Brief Summary

Criminal Law — International Criminal Law — Investigation of crimes against humanity — South African Police Service's competence to investigate alleged crimes committed outside South Africa — Southern African Human Rights Litigation Centre and Zimbabwe Exiles Forum sought review of decision not to investigate allegations of torture by Zimbabwean officials — High Court ordered investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 — Appeal by National Commissioner of Police and National Director of Public Prosecutions dismissed, confirming obligation to investigate irrespective of perpetrators' presence in South Africa.

Comprehensive Summary

Summary of Judgment

Introduction

This was an appeal to the Supreme Court of Appeal against an order of the North Gauteng High Court, Pretoria (Fabricius J), in review proceedings concerning a decision by South African prosecuting and policing authorities not to initiate an investigation into alleged crimes against humanity (torture) said to have been committed in Zimbabwe.

The appellants were the National Commissioner of the South African Police Service and the National Director of Public Prosecutions. The respondents were the Southern African Human Rights Litigation Centre (SALC) and the Zimbabwe Exiles Forum (ZEF). The Tides Centre participated as amicus curiae, largely supporting the respondents’ position.

The procedural history began with a detailed memorandum and supporting material (a “docket”) delivered by SALC to the National Prosecuting Authority structures in March 2008 requesting an investigation (and ultimately prosecution) in South Africa of named Zimbabwean officials for torture as a crime against humanity. After interactions between the NPA and SAPS, the complainants were informed on or about 19 June 2009 that SAPS did not intend to investigate. SALC and ZEF then launched review proceedings in December 2009. The High Court reviewed and set aside the refusal decision and issued an extensive supervisory and operational order regulating investigation steps. Leave to appeal was refused by the High Court, but the matter came before the SCA on a petition for leave, which was referred to oral argument; the SCA heard the appeal on the basis that leave would be granted.

The dispute concerned the scope of South African investigative powers and obligations under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act), read with the constitutional and statutory powers of SAPS and the NPA, where the alleged international crimes were committed outside South Africa by non-South Africans against non-South Africans, and where the alleged perpetrators were not shown to be present in South Africa at the time.

Material Facts

On 16 March 2008, SALC delivered to the relevant NPA structure (the Head of the Priority Crimes Litigation Unit at the time) a detailed memorandum, supported by witness affidavits and related materials, alleging that named Zimbabwean police officials (described as members of a “law and order unit”) had committed acts of torture against Zimbabwean nationals in Zimbabwe. The allegations were presented as conduct knowingly perpetrated on a widespread or systematic basis, said to be directed mainly at members or perceived supporters of an opposition political party, and linked to events following a raid on the opposition headquarters. The memorandum further contended that higher-level officials, including senior officers and certain ministers/heads of department, were implicated through command responsibility.

It was common cause that the complainants’ request was, in substance, for South African authorities to investigate the alleged conduct under the domestic implementation of the Rome Statute framework. It was also common cause that the alleged conduct—if established—fell within the ICC Act’s definition and schedule of crimes against humanity, specifically torture.

A substantial part of the factual controversy before the authorities related not to whether the allegations, if true, would constitute an offence, but rather to the adequacy and usability of the material provided by SALC for what SAPS witnesses described as a “court-directed investigation.” SAPS officials criticised the statements as insufficiently verified, vague in certain respects, and not adequate to sustain prosecution without further investigation, and asserted that a full reinvestigation would be required. They also raised concerns about the practical difficulty of conducting necessary investigative steps, given that most relevant events and witnesses were in Zimbabwe, and about sovereignty and co-operation constraints.

There was also a factual dispute about whether SALC had placed identifying information in the public domain. The Commissioner asserted that SALC had released material to the media allowing identification of suspects, potentially compromising victims, witnesses, and the investigation; SALC denied the allegation, although the judgment recorded that at least some material facts from the docket appeared to have been released and described such conduct as undesirable.

On the question of suspect travel to South Africa, SAPS evidence (based on immigration database checks) suggested that several alleged perpetrators had never visited South Africa and others had visited only infrequently, while the respondents’ materials asserted that alleged perpetrators had visited South Africa on official and personal visits in the months after the events. The SCA treated the SAPS checks as not excluding the possibility of future visits and as an aspect that could be pursued further through investigation.

On 19 June 2009, after interactions between NPA and SAPS leadership, the Acting NDPP informed SALC that he had been advised that SAPS did not intend to initiate an investigation. The refusal was defended primarily on the basis that the docket fell short of what was required, that legitimate investigation would require steps in Zimbabwe implicating sovereignty and requiring co-operation, that the complainants could not be used to gather evidence on SAPS’s behalf, and that an investigation could negatively affect co-operation and international relations.

Legal Issues

The central legal questions were whether, on a proper interpretation of the ICC Act and the constitutional/statutory framework governing SAPS and the NPA, the South African authorities were empowered to investigate alleged crimes against humanity committed outside South Africa and, if so, whether they were required (in the circumstances of this case) to initiate such an investigation.

The dispute primarily concerned questions of law and the application of law to fact. It required (i) interpretation of section 4 of the ICC Act, particularly whether the “presence” connecting factor in section 4(3)(c) was a prerequisite for investigation (as opposed to prosecution/adjudication), (ii) identification of where investigative competence lies within the South African legal framework (Constitution section 205, SAPS Act provisions including the priority crimes structures, and the NPA Act mechanisms), and (iii) evaluation of whether the authorities’ refusal decision was sustainable given the legislative purpose, international obligations reflected in the ICC Act, and the practical considerations raised by SAPS and the NDPP.

A further issue concerned the appropriate form of relief: the SCA had to consider whether the High Court’s order, which included detailed operational directions about investigation and witness attendance, was justified or overly extensive.

Court’s Reasoning

The SCA approached the matter by situating it within public international law concepts of sovereignty and jurisdiction, distinguishing prescriptive, enforcement, and adjudicative jurisdiction. It accepted that, absent consent or co-operation, a state’s enforcement jurisdiction (including investigative acts) is restricted to its own territory, while prescriptive jurisdiction may extend more broadly depending on domestic law and permissive rules of international law.

The Court explained that the post–World War II struggle against impunity and the development of international criminal law contributed to an expanded acceptance of universal jurisdiction in relation to certain international crimes, including crimes against humanity and torture. It emphasised that the Rome Statute system is built on complementarity, with primary responsibility for investigation and prosecution resting on domestic jurisdictions, and that South Africa enacted the ICC Act to give effect to these obligations and to provide for prosecution in South African courts of persons accused of such crimes in South Africa and, in certain circumstances, beyond South Africa’s borders.

Turning to the ICC Act, the SCA rejected the Commissioner’s interpretation that the conduct complained of only became a South African crime (or was “deemed” to have been committed in South Africa) once an alleged perpetrator was physically present in South Africa under section 4(3)(c). The Court held that this construction was inconsistent with the Act’s express provisions and would have untenable consequences (including the implication that the conduct would cease to be a crime when a perpetrator left the country). It further noted the inconsistency of such a view with the foundational criminal law principle that conduct can only be punishable if criminalised at the time of its commission. Properly read, section 4(1), together with the statutory definitions and Schedule 1, criminalised the relevant conduct (if proved) notwithstanding its extraterritorial commission.

On investigative competence, the SCA held that even though section 4(3) does not expressly authorise investigation prior to a suspect’s presence in South Africa, it also does not prohibit investigation. The necessary authority to investigate is found in the broader constitutional and statutory scheme. Section 205(3) of the Constitution sets out SAPS objects including to “prevent, combat and investigate crime,” and the SAPS Act (including the priority crimes framework) provides for the investigation of “national priority offences,” which include offences under the ICC Act. The Court pointed to the mechanism in section 17D(3) of the SAPS Act that allows the head of the priority crimes directorate to request the NDPP to designate a prosecutor to exercise section 28 powers under the NPA Act (interrogation of witnesses), thereby recognising a structured investigative role for SAPS with possible NPA assistance.

The Court accepted the foundational limitation that enforcement acts must generally occur within South Africa’s borders without foreign consent. It therefore framed the investigation as one to be conducted within South Africa, noting that the respondents did not seek to compel investigative steps in Zimbabwe and had offered to facilitate witness availability in South Africa. The Court held, in these circumstances, that SAPS had competence to initiate an investigation into ICC Act crimes committed extraterritorially, provided the investigative acts themselves were confined to South African territory unless co-operation was obtained.

The SCA then considered whether an investigation was warranted given concerns about practicality and the possible absence of perpetrators. It recognised that adjudicative competence for a trial would be constrained by fair trial rights, including the constitutional guarantee against trial in absentia, and by the ICC Act’s connecting factors for jurisdiction. It further accepted that initiating investigations in circumstances where there is no prospect of any connecting factor could waste scarce resources, while a rigid “presence requirement” for investigations could undermine the legislation’s broad framing and the fight against impunity. The Court noted that comparative approaches differed across jurisdictions and that there was no universal rule against investigations in the absence of alleged perpetrators.

Applying these considerations, the SCA held that the appellants’ refusal was vitiated because the Commissioner and the NDPP misconceived their powers under the ICC Act and related legislation and did not fully appreciate the international obligations assumed by South Africa. The Court also regarded the internal SAPS assessments as implicitly acknowledging that the matter was not entirely baseless and required “further and better investigation,” given the presence of eyewitness accounts and apparent corroboration by medical evidence and alignment with other organisations’ reports (as described in the record). The Court criticised the readiness with which the co-operation offered by SALC and ZEF was dismissed, observing that complainants and victims, although interested, are frequently utilised in investigative processes while police maintain objectivity.

On remedy, the SCA held that it was not for the court to prescribe how SAPS should conduct the investigation. It regarded the High Court’s detailed supervisory order as inappropriate in scope, and substituted it with narrower relief: setting aside the refusal decision and declaring SAPS empowered and required to initiate an investigation, without imposing operational directions on investigation conduct or prematurely directing prosecutorial management structures.

Outcome and Relief

The SCA granted leave to appeal and dismissed the appeal except to a limited extent relating to the form of the order. The High Court’s order was set aside and replaced with a substituted order.

The substituted order reviewed and set aside the SAPS decision taken on or about 19 June 2009 not to investigate, declared that SAPS were empowered to investigate the alleged ICC Act offences irrespective of whether the alleged perpetrators were present in South Africa, and declared that SAPS were required to initiate an investigation under the ICC Act into the alleged offences.

The NDPP and the National Commissioner of SAPS were ordered, jointly and severally, to pay the respondents’ costs (including the costs of two senior counsel and one junior counsel). The appeal costs were also awarded against the appellants, jointly and severally, including the costs of two counsel, save for the limited extent reflected in the substituted order.

Cases Cited

The Case of the S.S. Lotus (France v Turkey) (1927) Permanent Court of International Justice, Series A No. 10.

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 205(3); section 35(3)(e); sections 179 and 237 were raised in the High Court relief sought).

Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (in particular section 4; sections 2 and 3 were referred to in interpretive context; Schedule 1 Part 2, including the definition of torture).

South African Police Service Act 68 of 1995 (sections 13, 16, 17C, and 17D; and the Schedule provisions identifying ICC Act offences as national priority offences).

National Prosecuting Authority Act 32 of 1998 (sections 7, 13(1)(c), and 28).

Supreme Court Act 59 of 1959 (section 21(3)(c)(ii)).

International Co-operation in Criminal Matters Act 75 of 1996 (mentioned in relation to possible mutual legal assistance, in the High Court order).

Presidential Proclamation by the President of the Republic of South Africa of 24 March 2003, GN 46, Government Gazette 24876 of 23 May 2003 (relating to the HPCLU’s mandate, as described).

Foreign and comparative instruments and legislation referred to in the Court’s comparative discussion included the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998); Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (Canada); Penal Code (Straffeloven) 1930, section 8(5) (Denmark); Germany, Code of Criminal Procedure, paragraph 153f(2) and Act introducing the Code of Crimes against International Law (Gesetz zur Einfuhrung des Volkerstrafgesetzbuchs), BGBl 2002 I p 2254 (26 June 2002); International Criminal Court Act 2001 (United Kingdom); African Union (Draft) Model National Law on Universal Jurisdiction over International Crimes, EXP/MIN/Legal/VI (November–December 2011).

Rules of Court Cited

No specific rules of court were cited in the judgment. The procedural mechanism referenced was section 21(3)(c)(ii) of the Supreme Court Act 59 of 1959 regarding the referral of the leave to appeal application to oral argument.

Held

The Supreme Court of Appeal held that the refusal by SAPS to investigate the complaints of crimes against humanity (torture) allegedly committed in Zimbabwe was unlawful and could not stand because it was based on a misunderstanding of the powers and obligations created by the ICC Act and the associated constitutional and statutory investigative framework.

It held further that, on the facts of this case, SAPS were empowered to investigate the alleged offences even if the alleged perpetrators were not present in South Africa, and that SAPS were required to initiate an investigation under the ICC Act, with the investigation necessarily confined to steps that can lawfully be taken within South Africa absent foreign consent or co-operation.

The Court also held that the High Court’s order was too extensive in prescribing investigative steps and substituted it with a narrower order setting aside the refusal decision and declaring SAPS’s power and duty to investigate, coupled with appropriate costs orders.

LEGAL PRINCIPLES

The ICC Act creates domestic criminal offences corresponding to Rome Statute crimes, including crimes against humanity such as torture, and these offences are criminalised by South African law notwithstanding that the alleged conduct occurred outside South Africa.

Section 4(3) of the ICC Act, which sets out connecting factors for purposes of securing the jurisdiction of South African courts in respect of extraterritorial crimes, does not operate to postpone the criminalisation of conduct until an alleged perpetrator enters South Africa, and it does not imply that conduct ceases to be criminal when a perpetrator leaves South Africa.

The competence to investigate ICC Act offences is grounded in the combined constitutional and statutory framework governing SAPS and the NPA, including section 205(3) of the Constitution and the SAPS Act’s priority crimes investigation structures, with a statutory mechanism for prosecutorial assistance through the NPA Act where appropriate.

A distinction must be maintained between prescriptive jurisdiction (the ability to criminalise conduct) and enforcement jurisdiction (the ability to investigate and enforce), with enforcement acts generally confined to a state’s territory absent foreign consent. An investigation into extraterritorial ICC Act crimes may be initiated and conducted within South Africa without requiring the suspect’s presence as a precondition, although trial and adjudication remain subject to fair trial requirements and the connecting-factor jurisdictional provisions.

In deciding whether an investigation should be initiated, considerations of practicality, resource allocation, sovereignty, comity, and the prospect of a jurisdictional connecting factor may be relevant; however, where a refusal rests on a misconception of the legal framework and fails to account for the statutory purpose and obligations assumed through the ICC Act, that refusal decision is susceptible to review and set-aside.

National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012) [2013] ZASCA 168; 2014 (2) SA 42 (SCA); [2014] 1 All SA 435 (SCA) (27 November 2013)