African Human Rights litigation centre and was vigorously opposed by the national commissioner of police, who briefed one of the country’s best counsels, Jeremy Gauntlett SC, to argue its case.
The forensic battles were fought in two courts before the matter was heard by the Constitutional Court. The earlier decisions went against the commissioner.
The police argued, with some persuasiveness, that the court should not accept the principle of universal jurisdiction and thus could not order investigations of foreigners who were not in the country.
The court signalled its intent by commencing the unanimous judgment written by Justice Steven Majiedt with a quotation from Nelson Mandela before he became president. In 1993, Mandela wrote: “South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations.”
Majiedt then reminded us that South Africa was the first African state to domesticate the Rome Statute, which established the International Criminal Court.
With that decisive act, South African law included crimes against humanity in the statutory crimes covered by our national law. Furthermore, South Africa passed the Prevention and Combating of Torture of Persons Act in 2013; in this, all forms of torture were criminalised.
The court dismissed the argument that the perpetrators had to be in the country for the initiation of an investigation. As Majiedt observed, if a suspect was to enter the country for a short period, without any prior police investigation, it would not be practicable to initiate charges and prosecution. Any possible step towards a viable prosecution could only take place after a proper investigation.
Given that South African law contained a criminal prohibition of torture, not only were the police permitted under international law but were also obliged under domestic law to investigate high-priority crimes.
The court did qualify this wide-ranging finding. Investigating such crimes was only permissible if the country with jurisdiction (in this case Zimbabwe) was unwilling or unable to prosecute. In addition, the investigation could only take place in South Africa and could not range into other countries.
Applying these to the facts of the case, the court said that “it was very unlikely that the Zimbabwean police would have pursued the investigation with the necessary zeal in view of the high-profile personalities to be investigated”.
This was surely the judicial understatement of the year – six Cabinet ministers and directors general were implicated in the commission of these crimes.
The final leg of the case was about whether the police had acted reasonably in declining to investigate. Apart from the argument about investigating foreigners, the police contended that an investigation could harm relations between South Africa and Zimbabwe.
The court gave this short shrift. It held that this would undermine the very cornerstone of international criminal law: namely that torturers are the enemy of humankind, no matter where they reside. Thus political tensions are unavoidable if this body of law is to be vindicated.
Given these findings, the court concluded that by refusing to investigate the allegations, the SAPS had misconstrued its legal position, and that it had a clear legal duty to investigate the dossier of allegations compiled by the litigation centre. It ordered that an investigation be conducted by the police.
This is a magnificent judicial assertion of Mandela’s vision for South Africa, as translated into legislation. The court’s muscular assertion of a human rights vision is most welcome. It also confirms that the prediction of a turning to executive deference by the Mogoeng court has come up short.