Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (77150/09) [2012] ZAGPPHC 61; 2012 (10) BCLR 1089 (GNP); [2012] 3 All SA 198 (GNP) (8 May 2012)

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[2012] ZAGPPHC 61
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Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (77150/09) [2012] ZAGPPHC 61; 2012 (10) BCLR 1089 (GNP); [2012] 3 All SA 198 (GNP) (8 May 2012)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 77150/09
DATE:08/05/2012
In
the matter between:
SOUTHERN
AFRICAN LITIGATION
CENTRE
.................................................
1st
APPLICANT
ZIMBABWE
EXILES
FORUM
..........................................................................
2nd
APPLICANT
VS
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
................................
1st
RESPONDENT
THE
HEAD OF THE PRIORITY CRIMES
LITIGATION
UNIT
................................................................................................
2nd
RESPONDENT
DIRECTOR-GENERAL
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.............................................................
3rd
RESPONDENT
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
.............................................................
4th
RESPONDENT
JUDGMENT
FABRICIUS
J,
1.
1.
This is an application for judicial review of the decision of the
First, Second and Fourth Respondents not to institute an
investigation
into crimes against humanity of torture committed in
Zimbabwe ("impugned decision(s)"). The Second Respondent
has filed
a notice to abide by the decision of this court, but
belatedly also filed an answering affidavit which I will deal with
hereunder.
2.
The application is brought in terms of s6 of the Promotion of
Administrative Justice Act 3 of 2000 ("PAJA") and the

Implementation of the Rome Statute Act of the International Criminal
Court Act 27 of 2002 (ICC Act).
3.
According to the Applicants it concerns the First, Second and Fourth
Respondents' failure to discharge their obligations to investigate

and prosecute crimes under international law in accordance with South
Africa's international law obligations, and domestic law
contemplated
in the Rome Statute of the International Criminal Court ("Rome
Statute") and the ICC Act.
4.
Independently of PAJA, it also allegedly concerns the prolonged
refusal and/or failure by the Respondents to act in conformity
with
their obligations under the ICC Act, the principle of legality, and
their obligations under s179 of the Constitution of 1996
read with
the requirements of the National Prosecution Authority Act 32 of 1998
as amended.
5.
In addition, the delays by the Respondents in making their decision
allegedly violates s237 of the Constitution, which requires
all
constitutional obligations to be performed diligently and without
delay.
6.
Applicants have raised the following issues to be determined in
this application
:
a.
South Africa's obligation under international law to investigate and
prosecute international crimes in terms of the Rome Statute
and its
relevance to the impugned decision;
b.
South Africa's domestic obligation to investigate and prosecute
international crimes contemplated in the ICC Act and the legal

framework it creates;
c.
The nature, scope and extent of the obligation imposed on the First,
Second and Fourth Respondents in terms of the ICC Act in
relation to
the investigation and prosecution of international crimes, in light
of South Africa's international and domestic law
obligations,
including those under the Constitution;
d.
What is legally required of the First, Second and Fourth Respondents
when contemplating the investigation and prosecution of
crimes
contemplated in the ICC Act, in light of South Africa's international
and domestic obligations, and faced with a comprehensive
dossier
containing evidence indicating the commission of torture on a
widespread and systematic scale by perpetrators, who after
the
commission of the offence are or may be anticipated to be present in
South Africa;
e.
Whether the First, Second and Fourth Respondents' conduct and
decision took into account, as required by law, relevant
international
law considerations;
f.
Whether the manner in which the First, Second and Fourth Respondents
handled the Applicants' request was consistent with - and
gave effect
to - the purpose and objectives of the ICC Act ie:
Whether
the First Respondent was entitled to refer the matter in its
entirety to the Fourth Respondent, and thereby abrogate its

responsibility;
Whether
the First Respondent applied its mind to the decision of the Fourth
Respondent not to initiate an investigation.
g.
Whether the Applicants were justified in submitting their request for
an investigation to the Second Respondent;
h.
Whether the information provided by the Applicants was sufficient to
justify the initiation of an investigation;
i.
Whether the First, Second and Fourth Respondent relied on
considerations that were irrelevant to the determination of the
question
before them ie:
(i)
Whether the Applicants were required to conduct a court- directed
investigation in bringing this matter to their attention;
(ii)
Whether the Respondents were entitled to rely on reasons based on
speculation (i.e. anticipated non-co- operation of Zimbabwe);
(iii)
Whether the Respondents were justified in taking into account
political considerations in deciding not to initiate an
investigation;
(iv)
Whether the Respondents could rely on justifications proffered after
the impugned decision(s) was/were made;
j.
Whether the delay occasioned by the Respondents was justified.
k.
Whether the Applicants have locus standi. I must add that the conduct
of the Second Respondent, and his obligations/duties also
deserve
scrutiny.
7.
The following relief is sought
:
a.
Reviewing and setting aside the impugned decision(s);
b.
A declaratory order that the impugned decision(s) are unlawful and
inconsistent with the Constitution and invalid;
c.
A declaratory order that the delays occasioned by the Respondents in
reaching the impugned decision(s) violates s179 and s237
of the
Constitution;
d.
A mandamus directing the First, Second and Fourth Respondents to
reconsider the Applicants' request to initiate an investigation.

(This prayer was later expanded upon at my
request)
e.
The costs of this application;
8.
What follows are the facts relied upon by the Applicants, and where
necessary I will refer to the Respondents' version at the
appropriate
stage. The relevant events took place on 27 March 2007 in Harare,
Zimbabwe. Applicants say that on that day the Zimbabwean
police,
under orders from the ruling party, the Zanu-PF, raided the
headquarters of the opposition party, the Movement for Democratic

Change ("MDC"). Over one hundred people were arrested and
taken into custody, amongst them were MDC supporters and officials,

as well as persons who worked in near by shops and offices.
Individuals affiliated to the MDC were detained for several days, and

were continuously and severely tortured. In response to this raid
First Applicant compiled detailed and motivated representations

consisting of testimony relating to events that took place during and
subsequent to this raid, which had taken place at Harvest
House. The
representations consisted of twenty three signed affidavits, in which
seventeen deponents attested to being tortured
whilst in police
custody. The remaining affidavits, attested to by Zimbabwean lawyers
and medical practitioners, confirm that these
individuals were in
fact tortured. Applicants say that these affidavits also demonstrated
that;
1.1
The individuals were tortured on the basis of their association with
the MDC and their opposition to the ruling party, Zanu-PF;
1.2
The abuse that they were subjected to was inflicted by-and at the
instigation of and/ or consent or acquiescence of public officials;
1.3
These acts of torture were part of a widespread and systematic attack
on MDC supporters and officials and those opposed to the
ruling
party, the Zanu-PF.
9.
Applicants then alleged that in the light of the collapse of the Rule
of Law in Zimbabwe, concern for the safety of the victims,
and the
unlikely- hood of securing accountability in a Zimbabwean court,
First Applicant believed that because South Africa was
legally
required to investigate war crimes, crimes against humanity and
genocide, regardless of whether they were committed in
South Africa
or by South African nationals, those responsible could and should be
held accountable under South African law designed
for this very
purpose.
10.
SALC (First Applicant) accordingly incorporated the evidence into a
detailed dossier ("the torture docket" or "the

docket") and on 14 March 2008 hand-delivered it to the Priority
Claims Litigation Unit ("PCLU", the Second Respondent),

being the entity responsible for the investigation and prosecution of
crimes contemplated in the ICC Act, as part of the National

Prosecuting Authority ("the NPA").
11.
The docket consisted of a detailed legal memorandum, and
:
1.1
identified the Zimbabwean officials responsible for the raid and
relevant torture;
1.2
provided an overview of torture as a crime against humanity;
1.3
detailed South Africa's legal international obligations and
jurisdiction to investigate and prosecute international crimes
contemplated in the ICC Act;
1.4
outlined the obligation imposed on the authorities responsible for
the administration and enforcement of the ICC Act;
1.5
requested the responsible authorities to institute an investigation
with the view to prosecuting those responsible.
12.
Applicants say that a summary of the evidence accompanied the
legalmemorandum, and included the affidavits of those tortured,

corroborating testimony of lawyers, doctors and family members, as
well as medical records. It also contained reports of reputable

and
independent organisations such as Human Rights Watch and
Amnesty International, which documented both the events subsequent to
28
March 2007, and other separate clusters of the systematic use of
torture on the part of Zimbabwean police.
13.
It is Applicants' case that the docket made the following abundantly
clear
:
1.1
that SALC gathered evidence which showed that the harm inflicted by
the Zimbabwean police falls within the internationally accepted

definitions of torture and crimes against humanity;
1.2
that identified Zimbabwean officials were responsible for the crime
against humanity, ie torture;
1.3
these officials from time to time visit South Africa and that, if and
when they do so, South Africa was under a duty at International
Law
and under the ICC Act to apprehend and prosecute them if possible;
1.4
That it was the NPA's function under the ICC Act to discharge its
duty on behalf of the State, by doing whatever was necessary
in law
to consider the docket and to take appropriate action.
14.
In the light of those considerations, the torture docket requested
the following from the NPA
:
1.1
that it, through the PCLU, consider the memorandum together with
evidence contained in the docket, in order that it may with
all
reasonable speed decide to take appropriate action under the ICC Act,
against acts of torture as a crime against humanity committed
by the
named perpetrators in Zimbabwe:
1.2
if the need arose, that the NPA consult further with SALC and its
lawyers in respect of the further gathering of evidence and
or
provision of advice, regarding international criminal law in relation
to the acts alleged against the named perpetrators;
1.3
that the NPA communicate its decisions in respect of a prospective
decision to the Director of SALC.
It
is now convenient to refer to the relevant statutory provisions and
other policy documents and directives:
15.
The Constitution of the Republic of South Africa
;
1.1
Chapter 1 section 2 deals with the supremacy of the Constitution and
provides that it is the supreme law of the Republic. Law
or conduct
inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled. Chapter 2 contains the Bill of
Rights, which is
the corner-stone of democracy in South Africa. It enshrines the
rights of all people in the country, and affirms
the democratic
values of human dignity, equality and freedom. The State must
respect, protect, promote and fulfil the rights contained
therein.
The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary, and all organs of State.
Chapter 3 deals
with co-operative government, and provides that all spheres of
government must observe and adhere to the principles
contained in the
chapter, and must conduct their activities within those parameters.
Chapter 8 deals with courts and the administration
of justice.
Section 179 in particular deals with the prosecuting authority. This
consists of a National Director of Public Prosecutions,
who is the
head of the prosecuting authority, and is appointed by the President.
He is also the head of Directors of Public Prosecutions,
and
prosecutors as determined by an Act of Parliament. The prosecuting
authority has the power to institute criminal proceedings
on behalf
of the State, and to carry out any necessary functions to instituting
criminal proceedings. The section also provides
that the National
Director must issue policy directives which must be observed in the
prosecution process, and may review a decision
to prosecute or not to
prosecute under certain specified circumstances. Section 205 deals
with the police service. The objects
of the Police Service are to
prevent, combat and investigate crime, amongst others. A National
Commissioner of the Police Service
controls and manages it, subject
to certain constraints.
1.2
National Prosecuting Authority Act 32 of 1998
as amended;
Section
7
provides for the establishment of certain Investigating
Directorates in the office of the National Director
, which may be
so established by the President by proclamation in the Gazette.
Chapter 4 deals with the powers, duties and functions
of members of
the Prosecuting Authority.
Section 20
provides for the power to
institute and conduct criminal proceedings on behalf of the state,
and to carry out any necessary functions
incidental to instituting
and conducting such criminal proceedings, amongst others.
Section 21
,
as contemplated by the Constitution, provides for a prosecution
policy and issuing of policy directives. Section 22 provides for
the
application of the United-Nations guidelines on the role of
prosecutors within the framework of national legislation. Chapter
5
applies to the powers, duties and functions relating to Investigating
Directorates. Nothing in that chapter derogates from any
power or
duty which relates to the prevention, combating or investigation of
any offences, and which is bestowed upon the South
African Police
Service in terms of any law.
1.3
South African Police Service Act 68 of 1995
as amended
;
The
National Commissioner of the service is appointed according to the
mentioned terms of the constitution. Chapter 6A deals with
a
Directorate for Priority Crime Investigation.
Section 17F
, in the
context of a multi-disciplinary approach, requires government
departments or institutions when required to do so, to take

reasonable steps to assist the Directorate in the achievement of its
objectives. The said chapter 6 was inserted into the Act by
s 5.3 of
Act 57 of 2008 which came into operation on 06/07/2009, after the
impugned decision of 29/05/2009.
1.4
The NPA's Prosecution Policy
;
This
document amongst others describes the role of the prosecutor in
criminal proceedings, the discretion given to him or her in
the
context of the criminal process, and more particularly deals with the
decision whether or not to institute criminal proceedings
against an
accused, but before that part of the process occurs, also provides
for a docket to be handed to the prosecutor by the
police, which
needs to be properly studied so as to ensure that the relevant facts
had been properly investigated. Thereafter the
prosecutor should
consider whether to request the police to investigate the case
further, to institute the prosecution, or to decline
to prosecute,
amongst other powers.
1.5
The NPA's directive on foreign investigations
;
This
directive indicates what is required when foreign investigations are
contemplated. Investigations abroad could be conducted
formally, by
way of a formal letter of request, or alternatively in terms of the
procedure provided for by the International Co-operation
in Criminal
Matters Act 75 of 1996. Informal investigations could be done
generally through Interpol channels, or whatever other
informal
methods were approved by the particular country. It is also stated
that an investigation team should never travel to a
foreign country
without the prior knowledge and approval of the appropriate
authorities in that country. Provision is then also
made for the
contingency of obtaining statements abroad.
1.6
The South African Development Community Protocol on Mutual Legal
Assistance in Criminal Matters
;
This
protocol provides for the widest possible measure of mutual legal
assistance in criminal matters which includes investigations,

prosecutions or proceedings relating to offences concerning
transnational organised crime, corruption, taxation, custom duties

and foreign exchange control. Zimbabwe did not ratify this protocol.
1.7
The Zimbabwe Criminal Matters (Mutual Assistance) Act 13 of 1990
;
The
granting of assistance is under the control of the Attorney General,
who may refuse a request by a foreign country for assistance
under
that Act if the request relates to the prosecution or punishment of a
person for an offence that is, by reason of the circumstances
in
which it is alleged to have been committed or was committed, an
offence of a political character or if there are reasonable
grounds
for believing that the request has been made with a view to
prosecuting or punishing a person for an offence of a political

character.
1.8
The Implementation of the Rome Statute of the International
Criminal Court Act, 27 of 2002
:
1.8.1
It is convenient to quote part of the preamble to this Act in the
present context; "The Republic of South Africa is committed
to.
bringing persons who commit such atrocities to justice, either in a
Court of Law in the Republic in terms of its domestic laws
where
possible, pursuant to its international obligations to do so when the
Republic became party to the Rome Statute of the International

Criminal Court, or in the event of the National Prosecuting Authority
of the Republic declining or being unable to do so, in line
with the
principle of complementarity as contemplated in the statute, in the
International Criminal Court, created by and functioning
in terms of
the said statute; and, carrying out its other obligations in terms of
the said statute;"
I
will refer to this statute as the "domestic Rome Statute".
"The
Statute" means the Rome Statute of the International Criminal
Court, adopted by the United Nations Diplomatic Conference
of
Pleni-potentiaries on the establishment of the International Criminal
Court on 17 July 1998, and ratified by the Republic on
10 November
2000. In addition to the Constitution and the law, any competent
court in the Republic hearing any matter arising from
the application
of this Act must also consider and, were appropriate, may apply -
a.
conventional international law, and in particular the
Statute;
b.
customary international law;
c.
comparative foreign law.
1.8.3
The Objects of the Act are the following
;
a.
to create a framework to ensure that the Statute is effectively
implemented in the Republic;
b.
to ensure that anything done in terms of this Act conforms with the
obligation of the Republic in terms of the Statute;
c.
to provide for the crime of genocide, crimes against humanity and war
crimes;
d.
to enable, as far as possible and in accordance with the principle of
complementarity as referred to in Article 1 of the Statute,
the
National Prosecuting Authority of the Republic to prosecute and the
High Courts of the Republic to adjudicate in cases brought
against
any
person accused of having committed a crime in the Republic,
and beyond the borders of the Republic in certain circumstances; and
e.
in the event of the National Prosecuting Authority declining or being
unable to prosecute a person as contemplated in par (d),
to enable
the Republic to co- operate with the Court in the investigation and
prosecution of persons accused of having committed
crimes or offences
referred to in the Statute, and in particular to -
(i)
enable the Court to make requests for assistance;
(ii)
provide mechanisms for the surrender to the Court of persons accused
of having committed a crime referred to
in the Statute;
(iii)
enable the Court to sit in the Republic; and
(iv)enforce any
sentence imposed or order made by the
Court.
"A
crime against humanity" means any conduct referred to in part 2
of Schedule 1 of this Act. In the present context it
referrers to
torture when committed as part of a widespread or systematic attack
directed against any civilian population, with
knowledge of the
attack. "Torture" means the intentional infliction of
severe pain or suffering whether physical or mental,
upon a person in
the custody or under the control of the accused; except that torture
shall not include pain arising only from,
inherent in or incidental
to, lawful sanctions. Chapter 2 provides for the jurisdiction of
South African courts and institution
of prosecutions in South African
courts in respect of a crime and, in s 4 (1) states that any person
who commits a crime is guilty
of an offence and is liable to certain
punishment. S 4 (3) provides the following; "In order to secure
the jurisdiction of
a South African court for purposes of this
chapter, any person who commits a crime contemplated in ss (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 omission 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."
S5
(1 ) provides that no prosecution may be instituted against a person
accused of having committed a crime without the consent
of the
National Director.
1.9
The Presidential Proclamation appointing Second Respondent;
This
proclamation was made under s13 (1) (c ) of the
National Prosecuting
Authority Act on
24 March 2003, and appoints the Second Respondent, a
special Director of Public Prosecutions to head the Priority Crimes
Litigation
unit, and to manage and direct the investigation and
prosecution of crimes contemplated in the implementation of the Rome
Statute
of the International Criminal Court Act 27 of 2002, and
serious national and international crimes amongst others.
2
.
The
Persons
;
Mr
T.C Williams drafted Fourth Respondents answering affidavit herein.
During the times relevant to these proceedings he had been
the acting
National Commissioner of the South African Police Service. The acting
National Director of Public Prosecutions had been
Advocate Mpshe SC.
Advocate Ackerman SC had been head of Second Respondent. Advocate M
Simulane SC had been Director General; Department
of Justice and
Constitutional Development up to 14 October 2009.
3.
The
decision
;
Mr
Williams described the factual background as follows; On 5 January
2009 he received a letter signed 17 December 2008 from the
Acting
National Director of Public Prosecutions Advocate Mpshe SC, in which
it was recorded that the allegations made in what was
referred to as
"the docket" required further investigation before the
Acting National Director could make a decision
whether to prosecute
or not. He forwarded the letter to General Lalla, who at the time was
the Divisional Commissioner: Detective
Service. He in turn referred
the letter to the head: Legal Support: Crime Operations, General
Jacobs. General Jacobs had elicited
the services of Colonel Bester
from die SAPS legal services to advise whether the docket, from an
investigative point of view,
was adequate or not. Colonel Bester
apparently perused the entire docket and was of the view that it was
not only inadequately
investigated, but that further investigations
into the relevant allegations would be impractical and virtually
impossible. Mr Williams
on 29 May 2009 wrote to the Acting National
Director, Advocate Mpshe SC, advising him that the South African
Police Service should
not initiate an investigation as suggested by
First Applicant. He gave reasons. Advocate Mpshe SC made an affidavit
in which he
stated, amongst others obviously, that the decision not
to institute an investigation was taken by Fourth Respondent on 29
May
2009, which decision had been communicated to him on 12 June
2009. The decision therefore had not been made either by him or the

Second Respondent. He had however agreed with the decision. I must
add that Advocate Ackerman SC, the Second Respondent in effect,
had
recommended at one stage that an investigation be instituted as
requested by First Applicant.
3.1
It however also appears from the answering affidavit, in answer to
his affidavit filed a few days before the hearing, that he
had been
of a different view at another stage, which view substantially
accorded with that of Mr. Williams. Before me, he did not
explain
this at all. In December 2008 the Second Respondent was of the view
that the docket should be investigated by the Fourth
Respondent, who
on 29 May 2009 decided not to do so, for a number of reasons which
were then accepted by the First Respondent.
In the context of the
mentioned time-period First Applicant's heads of argument said the
following: five months had passed before
Fourth Respondent declined
to initiate an investigation. He did so, on the basis of five
unsubstantiated reasons, and provided
no evidence of any efforts
undertaken to even attempt an investigation, or to engage with the
Second Respondent. In this five month
period between the referral by
the First Respondent to the Fourth Respondent, no guidance and
direction was sought from or given
by the National Prosecuting
Authority. Also, during this period, the South African Police Service
did not take any preliminary
steps to investigate the allegations. No
docket was registered nor an investigating officer appointed. No
witnesses were interviewed,
and no attempt was made to monitor the
movements of the relevant perpetrators in and out of South Africa,
and no attempts were
made to engage with the Applicant. Advocate
Ackerman SC, the head of Second Respondent, was at one stage unhappy
with the manner
in which the South African Police Service handled the
matter, and was of the view that it should as a minimum have
registered such
a docket, appointed an investigating officer, held
discussion with the First Applicant and witnesses, and then should
have submitted
the docket back to the National Prosecuting Authority.
Advocate Mpshe SC did not share these concerns, and supported Fourth
Respondents'
decision and reasoning. In the context of these facts,
First Applicant was of the view that the lengthy and detailed
answering
affidavits filed by the First and Fourth Respondents
evidenced a "rearguard attempt to explain, ex post facto,"
the various
difficulties that the Respondents now called into
service, and seeking to explain a decision not to institute an
investigation.
In the context of the reasons offered in this
application by the Respondents, First Applicant's say that:
1.1
the reasons had not been forthcoming until the
application
was launched;
1.2
the reasons changed between the filling of the Rule 53
record
and the filling of the answering affidavit;
1.3The
reasons are on the main an after - the - fact collection of
speculative "justifications" for why it would not have
been
possible to conduct an investigation. I may say at this stage that
Respondents admitted that an undue delay had occurred but
stated that
the Applicants had not been prejudiced thereby.
4.
Fourth
Respondent's reasons
;
As
said, Fourth Respondent wrote to First Respondent on 29 May 2009
declining to initiate an investigation as suggested by First

Applicant. In the context of the argument before me, it is necessary
to quote this letter.
"Dear
Advocate Mpshe SC
ALLEDGED
CONTRAVENTION OF THE IMPLEMENTATION OF THE ROME STATUTE OF
THE
INTERNATIONATIONAL
CRIMINAL COURT ACT, 2002
(ACT
NO 27 OF 2002): ZIMBABWE
With
reference to your letter dated 15 December 2008 in respect of the
abovementioned matter and the letter of Southern African
Litigation
Centre (SALC) dated 20 April 2009, I may inform that an initial
evaluation of the so - called "docket" provided
by the SALC
has been conducted.
As
you are most probably aware, the so-called "docket"
contains a number of "statements" which are unsigned
and
which contain allegations of torture being committed by Zimbabwean
officials. The information therein is, in addition to the
above, of
such a nature that it is insufficient to constitute evidence in an
investigation into contraventions of the above Act.
Although
the SAPS does not believe that it is legally entitled to initiate an
investigation into the allegations merely on the "anticipated

presence" of the persons in South Africa, as suggested by the
SALC, the ability of the SAPS to conduct investigations relating
to
event which occurred in another country will be hampered by the
following factors:
-
In order to conduct a thorough, court-directed investigation, the
identity of the deponents and the contents of the statements
need to
be verified. For obvious reasons, this cannot be done through the
utilization of existing legitimate channels, thus hampering
the
collection of the required evidence.
-
While we have noted an undertaking by the SALC to make witnesses
available and assist in obtaining evidence, the manner in which
they
are to be made available and the manner in which evidence is to be
collected, especially in respect of the Zimbabwe Government
or de
facto authority, is not clear. The value of the undertaking is also
uncertain and neither the SAPS nor our courts for that
matter have,
without the assistance of the Zimbabwean Authorities, the ability to
ensure such co- operation.
Given
the identity of the perpetrators and the relevant circumstances
prevailing in the country it stands to reason that the required

evidence will to a greater or lesser extent have to be obtained in a
covert manner, by unknown persons and entities (over whom
we have no
control) at the behest of
the
SAPS.
-
This you will appreciate would imply that these persons are in fact
"agents of the service and a very real risk exists that
the SAPS
can be accused of conduct which is tantamount to espionage, or at the
very least impinging on that countries sovereignty.
-
At this stage, the docket contains nothing more than mere allegations
and I do not see my way clear or involving the SAPS in an

investigation, the legality of which is questionable and which can
have for reaching - implications for the Service and the country
in
general. It may also be pointed out that following the submission of
the "docket" to your office the SALC wrote an
article which
was published in the Mail and Guardian in which this fact was made
public. It can therefore be expected that should
the SAPS undertake
to investigate the matter the SALC may make public this fact thus
compromising any investigation which may have
been possible.
Furthermore the undertaking of an investigation will generally be
construed as being sanctioned by Government and
as reflecting South
Africa's policy in respect of that country; a decision which can, for
obvious reasons, not be taken in isolation.
In conclusion it may be
mentioned that the undertaking of any investigation will in addition
to negatively impacting on South Africa's
diplomatic initiatives in
Zimbabwe, compromise the position of the SAPS when is assumes the
chair of the Southern African Regional
Police Chiefs Co- operation
Organization (SARPCCO), the official SADC law enforcement structure,
in September this year (2009).
Similarly, the undertaking of an
investigation against the top structures of the Zimbabwean Police
will be met with resistance
and will effectively bring to end not
only ongoing and future criminal investigations, (which are in the
direct interest of the
Republic). Given the uncertainties which exist
in respect of the legalities pertaining to the conduct of such an
investigation,
and its consequences for SAPS and the country, I do
not intend to initiate an investigation as suggested by the SALC."
5.
In
his answering affidavit the Fourth Respondent also made reference
more specifically to a regional organisation known as the "Southern

African Regional Police Chiefs Co-operation Organisation". This
organisation is also presently an institution of the South
African
Development Community. On a national level the Directors General of
the departments of State Security, Correctional Services,
Justice and
Constitutional Development, the South African Police Service as well
as the department of International Relations and
Co-operation, serve
on a committee known as the International Co-operation Trade and
Security committee. He was represented on
this committee by General
Jacobs. In this context he confirmed that it would have had a
definite detrimental and prejudicial effect
on the relationship
between the various police forces of the SADC countries if it were to
be disclosed that South Africa was contemplating
an investigation of
high - ranking police officials of Zimbabwe, in respect of a crime
committed in Zimbabwe by Zimbabweans. In
this context he stated in
his answering affidavit that; "it stands to reason that if the
SAPS were to have initiated an investigation
aimed at prosecuting six
Ministers and Directors -General, together with a Commissioner and
eleven members of a special task force,
the Zimbabwe Police Service
may, to put it euphemistically, have taken an adverse view on the
conduct of the SAPS and it may have
led to that Police Service
declining to co-operate with the SAPS on other matters. He was also
of the view that neither the South
African Police Service nor the
South African courts have the ability to ensure co-operation from the
Zimbabwean authorities to
investigate the matter.
6.
It
is convenient at this stage to refer to the appointment of Brigadier
Marion who was tasked to establish whether the statements
and other
material contained in the docket constituted a court - investigation
into the allegations which the First Applicant sought
to be
investigated. This was done after the application had been served.
Brigadier Marion filled a comprehensive supporting affidavit
setting
out all the deficiencies in the docket which still had to be
investigated in order to properly submit a dossier to the
First
Respondent to consider whether he would be able to institute a
prosecution which had a reasonable prospect of success. Brigadier

Marion's assessment of the torture docket only occurred on 3 February
2010. First Applicant argued that this evidence is a belated
exercise
in irrelevancy. They object to the retrospective justification of the
imputed decision and in any event, the mandate given
to Brigadier
Marion was to advise on the prospects of a successful prosecution
rather than investigating whether the torture docket
was sufficient
to initiate an investigation with a view to prosecution. The wrong
question was therefore asked and answered. Brigadier
Marion did in
fact explain in his affidavit what a "court - directed"
investigation was. Such an investigation has at
its primary object
the gathering of evidence relevant to the commission of a crime in a
matter so as to enable a prosecutor to
make a properly informed
decision whether or not to prosecute, and in the event of a
prosecution being instituted, to ensure the
conviction of the
accused. I do not agree that the whole affidavit of Brigadier Marion
is either inadmissible or irrelevant. He
analysed thirteen of the
witness statements and gave detailed explanations of their
deficiencies. (In the context of the question
put to him) Having
regard to the context in which First Applicant's have put this case
before this court, I am of the view that
any Judge would have had to
read the docket himself and at the very least form an opinion whether
the allegations contained therein
established the elements of the
crime against humanity (this is after all what the First Applicant's
alleged has occurred and in
which context it has presented this
case), and whether or not further investigations ought to have taken
place, and what the nature
of these investigations ought most likely
to have been, and what further information was necessary. By way of
example I will refer
to his analysis of one of the witnesses only and
this was in respect of witness number one. Statement;
"He
was arrested on 26 March 2007 by two police officials and he admits
that he is a member of the MDC. He alleges that he
was continuously
assaulted and tortured over a period of time. The following requires
further investigation:
1.1
In paragraph two of his affidavit he does not mention the names of
the policemen who arrested him. This must be established.
1.2
In paragraph 3 of his affidavit he does not mention the member in
charge of the police station where he was detained. This person
would
have to be approached to confirm or dispute his version.
1.3
A search will have to be conducted at the other police station for
his files and children's luggage to corroborate his version
and to
establish whether his clotting was in fact connected to any bombings.
1.4
The railway line mentioned in paragraph 4 will have to be visited and
the witness will have to point out the spot where he was
allegedly
tortured. This will have to be photographed. It must be established
whether in fact a train had been petrol bombed at
that spot.
1.5
All the police stations and other scenes will have to be visited and
photographed, especially the rooms which featured prominently
in the
allegations of torture. Forensic Crime scene testing is also required
to ascertain whether blood or other fluid can be found
which can be
linked to the victims DNA.
1.6
In paragraph 7 he mentions that he was assaulted by a gang of police
officers. He does not mention who they are and what each
of them did,
and which of the instruments were used by each of them to assault
him.
1.7
He does not mention in his affidavit the names of the people whom he
falsely implicated as having committed offences. It should
be
established what information was given to him by the alleged
torturers and what he made up of his own accord.
1.8
We will require the so-called many confessions and statements which
he was forced to make. This will be required to test his
version and
the contents of these statements will be the subject of a number of
further investigations.
1.9
In paragraph 11 he mentions that he was taken by car to Harare Police
Station. It is not explained or mentioned in his affidavit
what the
colour, make or other description of the car was, which would assist
to trace the vehicle and ultimately the driver and
other assailants.
1.10
In paragraph 13 he names specific police officers as persons who
actively or passively participated in the assaults on him.
This is
not sufficient as he needs to state what each police official did and
what weapons were used to assault him. He also needs
to mention who
stood by and did nothing.
1.11
He does not mention in his affidavit whether he received medical
treatment for any injuries which he sustained.
1.12
The statement was recorded nearly a year after the incident.
1.13
He does not elaborate in his affidavit whether he was released,
whether he was charged or not and whether he was or is being

prosecuted.
1.14
No medical report has been filed relating to him.
7.
In
the said context Brigadier Marion analysed thirteen witness
statements on a similar basis. I am of the view that a court would

have had to do the same exercise, albeit not that detailed if the
proper question is asked and answered. He concluded that the

statements provided by the First Applicant were inadequate for a
"court - directed" investigation. The allegations of

torture would have had to be re-investigated from scratch. He
highlighted certain issues which would have to be addressed in any

new investigation. I set out a number of them;
1.1
A number of the statements had not been signed or commissioned;
1.2
None of the statements indicate that the witnesses did not require an
investigation by the South African authorities nor do
they confirm
that they were prepared to testify in a South African court;
1.3
In several instances the names of the alleged torturers were spelt
differently and appropriate investigations would have to
be
undertaken to properly establish the identities of all the implicated
police officials;
1.4
It would be necessary to see all the relevant records maintained by
the Zimbabwean police relevant to the arrest, detentions
and court
proceedings;
1.5
Prison records relating to the detention of the witnesses would also
have to be obtained;
1.6
Court records would have to be obtained in particular the ones where
the matters state and or prosecute the noted injuries on
the persons
of certain of the witnesses;
1.7
No medical reports were provided for at least seven of the witnesses
and medical reports in respect of at least eleven persons
who had not
provided witness statements were filled. In many cases the
observations reflected on the medical reports were in illegible
hand
wrighting, and in some cases even the names of the patients and or
doctors could not be established;
1.8
In respect of seven witnesses, the reports were compiled months after
the medical examinations;
1.9
In the case of certain witnesses, more than one report had been
compiled, and a second report was either unsigned or the author

thereof was not identified;
1.10
Proper affidavits would have to be obtained from all examining
medical practitioners;
1.11
In as much as these were mainly State employees, the consent of the
Zimbabwean government would have to be obtained;
1.12
The Zimbabwean Prosecuting Authority would have to explain why no
criminal proceedings were instituted against any of the persons

arrested;
1.13
The implicated parties would have to be approached, informed of the
allegations against them and provided with an opportunity
to raise a
defence.
8.
It
was stated that a South-African prosecutor would not have been
prepared to make a decision to prosecute on the facts placed before

him such as they were, but would have directed that further
investigations be conducted (I underline). All of those
investigations
would have to be conducted in Zimbabwe. No South
African police officer would have the right to travel to Zimbabwe and
to proceed
to carry out the mentioned investigations without special
authorisation. In the case of at least seventeen of the witness's
statements,
"copying and pasting" had occurred. The South
African Authorities had no legal basis upon which to investigate a
charge
of torture and consequently, it had to be established whether
there was any basis on which a crime against humanity could be
investigated.
It had to be so that the implicated parties conducted
the actual torture, that they knew that their conduct was
contributing to
a wide spread or systematic attack on a civilian
population, and in this context, a strategy of the Zanu - PF to
intimidate the
MDC, and to weaken its power base as the political
opposition. A complete analysis of all the witness statements
supported Brigadier
Marion's conclusion that the special unit was
tasked with the investigation of bombings and conducted a round-up of
all persons
suspected or implicated therein. The Harvest House
incident was therefore not a stand-alone one, but an integral part of
a police
action commencing on 26 March 2007 and concluding with the
arrest of the last suspect in April 2007. Twenty six persons were
arrested
during this round - up and fourteen did not even claim any
membership or association with the MDC. In respect of the Harvest
House
incident, at least four of the persons detained and tortured
also did not claim any association with the MDC. Although several
witnesses claimed that they were questioned about MDC affairs and
that derogatory remarks were made about their support of the MDC,
the
primary focus of the alleged interrogations and torture appear to
have been directed at obtaining confessions in respect of
specific
crimes. For instance, witness number 4 alleged that he would have
been beaten to death if he did not produce the diary
which indicated
where certain petrol bombings were to take place. Witness number 10
also claimed that he was accused of commanding
a specific bombing,
and witness number eleven alleged that he had been accused of being
responsible for certain bombings during
the previous week.
9.
In
the light of those mentioned facts (I have not mentioned all of them)
it appeared to the Brigadier that it would be problematic
in trying
to establish that when the police officers carried out the said acts
of torture they knew that they were contributing
to a wide spread and
systematic attack on the MDC in order to further a political strategy
of the ruling party. In the event of
this not being established, the
issue of a crime against humanity would fall away, and with it, any
possible basis upon which the
South African authorities could
lawfully be involved with the matter. The material submitted by First
Applicant also contains statements
relating to the torture of the
leader of the MDC and other MDC officials after a rally on 11 March
2007. Further extensive investigations
in Zimbabwe would have to be
conducted in order to establish whether this event constituted a
crime against humanity, which could
be legitimately investigated by
the South African authorities. He pointed out that First Applicant
also sought the investigation
of six Ministers and Heads of
Department on the basis of "command responsibility" In this
context Article 28 (b) of the
International Rome Statute was
relevant. None of the witnesses implicated the command structure at
all. By way of summary therefore
the investigation of all aspects of
the alleged crime against humanity would have to be conducted in
Zimbabwe. The Fourth Respondent
had no general power to do such
investigations, and in any event, he was of the view that an
investigation could only be contemplated
if it was proven that the
implicated parties were present in South Africa after the commission
of the crimes. He did such investigations
as were necessary in this
context and stated that the relevant database revealed that;
1.1
Eleven of the alleged torturers had never visited South Africa;
1.2
One such alleged torturer did visit South Africa once in January 2009
and once in 2010;
1.3
The Minister implicated in First Applicant's memorandum last visited
the country in January 2008;
1.4
The head of a Department mentioned only visited South Africa on
certain occasions in 2009 but not at all during 2010;
1.5
The Minister referred to in the memorandum visited South Africa only
once in 2008 (a visit of less than 24 hours duration) and

subsequently never visited South Africa again;
1.6
Another head of a Department mentioned had never visited South
Africa;
1.7
Not a single one of the persons implicated had at all been present in
South Africa during the period 14 to 31 March 2008. (It
was not
explained why, only this period had been considered.)
10.
First
Respondents Reasons
;
First
Respondent also made a lengthy answering affidavit. He had agreed
with the decision of the Fourth Respondent. When he had
received the
Commissioner's letter, he had identified the reasons for him deciding
not to initiate an investigation as having been
the following;
1.1
The statements compiled by the First Applicant fell short of a
thorough court- directed investigation;
1.2
SAPS could not conduct the investigation which would be necessary to
overcome the shortcomings;
1.3
SAPS could not accept the offer of the First Applicant to gather
evidence on its behalf for the reasons stated;
1.4
The undertaking of an investigation could tamper the existing and
ongoing investigation of crimes committed in South Africa
where
co-operation from the Zimbabwean police was necessary;
1.5
The undertaking of an investigation could also negatively impact on
South Africa's international relations with Zimbabwe.
As
said, the First Respondent accepted the validity of these reasons and
stated that he had those concerns all along. First Respondent
was of
the view that the case reported by First Applicant called
specifically for a very professional, thorough and all embracing

investigation. He agreed with the summary of shortcomings pointed out
by Brigadier Marion.
Having
regard to the mentioned deficiencies he would never support the
arrest of any of the implicated parties if such deficiencies
existed
or continued to exist. The crimes sought to be investigated were
solely committed in Zimbabwe. Any investigation would
have to be
conducted in that country. He was fully aware of the need, under
those circumstances, to evoke mutual legal assistance
mechanisms in
order to acquire evidence from a foreign state and in this context
also referred to the NPA directives relating to
investigations
abroad. This document highlighted that neither a prosecutor nor an
investigator would have any powers in a foreign
state and that all
assistance had to be obtained through the relevant authorities in the
foreign state. An investigator working
abroad was bound by the
legislation of that country. With reference to the Rome Statute of
the International Criminal Court, and
the domestic Rome Statute, he
stated that he did not take either of these Statutes into
consideration when deciding to accept the
decision of the Fourth
Respondent. He was of the view that these Statutes did not impose any
obligation on any of the Respondents
to investigate the case having
regard to the above -mentioned considerations. The material provided
by First Applicant fell short
of a proper investigation as
contemplated by the NPA's policy. In his view therefore the Fourth
Respondent had valid reasons, based
on the legality and national
interest and policy, not to initiate an investigation. He therefore
himself acted perfectly correctly
in accepting those reasons.
11.
From
Fourth and First Respondents version, the following facts are obvious
at this stage:
11.1
the docket was examined to ascertain whether it contained sufficient
information for a so-called court-directed investigation,
ie whether
it could enable a prosecutor to make a properly informed decision
whether or not to prosecute;
11.2
the docket was therefore not considered with the view to conduct
further investigations into the alleged deficiencies and future

evidential and/or legal requirements;
11.3
First Respondent did not take the ICC Act or the Rome Statute into
account, and therefore did not even apply his mind to the
proper
context in law;
11.4
political considerations were taken into account by institutions,
which, according to law, are obligated to act independently
in the
context of the Constitution and the legislation governing their
functions, duties and obligations;
11.5
a number of the implicated torturers had in fact visited South Africa
during certain periods;
11.6
Brigadier Marion stated that a prosecutor would not have prosecuted
the facts before him, but would have directed that further

investigations be conducted. The irony is obvious: this is precisely
Applicants' point, the crux of their argument is that Respondents

were in law obliged to conduct an investigation.
12.
Applicants
Locus Standi
;
It
is necessary to describe First Applicant's role as set out in the
founding affidavit. SALC is an initiative of the International
Bar
Association and the Open Society Initiative for Southern Africa, and
it aims to provide support, both technical and financial,
to human
rights and public interest initiatives undertaken by domestic lawyers
within the Southern African region. SALC's model
is to work in
conjunction with domestic attorneys in each jurisdiction who are
interested in litigating important cases involving
human rights or
the Rule of Law. SALC supports these Attorneys in a variety of ways,
including, as appropriate, providing legal
research, training and
mentoring, and monetary support. While SALC aims primarily to provide
support on a specific case - by- case
basis, its objectives also
include the provision of training and the facilitation of legal
networks within the region. It was stated
that for obvious reasons
SALC's attention has in the recent past been directed towards the
problems in Zimbabwe, a country which
has been, and is currently
experiencing "political and economic crisis of catastrophic
proportions". Political violence
has risen dramatically and
state agents have been identified as key perpetrators of violent acts
against human rights activists,
civil society leaders, and political
opposition leaders. Of particular concern to SALC has been the
"almost total collapse
of the Rule of Law". The magnitude
of the crisis together with a corresponding failure on the part of
Zimbabwean Authorities
to introduce any mediating or reforming
measures has required that SALC consider a variety of initiatives in
support of human rights
and public interest law defenders. One such
initiative has been to utilise South Africa's implementation of the
Rome Statute ("the
ICC") to request South African
authorities to investigate and prosecute individuals in Zimbabwe who
are allegedly guilty of
torture as a crime against humanity. It is
this request and the inappropriate response thereto by the
Respondents, so it is alleged,
that is the basis of this application.
The Second Applicant is the Zimbabwe Exiles Forum. Amongst others, so
it is stated, its
object is to assist victims of human rights abuses
occurring in Zimbabwe to obtain access to justice and redress that
are ordinarily
denied them in Zimbabwe. It also provides assistance
necessary for the dignity and wellbeing of all exiles from Zimbabwe,
in particular
victims of torture, political violence and other human
rights abuses.
12.1
Accordingly, the Applicants state that they bring this application in
their own interest in terms of s38 (a) of the Constitution
of 1996,
on behalf of and in interest of the victims of torture in Zimbabwe
who can not act in their own name in terms of s38 (b)
and (c )of the
Constitution, and in the public interest in terms of s38 (d) of the
Constitution. They also bring this application
in their own interest
pursuant to their respective aims and objectives as concerned civil
society organisations. They say that
torture as a crime against
humanity is one of the most universally condemned offences, the
prohibition of which is regarded as
a norm of jus cogens under
international law (a preventary norm from which no derogation is
permitted). Because torturers are considered
on the international law
to be enemies of all human kind, the Applicants have an interest in
the prohibition of torture and the
apprehension of torturers. The
victims of torture identified in the torture docket are manifestly
vulnerable individuals who rely
on public interest groups such as the
Applicants for the protection and vindication of their rights, and
who can not (primarily
for fear of reprisal) claim in their
individual names. Because there is a continuing concern for the
safety of the victims in Zimbabwe,
confidentiality required
protection through erasing reference to their names in the
application papers. The Applicants also bring
this application in the
public interest. They say that one of the reasons why this
application is brought out of the public interest
concern is that
without effective prosecution of those guilty of torture as a crime
against humanity there is a risk of South Africa
becoming a
safe-haven for torturers who may travel here freely with impunity.
Applicants say that it is in the public interest
that South Africa
comports itself in a manner befitting this countries' status as a
responsible member of the international community,
and that it should
do so by seeking to hold accountable those responsible for crimes
that shock the conscience of all humankind,
and by fulfilling the
responsibility to protect doctrine of crimes, and acting to avert the
further commission against humanity
in circumstances where the state
is manifestly failing to protect its population. They assert the
public interest in South Africa
complying with its international and
domestic legal obligations to act against the perpetrators of
international crimes. In the
circumstances, it was submitted that the
degree of vulnerability of the people affected, the nature of the
rights said to be infringed,
the consequences of the infringement of
those rights, and the egregiousness of the conduct complained of,
make it plain that the
Applicants are entitled to bring this
application in their own interest, in the interest of the affected
individuals who are otherwise
unable to act in their own name, and
the public interest. Fourth Respondent sought to argue the
Applicants' lack of locus standi
as a first point. Because I was of
the prima facie view that such argument should not be divorced from
the proper factual context,
I decided not to hear this argument in
limine but as part of the Respondent's overall argument. Fourth
Respondent submitted that
it was understandable why the Applicants
did not rely on the provisions of s38 (e) of the Constitution: none
of the alleged victims
of the alleged crimes against humanity were
members of the Second Applicant. It was also said that neither the
First Applicant
nor the Second Applicant referred to any written
mandate or Powers-of-Attorney by any of the alleged victims of the so
- called
crimes against humanity, mandating either of the Applicants
to request an investigation or prosecution in terms of the domestic

ICC Act on their behalf. It was said that it was a principle that the
question of legal standing is not only a procedural matter,
but also
a question of substance. It concerns the sufficiency and directness
of a litigant's interest in proceedings which warrants his or her
title to
prosecute the claim asserted. An Applicant therefore had to
show that it was the rights - bearing entity, or was acting on the
authority of the entity, or that it had required its rights. In this
context reference was made to Land and Agricultural Development
Bank
of South Africa v Parker 2005 (2) SA 77 (SCA) at par 44, and Sandton
Civic Precinct Pty (Ltd) v City of Johannesburg and another
(2009) 1
All Sa 291
(SCA) at par 19. Of course, neither of these mentioned
decisions dealt with locus standi in the context of abuse of human
rights
in whatever form. Fourth Respondent also submitted that the
facts of this matter were distinguishable from any other class action

alleging an infringement of a right contained in the Bill of Rights,
for the simple reason that the persons' whose alleged interest
and
rights were affected, were all foreign nationals not present in the
Republic of South Africa. Dealing with Applicants' reliance
on the
broader approach to standing in Constitutional litigation Respondents
say that: "the Applicant has alleged neither
a threat of a
prosecution in which compelled evidence may be led against them, nor
an interest in the infringement or threatened
infringement of the
rights of other persons". Referring to further dicta of O'Regan
J. in this context, Fourth Respondent
says that it is clear that an
Applicant may acquire standing on the basis of infringement of a
right of another person, provided
that the Applicant has a sufficient
interest in the right. The real bearers of the interest and rights in
the circumstances of
this matter were the alleged victims of the so -
called crimes against humanity, who were all foreign nationals not
present in
the Republic. In this regard, they say, it behooves no
argument that the Constitution and more specifically the Bill of
Rights
contained in the Constitution can not be applied
extraterritorially, and conversely can also not be relied upon by
foreigners not
present in the Republic of South Africa, or for that
matter anyone acting on their behalf. In this context reliance was
placed
on the judgment in Kaunda and Others v President of the
Republic of South Africa and Others
2005 (4) SA 235
(CC) where it was
stated in par 32 that the fact that the State was required to
respect, protect, promote and fulfill the rights
in the Bill of
Rights, did not mean that the rights under our Constitution attached
to them when they were outside of South Africa,
or that the State has
an obligation under s7 (2) of the Constitution to respect, protect,
promote and fulfill the rights in the
Bill of Rights which extends
beyond its borders. Those were different issues which depend in the
first instance whether the Constitution
can be construed as having
extra-territorial effect. Fourth Respondents then referred to par. 36
of the judgment where the following
was said; "the starting
point of the enquiry into extra-territoriality is to determine the
ambit of the rights that are the
subject matter of s7 (2). To begin
with two observations are called for. Firstly; the Constitution
provides the framework for the
Government of South Africa. In that
respect it is territorially bound and has no application beyond our
borders. Secondly, the
rights in the Bill of Rights on which reliance
is placed for this part of the argument are rights which vest in
everyone. Foreigners
are entitled to require the South African state
to respect, protect and promote their rights to life and dignity, and
not to be
treated or punished in a cruel, inhuman or degrading way
while they are in South Africa. Clearly, they lose the benefits of
that
protection when they move beyond our borders. In the same
judgment the extraterritoriality of international law was discussed,
and reference was made to the principle that State may not exercise
its authority in any form in the territory of another state.

Accordingly, so it was argued, that viewed from whatever perspective,
the alleged victims of the alleged crimes could not rely
on any of
the provisions of the Constitution in absentia, and the Applicants
could conversely not rely on any infringement of interests
or rights
under the domestic ICC Act, either in their own interest or on behalf
of any of the alleged victims. It was therefore
submitted that the
Applicants could not allege or assume any "interest in the
rights of persons who had attained no rights
under our Constitution,
for want of those persons presence in the republic of South Africa.
It was accordingly submitted that the
Applicant's reliance on a
variety of case law in support of their professed standing in terms
of s38 of the Constitution was misplaced,
as all of those judgments
related to representative litigation on behalf of persons or members
of the public present in South Africa.
One of these cases is Kruger v
President of the Republic of South Africa
[2008] ZACC 17
;
2009 (1) SA 417
(CC).
12.2
A number of questions that had to be answered, although this was not
easy, were those posed in Independent Electoral Commission
v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) at par 15. Section 38
(b)-(e) manifestly went beyond common law rules of standing, and such
extension accorded with constitutionalism.
One could however ask
whether a person bringing a constitutional challenge as a member of,
or in the interests of, a group or class
of persons required a
mandate from members of the group or class, what it is that
constituted that class or group, what would be
the nature of the
common factor, and what entitled someone who is not a member of the
group or class to act on behalf of those
who are i.e must such person
demonstrate some connection with the member or some interest of the
outcome of the litigation, what
should be the nature of such
"connection" or "interest" and in what way if at
all must the "interest"
differ from that envisaged in s38
(a). The Applicant was then also criticized for not following the
approach formulated by Traverso
DJP in First Rand Bank Limited v
Chaucer Publications Pty (Ltd)
2008 (2) SA 592
(CC) and that
Applicants would not have succeeded in such an application to
establish the necessary locus standi to institute a
class action for
the following reasons;
1.1
It was clear that the decision sought to be reviewed by the
Applicants is a decision not to investigate alleged crimes committed

under the domestic ICC Act. It follows logically that the only
persons whose rights may be adversely affected by this decision
are
the alleged victims of the crimes;
1.2
The decisions sought to be reviewed by the Applicants did not affect
any of the Applicants' rights derived from the domestic
ICC Act;
1.3
The decision sought to be reviewed can not be said to have adversely
affected the rights of any of the alleged victims and which
had a
direct and external legal effect, whether in violation of the PAJA
rights, s237 and s195 of the Constitution rights, or the
principle of
legality, for the simple reason that the alleged victims were all
foreign nationals not present in the Republic. (This
was said in the
context of the definition of "Administrative Action" in
PAJA).
1.4
In any event, the Applicants' rights, whatever they may be, and the
alleged victim's rights were not similarly affected. There
was
therefore no common interest which related to the alleged
infringement of a fundamental right as required by s38 of the
Constitution.
Applicants could not and can not rely on any of the
rights in the Bill of Rights in their own interest, or for that
matter can
they also not rely on any of the other provisions
contained in the Constitution. Not even s195 of the Constitution
obliges any
of the Respondents towards any foreign national not
present in South Africa.
13.
In
their argument the Applicants dealt with Respondents points in
limine, and in the context of locus standi stated that the
Respondents'
objection to the Applicant's standing confirmed the
Respondents' capricious approach to the Applicants, as well as their
failure
properly to understand the law and issues relevant to this
application. They say that Applicants' argument relating to the
applicability
of the Constitution confirms their unfortunate failure
to understand the very statute which governs their conduct in this
application,
namely the ICC Act. In order to give affect to the
principle of universal jurisdiction, and to confer jurisdiction on
domestic
courts for international crimes, the ICC Act deems that all
crimes contemplated by that Act, wherever they may occur, are
committed
in South Africa. Therefore it was legally irrelevant that
the victims were tortured in Zimbabwe, because the ICC Act requires
that
they are to be regarded as having been tortured in South Africa.
The Constitution, and its protections, therefore must be considered

as extending to victims of the alleged torture raised in the torture
docket. Respondents' approach, according to this argument,
would lead
to the untenable situation that it would deny victims of
international crimes standing in South African proceedings,
and would
shield decision-makers, like the Respondents, from accountability
when faced with making decision regarding prosecutions
of
international crimes that had occurred outside South Africa. This
would make a mockery both of the universal jurisdiction principle

endorsed by Parliament when enacting the ICC Act, as it would render
the legislative provisions redundant, as well as the principle
of
accountable governance to which the Constitution commits South
Africa. This could not have been the intention of the legislators
or
of the Constitution drafters. The application also concerned a review
in terms of PAJA. As this legislation gave effect to the

constitutionally protected right to administrative justice, protected
in s33 of the Constitution, section 38's provisions regarding

standing should be read into PAJA. Applicants also argued that the
courts have accepted that in light of the need to give effect
to the
Constitutional values, and because s38 of the Constitution has
created new and different grounds of locus standi, the approach
to
standing when dealing with constitutional issues must be broader than
the traditional approach under the common law. See in
this context
Ferreira v Levin supra par 230 and Kruger supra at par 23. In
Ferreira v Levin (atpar 226) O'Regan J said that (in
the context of
s7 (4) of the interim Constitution) a person may have an interest in
the infringement or threatened infringement
of the right of another,
which would afford such person the standing to seek Constitutional
relief. The Constitution required a
broader approach to standing and
I therefore respectfully agree with that approach, which differs from
the more narrow interpretation
followed by Ackerman J, in that case.
Applicants argue that SALC's mandate is to provide support, both
technical and financial,
to human rights and public interest
initiatives undertaken by domestic lawyers within the Southern
African region. The magnitude
of the crisis in Zimbabwe and the
failure on the part of Zimbabwean authorities to introduce any
ameliorating or reforming measures
has required that SALC consider a
variety of initiatives in support of human rights and public interest
law defenders. SALC was
accordantly not barred from bringing an
application in its own interest, namely an interest in ensuring
investigations and prosecutions
of those suspected of having
committed crimes against humanity. SALC acted in its own interest
when it compiled the torture docket,
and thereafter submitting it to
the Second Respondent. The Second Applicant has an organisational
mission to combat impunity and
achieve justice for victims of human
rights violations in Zimbabwe. In order to achieve this, it monitors,
documents and researches human
rights violations of Zimbabweans in
exile in South Africa, and assists victims to obtain access to
justice and redress for these
violations that it denied them in
Zimbabwe. One way in which they do this is facilitating the
prosecution of the perpetrators at
the regional and international
level. They therefore have a clear own interest in this application.
The litigation presently before
this court was the first of its kind
in South Africa. Advocate Ackerman SC on behalf of the Second
Respondent had explained to
Advocate Mpshe SC (at one stage) the
novelty and public importance of the torture docket. The Applicants
had a clear standing in
the public interest in this particular
context. See Lawyers for Human Rights v Minister of Home Affairs
[2004] ZACC 12
;
2004
(4) SA 125
(CC) at par 15. In Albutt v Center for the Study of
Violence and Reconciliation and Others 2010(
3) SA 293
(CC), Ngcobo CJ
accepted that the governmental organisations that had brought the
challenge of the granting of amnesty to various
prisoners had
standing in their own interest and in the public interest. The
learned Chief Justice (at par 33­34) held that
our Constitution
adopts a broad approach to standing, in particular when it comes to
the violation of the rights in the Bill of
Rights. Civic
organisations would also have an interest in ensuring compliance with
the Constitution and the Rule of Law. The broad
approach to standing
in this context was also recently followed by the Supreme Court of
Appeal in the decision of Democratic Alliance
and Others v The Acting
National Director of Public Prosecution and Others
(2012) ZASCA 15
(20 March 2012). In Lawyers for Human Rights (supra) Yacoob J set out
the criteria to be met when courts are seized with the question
of
whether a party does, in fact, act in the public interest. The
enquiry would examine whether the application involves alive,
rather
than abstract issues; the nature of the infringed right and the
consequences of the infringement; relief sought and whether
it would
be of general and prospective application; the range of persons who
may be affected by a court order, the vulnerability
and whether they
had the opportunity to present evidence and argument to the court;
and whether there is an alternative, reasonable
and effective manner
in which the challenge could be brought. Applicants accordingly
submitted that they had met all of these criteria
elucidated by
Yacoob J. The complainants of the torture have had their rights to
dignity and freedom and security of the person
violated in the most
egregious manner; and they have been placed in an extremely
vulnerable position because of the lack of avenues
in Zimbabwe
through which to challenge their rights infringements, and to ensure
future protection. Applicants argue that the conduct
of the
Respondents in choosing not to investigate the evidence presented by
the First Applicant is in disregard of South Africa's
domestic and
international obligations, and the consequences thereof are grave for
the ideals of accountability and transparency
in the south African
public administration, particularly in respect of conduct that the
international community has labeled "crimes
against humanity".
In line with this argument therefore they submitted that a number of
groups are affected by the impugned
decisions:
13.1
The Applicants, whose rights to have the decision made lawfully and
in accordance with Constitutional and statutory obligations
has been
infringed;
13.2
The victims of the alleged torture, who have been denied the
opportunity to see justice done;
13.3
The general South African public, who deserved to be served by a
public administration that abides by its national and international

obligations. It was also in the public interest that South Africa
comports itself in a manner befitting this countries' status
as a
responsible member of the international community, and this would be
done by seeking to hold accountable those responsible
for crimes that
shock the conscience of all human kind. By initiating an
investigation into the allegations of torture the Respondents
could
ensure that the individual obligations were met in this regard. The
decision not to do so is effectively a shirking of these

responsibilities, and therefore is of concern to the South African
public. The public clearly has an interest to the manner in
which
public officials discharge their duties under this legislation.
13.4
A number of decisions of the Constitutional Court and that of the
Supreme Court of Appeal dealing with the concept of locus
standi in
the context of constitutional litigation are quite clear; a broad
approach is required. Fourth Respondent's argument
was that these
decisions are distinguishable on the basis that none of the victims
were South Africans or even present in South
Africa. I agree however
with the Applicants' contentions that the decisive factor in the
present context is the ICC Act. In the
present instance the quality
of locus standi has to be decided, not by mere reference to prior
decisions of the Constitutional
Court and the Supreme Court of
Appeal, which both adopt a broad approach in constitutional
litigation, but more importantly in
the context of the Rome Statute
and the domestic Act of 2002, the ICC Act. The former emphasises in
its preamble that it is the
duty of every state to exercise its
jurisdiction over those responsible for intentional crimes. In the
preamble to the ICC Act,
Parliament committed South Africa, as a
member of the international community, to bringing persons who commit
such crimes to justice
under South African law where possible. The
Act, read in the context of its purpose and Rome Statute, seems to
require a broad
approach to traditional principles of standing.
Section 3(d) read with s2 requires the High Courts of South Africa to
adjudicate
cases brought by persons accused of a crime committed in
the Republic, and even beyond its borders in certain circumstances.
The
relevant international imperative must not be lost sight of, and
the Constitutional imperative that obliges South Africa to comply

with its relevant international obligations. The complimentarity
principle referred to in Article 1 of the statute must also not
be
lost sight of in this context. This states that the ICC has
jurisdiction complementary to national criminal jurisdictions.
Section 4(3) of the ICC Act is also relevant, as it goes beyond
"normal" jurisdictional requirements. In the context of
the
purpose of that Act, s3 requires that a prosecution be enabled as far
as possible. Seen holistically therefore, all the mentioned

provisions place an obligation on South Africa to comply with its
obligations to investigate and prosecute, crimes against humanity

within the ambit of the provisions of s4(3) of the ICC Act, and it is
in the public interest that the State does so. In the context
of that
Act it is not decisive that the crimes contemplated by that act were
not committed in South Africa. Section 3 of the South
African statute
makes this abundantly clear in my view, and I therefore hold that
Applicants have locus standi in the litigation
before me. It is my
view that the Applicants are entitled to act in their own interest in
the present context, and also in the
public interest in particular.
They do not have to be the "holders" of any human rights
themselves. They certainly have
the right, given their attributes, to
request the state, in the present context, to comply with its
international obligations on
behalf of those who cannot do so, and
who are the victims of crimes against humanity. 13.5 On behalf of
Applicants Mr. W Trengrove
SC argued that the First Applicant was the
complainant. It did not have to show that its own interest had been
affected. Respondents
had not made a "proper" decision, ie
not one made according to law. In any event, there had been no
"proper"
decision, and Respondents were in law obliged to
uphold international documents. Furthermore, First Respondent said
the following
in its written argument: "As far as the First
Applicant is concerned it has an interest in torture, the Rome
Statute and the
situation in Zimbabwe. We submit that once a proper
decision has been made in respect of its request it ceased to have
any further
interest greater than that of the ordinary member of the
public" It should be obvious, I must say at this stage, that
whether or not a "proper" decision has been made,
is
precisely the issue herein. The public interest element is the crux
here in any event. In Kruger supra (par 23), s38 of the
Constitution
was also not directly applicable, in that no infringement of any
human right had been alleged. Nevertheless a generous
approach to
standing was adopted. In Bio Energy Africa Free State (Edms) Bpk v
Freedom Front Plus 2012 (2) SA par 15, the full
bench of that court
stated that it seemed evident that the Constitutional Court had given
an extended interpretation to s38 to
incorporate violations of, and
threats to all the rights, obligations, values and principles
contained in the Constitution committed
by public bodies or public
officials. This would include any executive or administrative act or
conduct of any organ of state.
In Albutt supra, the learnerd Chief
Justice granted the Applicant NGO standing on the basis that a
particular process had to comply
with the Constitution and the Rule
of Law. Also, the victims of that process had been unable to seek
relief themselves. I must
add that the court also held that it was
axiomatic by then that the exercise of all public power meant
complying with the Constitution,
which is the supreme law, and the
doctrine of legality, which is part of the Rule of Law. See also:
Democratic
Alliance
v Ethekwini Muncipality
2012 (2) SA 21
SCA. (I will return to this
topic hereunder). In the context of standing, I was also referred to
Freedom under Law v Acting Chairperson
Judicial Service Commission
and Others
2011 (3) SA 549
SCA at par 21 with reference to the public
interest element, and Justice Alliance of South Africa v President of
the Republic of
South Africa and Others
2011 (5) SA 388
(CC) at par
17.
One
of the public interest facets therein was the protection and
advancement of the understanding of, and respect for the Rule of
Law
and the principle of legality. Mr Trengrove SC also referred me to
the decision of the Supreme Court of Canada cited as Canada
(Justice)
v Khadr
2008 SCC 28.
This was done in the context of the Fourth
Respondent's written argument that the Bill of Rights contained
therein cannot be applied
extraterritorially, and conversely could
not be relied upon by foreigners not present in the Republic of South
Africa, or for that
matter anyone acting on their behalf. In that
case, a Canadian government organization "interviewed" Mr.
Khadr at the
notorious prison in Guantanamo Bay (Cuba) and shared the
contents of that "interview" with American authorities. He
sought
an order that the government be required to disclose to him
all documents in their possession relevant to the charges he was
facing,
for the purpose of his defence. Had the process been in
Canada, he would have been entitled to full disclosure of information
in
the hands of the government under s7 of the Canadian Charter of
Rights and Freedoms. The Federal Court of Appeal applied such
principle
and ordered disclosure. On further appeal the government
had argued that this constituted an error, because the Charter did
not
apply to the conduct of Canadian agents operating outside Canada.
The argument was based on international law principles against

extraterritorial enforcement of domestic law and the principle of
comity, which implies acceptance of foreign laws and procedures
when
Canadian officials were operating abroad. With reference to R v Hope
[2007] 2 S.C.R 292
,
2007. SCC 26
, the court referred to an important
exception nl. that comity could not be used to justify Canadian
participation in activities
of a foreign state or its agents that are
contrary to Canada's international obligations. It was held therein
that the defence
required by the principle of comity "ends where
clear violations of international law and fundamental human rights
begins".
The court also held that in interpreting the scope and
application of the Charter, the courts should seek to ensure
compliance
with Canadian's binding obligations under international
law. In Khadr it therefore held that if the Guantanamo Bay process
under
which he was being held was in conformity with Canada's
international obligations, the Charter had no application, and his
application
for disclosure could not succeed. However, if Canada was
participating in a process that was violating Canada's binding
obligation
under international law, the Charter applied. The
detention and trial of Mr. Khadr at the time of the "interview"
constituted
a clear violation of fundamental human rights protected
by international law, and Canada had been a signatory to for Geneva
Considerations
of 1949 which had been incorporated into Canadian law.
The Charter applied to the extent that the conduct of Canadian
officials
invoked it into a process that violated Canada's
international obligations. The decision seems particularly apposite
in the present
case, and I adopt its reasoning. I agree with the
Applicants' argument that a number of groups are affected by the
impugned decision
nl. the Applicants' rights to have the decision
made lawfully and in accordance with constitutional and statutory
obligations has
been infringed, the victims of the torture who had
been denied the opportunity to see justice done, and the general
South African
public who deserve to be served by a public
administration that abides by its national and international
obligations. The public
clearly has an interest in a challenge to the
manner in which public officials discharge their duties under the
relevant legislation.
14.
Reviewability
of the decision of Fourth Respondent
:
On
behalf of First Respondent it was submitted that in the context of
reviewability in terms PAJA, the courts have applied the following

tests when reviewing administrative action;
14.1
Where the action related to a point of law, the test of correctness
was applicable;
14.2
Where the action related to an issue of fact, the test was one of
reasonableness. In this context reliance was placed on Bato
Star
Fishing Pty (Ltd) v Minister of Environmental Affairs and Tourism and
Others
2000 (4) SA 490
(CC) at par 25 and 26; Minister of Health and
another v New Clicks SA Pty (Ltd) and Others
2006 (2) Sa 311
(CC) at
par 95 to 96. It was submitted that the issue of the NPA powers and
the interpretation of the mutual legal assistance instruments
were
legal issues, and the other grounds were factual. It was pointed out
that Counsel for the First Applicant had submitted in
their heads of
argument that the institution of an investigation and prosecution was
a discretionary power. The court should be
less inclined to interfere
with the exercise of a discretionary power as opposed to failure to
comply with a positive duty. In
the present matter the decision not
to institute an investigation was taken by the Fourth Respondent, and
not the First Respondent.
In accepting this decision, Advocate Mpshe
SC exercised a prosecutorial discretion, and the exercise of such
discretion would be
rarely set aside on review. In Grey's Marine Hout
Bay Pty (Ltd) and Others v Minister of Public Works, the court held
(at par 23
to 24) that properly interpreted, "administrative
action" is action that has the capacity to effect legal rights.
See
also Oosthuizen Transport Pty (Ltd) and Others v MEC,
Road
Traffic Matters Mpumalanga and Others
2008 (2) SA 570
(T) at par 29.
In Steenkamp NO v The Provincial Tender Board of the Eastern Cape
2007 (3) SA 121
(CC), the
Constitutional
Court in referring to the mentioned Grey's Marine decision, stated
that administrative action applied where a decision
" materially
and directly affected the legal interest or rights" of persons.
The relevant refusal decision herein accordingly
clearly effects and
has a capacity to affect the Applicants' legal interest or rights, so
it was argued on behalf of the Applicants.
In any event the
Applicants submitted that an incisive debate on this topic was not
necessary in as much as they sought reviewability
also under the
"safety - net" that is the principle of legality. The
guarantee of the Rule of Law in s1 (c ) of the Constitution,
is
constitutionally justiciable. Conduct which falls foul of the
principle of legality is liable to be set aside .See Fedsure Life

Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
1991 (1) SA 374
(CC) par 56 to 59, President or Republic v
South African Rugby Football Union 2000(1) SA 1 (CC) at par 148; 14.3
The exercise of
all public power must comply with the Constitution,
which is the Supreme Law, and the doctrine of legality, which is part
of the
Rule of Law. In the present context, Applicants say that the
well-motivated and compelling request contained in the torture docket

meant that the Applicants had a right to have their request properly
considered by the Respondents, and decided upon rationally,
in good
faith, and in accordance with the principle of legality. In the
context of this case, the Rule of Law and the principle
of
accountability that is part of it, together meant not only that the
Respondents were obliged to accept and properly consider
the torture
docket, and to do so timeously. It also meant that the Respondents'
response to the torture docket had to be performed
with due respect
for the enabling law applicable to their functions, and with respect
for the values of the Constitution and South
Africa's weighty
international law obligations to take effective action against
perpetrators of the most serious crimes against
humanity.
15.
Applicants
submitted that South Africa, through its ratification of the Rome
Statute and subsequent domestication thereof through
the ICC Act,
assumed a number of binding obligations. Parliament's intention in
this respect was unambiguous; namely that South
Africa had committed
itself to the investigation and prosecution of serious international
crimes.
These
obligations were imposed both in terms of international law and South
African law. In this regard the Respondents, as a responsible

officials for the proper administration and enforcement of the ICC
Act, in failing to initiate an investigation, thereafter attempting

to justify their decision on the basis of material errors or fact and
law, and through taking into account irrelevant factors and
failing
to consider relevant ones, have flouted both their domestic and
international obligations. Accordingly, and in failing
to discharge
their obligations, the Respondents individually and collectively have
rendered their conduct susceptible to review
on a number of grounds,
either under PAJA or the principle of legality. Respondents failed to
discharge their individual and or
collective responsibility to
initiate, manage and direct an investigation in a co-operative manner
as envisaged by the ICC Act,
and legally required in terms of the NPA
Act and SAPS Act, as read with the Presidential Proclamation relating
to the Second Respondent.
It was submitted that the reasons filed by
the Respondents together with their answering affidavits confirmed
that they had failed
to apply their mind seriously to their
obligations under the ICC Act, and to have wholly misunderstood the
nature of that Act and
their duties hereunder.
16.
In
terms of s 6 (2) (d) of PAJA, a court is empowered to judicially
review an administrative action which was materially influenced
by an
error of law.
See
City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
2010 (6) SA 182
(CC) at par 91.
In
the present case the Respondents' refusal decision was rooted in
material errors of law as a result of the;
16.1
individual or collective failure of the Respondents to act in
accordance with their international and domestic obligations
when
seized with the First Applicant's request;
16.2
the failure of the First and Second Respondents to manage and direct
the investigation in accordance with the ICC Act read
with the SAPS
Act and the NPA Act. The answering affidavit of these Respondents
contained ex post facto attempts to justify their
decision not
initiate an investigation, which reasons were contrary to the views
expressed by the Second Respondent at one stage.
It is convenient to
mention at this stage that the Second Respondent belatedly filed an
answering affidavit on 22 March 2012. He
gave the reasons for the
late filing thereof, and I was of the view that it would be the
interests of justice that this affidavit
be accepted and considered.
An answering affidavit was filed, and it appeared that he had a
change of heart in the sense that he
had raised the same concerns
that the Fourth Respondent had. I do not intend on dealing with that
issue any further, but there
is no acceptable evidence for the
suggestion that Adv. Macadam SC had improperly attempted to muzzle
his views. The Second Respondent
is mandated under s 13 (1) (c ) of
the NPA Act to manage and direct the investigation and prosecution of
the Rome Statute crimes.
At one stage he had been of the opinion that
the Fourth Respondent should at least have opened the docket and
commenced with an
investigation. He had not been satisfied with the
reasons advanced by the Fourth Respondent. He stated in his affidavit
that after
considering the following; (during May 2009)
a.
the relevant law;
b.
the facts presented by the SALC;
c.
the seriousness of the crime;
d.
the practical difficulties that the SAPS may encounter in the
investigation of the case;
e.
the international obligations imposed on South Africa to prosecute
crimes against humanity;
f.
the appreciation that South Africa should not be accused of
being"unwilling or unable to investigate Rome Statute crime,
he
was of the view that an investigation was justified. Political
consequences were not taken into consideration when he requested
the
Fourth Respondent to investigate the matter. In his view at that
stage he would have expected SAPS to do at least the following;
g.
to register a complaint and/ or open a docket and or an
investigation;
h.
to assign an investigating officer to attend to the complaint/
investigation;
i.
to liaise with the First Applicant and to discuss the difficulties
which the SAPS encountered or may encounter;
j.
to obtain witness' statements and evidence as far as possible and
file them in the docket;
k.
to approach the Second Respondents for guidance on the difficulties
encountered with the investigation;
l.
to submit the docket to the NPA for a decision on whether or not to
prosecute, he was of the view that these were the usual steps
that
had to be taken by the SAPS when receiving a complaint. This in
essence ensured that the proper administration of justice
was seen to
have been done. In the present context this view was correct, and the
other Respondents should have adopted it.
17.
Applicants
argued that First Applicant's organisational mandate was to support
human rights and public interest lawyers in the region
to obtain
justice for victims of human rights violations. The decisions not to
initiate an investigation therefore directly and
adversely affected
its rights by hampering the achievement of their objective. The
decisions therefore fall within the ambit of
the definition of
"administrative action" in PAJA. The decision also had the
capacity to adversely affect the rights
of victims. First and Fourth
Respondents in turn argued that PAJA was not applicable on the facts.
18.
Applicants
themselves, as I have pointed out, submitted that an incisive debate
of this topic was not necessary, inasmuch as I ought
to decide the
issue in the context of the principle of legality. I agree with that
approach. The principle of the legality is the
light-house. If I
uphold the review under that heading, I need not decide whether
grounds of review exist in terms of PAJA. In
any event some of the
grounds referred to I s6(2) of the Act derive from the principle of
legality and there is substantial overlapping.
I respectfully agree
that sound judicial policy requires the court to decide only that
which is demanded by the facts of the case
and which is necessary for
its proper disposal. This is particularly so in constitutional
matters. See Albutt supra at par. 82.
19.
I
have already referred to the principle of legality that all public
power must be exercised lawfully, rationally and in good faith.

Minister of Health and Another v New Clicks South Africa (Pty) Ltd
and Others
2006 (2) SA 311
(CC) par 79, Fed sure Life Assurance Ltd
at par 56-59, Pharmaceutical Manufacturers Association of South
Africa and Another: in
re: ex parte President of the Republic of
South Africa and Others
2010 (2) SA 674
(CC) at par 83-85 and Rail
Commuters Action Group v Transnet Ltd T/A Metro Rail
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at par 75. In this case O'Regan J, for a unanimous bench,
addressed the value of government accountability contained in various

sections of the Constitution. The affect of the principle of legality
is that any conduct which transgresses it, falls to be set
aside.
20.
20.1
In the context of the relevant legislation Applicants submitted that
their well-motivated and compelling request contained
in the torture
docket meant that the Applicants had a right to have their request
properly considered by the Respondents and decided
on rationally, in
good faith, and in accordance with the principle of legality. The
Respondents therefore had to apply their minds
to the request
properly, and obviously contextually. Applicants stated in their
written heads of argument that, having regard to
Respondents'
answering affidavits, there was a well-founded apprehension that they
had not acted in good faith, but had instead
adopted a carping,
defensive, and evasive position to avoid their duties in law. I do
not for purposes of this judgment intend
to go into this topic in any
great detail, but Applicants' comments in this regard seem to be well
justified. For instance, Applicants'
bona fides were attacked, they
were accused of publicity seeking, and almost reprimanded for daring
to place an undue burden, which
was an obvious waste of time, on
them. These attacks herein were in my view unfortunate and
unjustified, as they did not address
the real crux of the case nl.
whether the Respondents' response to the torture docket had been
performed with due respect for the
enabling law applicable to the
functions, and with the respect for the values of the Constitution
and South Africa's international
law obligations.
21.
The
Powers of the NPA, SAPS, and Head of the Priority Crimes Litigation
Unit;
the ICC Act
;
I
have already referred to the preamble. I have also referred to the
definition of "a crime against humanity". I have
mentioned
the objects of the Acts, amongst others s3 (d), which refers to such
a crime having been committed in the Republic but
also "beyond
the borders of the Republic" in certain circumstances. Chapter 2
of this Act deals with jurisdiction of
South African courts in
respect of crimes, and makes a crime against humanity a crime under
South African domestic law. Section
4(1) has no requirement of
presence. I will deal with the provisions of s4 (3) (c ), and the
relevant argument in connection therewith
in a separate paragraph
hereunder.
Section
5(1) states that no prosecution may be instituted against a person
accused of having committed a crime without the consent
of the
National Director of Public Prosecutions. His consent is clearly not
required when the Fourth Respondents institute an investigation.
22.
The
National Prosecuting Authority Act 32 of 1998
as amended
;
I
have referred to some of the provisions of this Act as amended in
paragraph 1.2 supra. The docket was hand delivered to Second

Respondent on 14 March 2008. At that time the 1998 Act was still in
existence, and the Amendment Act 57 of 2008 only came into
operation
on 6 July 2009, ie : after the impugned decisions. The new structure
introduced by that Act must be considered when I
make an order It is
at the present time, for purpose of this order, not affected by the
judgement in Glenister v President of the
Republic of South Africa
[2011] ZACC 6..
First Respondent pointed out that in March 2008, the
only investigating directorate in existence was the directorate of
special
operations ("DSO" or "Scorpions"). They
say that already as at 8 May 2008 the draft bill had been published

for the Scorpions' disolution. (see Government Gazette no. 31037 of 8
May 2008). They say that it would have been illogical to
refer a
complex investigation to a structure that was in the process of
disbanding. Section 7 of the unamended Act provided for
these
investigation directorates, and in s24 referred to the powers, duties
and function of directors. Section 24(1)( c) stated
that a director
had the power to "supervise, direct and co-ordinate specific
investigations".
In
the context of the NPA Act, s179 of the Constitution and the
Prosecution Policy that I have already referred to, First Respondent

argued that none of these documents authorised the Second Respondent
to initiate investigations or for the First Respondent to
do so
itself, in respect of crimes falling within the mandate of Second
Respondent. In March 2008 the limited investigative power
conferred
upon the NPA by virtue of the NPA Amendment Act 61 of 2000, was
located solely in the investigating directorates referred
to in s7 of
NPA Act. The Second R espondent was not appointed as an investigating
director in terms of s7, and could not exercise
these powers. In fact
therefore, the only investigating directorate in existence in March
2008 was the directorate of special operations,
the so called
"Scorpions". s24 (1) (c ) also did not confer upon any
director of public prosecution the power to initiate
investigations.
First Respondent therefore argued that the lack of a legal basis to
initiate investigations was confirmed by s24
(7) of the Act, which
states that when a director is considering the institution of a
prosecution, and is of the opinion that a
matter connected therewith
requires further investigation, he must request the Provincial
Commissioner of Police for assistance
in the investigation of that
matter. That commissioner was required, in as far as practical, to
comply with their request. The
relevant Presidential Proclamation
mandating the Second Respondent to manage and direct investigations
and prosecutions must be
interpreted in terms of that legislation.
First Respondent emphasises, in that context, that the Proclamation
did not empower him
to initiate investigations. Accordingly, First
Respondent submitted that a decision by a member of the NPA to
initiate a criminal
investigation in the absence of a legal provision
authorising such, would render that investigation null and void. In
that context
reliance was placed on Powell NO and Others v van der
Merwe NO and Others
2005 (1) SACR 317
(SCA) at par 22-23.
23.
There
was also another very valid reason why the NPA should not initiate
investigations, and I was referred to s205 (3) of the Constitution.

This provision defines, inter alia, the objects of the Police Service
to investigate crime, and to uphold and enforce the law.
The NPA, in
initiating investigations without any legal basis, would be usurping
the constitutional mandate of SAPS. I was also
referred to du Toit
Others, Commentary on the Criminal Procedure Act at 1-4l to 1-4m
where the different roles of the SAPS and
the NPA were discussed.
Amongst others it was stated that an initial investigation was or
would be conducted by the Police, and
that the prosecutor, himself,
did not in principle actively participate in any investigative work.
Accordingly it was submitted
that the First Respondent had correctly
referred the request for the initiation of an investigation to the
Fourth Respondent. The
issue of the Second Respondent or the First
Respondent initiating the investigation was now of purely academic
interest in that,
having regard to the
South African Police Service
Amendment Act 57 of 2008
and the
National Prosecuting Authority
Amendment Act 56 of 2008
, the DSO had been dissolved, and the
Directorate for Priority Crimes Investigation came into effect on 6
July 2009, which was some
five months before the Applicants lodged
this application, and after the decision not to institute an
investigation had been taken.
Therefore, none of the investigating
directorates referred to in s7 of the NPA Act were in existence, and
consequently there is
now no legal provision to enable the NPA to
initiate investigations. It also appeared from Schedule 1 of the
amended SAPS Act,
that the offences created in terms of the domestic
Rome Statute fell within the mandate of the said Directorate for
Priority Crime
Investigation. Section 17D(3) of the amended Act took
away the power of the NPA to initiate investigations in respect of
such offences.
This Presidential Proclamation establishing Second
Respondent had not been recalled, and it must therefore as from 6
July 2009
be considered to be the dedicated component of prosecutors
in respect of the domestic Rome Statute offences. It was submitted
that
in the light of the above mentioned, the contention that
Applicants maintain that it was the responsibility NDPP and/ or the
Second
Respondent to initiate an investigation, was bad in law. The
Rome Statute, according to First Respondent, also contained no
provision
which could be cited for authority for either the NDPP or
any other member of the NPA to initiate an investigation.
24.
The
Presidential Proclamation relating to the Second Respondent was made
under s13(1)(c ) of the NPA Act. Advocate Ackerman SC was
appointed
as Special Director of Public Prosecutions and "to exercise the
powers, carry out the duties and perform the functions
necessary,
within the office of the National Director of Public Prosecutions as
directed
by the National Director and-
a.
in particular, to head the Priority Crimes Litigation Unit and to
manage and direct the investigation and prosecution of crimes

contemplated in the implementation of the Rome Statute of the
International Criminal Court Act 2202 (Act no. 27 of 2002)".
Mr
W Trengrove SC relied on the specific wording of this proclamation,
and also that of s7 of the NPA Act, and in particular to
s7 which
referred to criminal activities committed in an organised fashion. A
crime against humanity fell within that type of crime
by definition.
It was therefore his submission that the mentioned Scorpions at the
time had the power to investigate crimes against
humanity, and that
the First Respondent was in control, in that context, in terms of s22
(1) of the NPA Act. It must be remembered
it had been contended by
the First and the Second Respondents that they had never made a
decision not to investigate as this decision
had been made by the
Fourth Respondent.
25.
Mr
W Trengrove SC argued that all of the Respondents' arguments were
untenable:
Firstly,
they ignored the legal obligations of Second Respondent to "manage
and direct investigations" of crimes contemplated
in the ICC
Act, and secondly, they demonstrated, on the Respondents' own
version, that they had not made a decision, but had abdicated
their
legal duties by unlawfully placing the responsibility on the Fourth
Respondent. Mr W Trengrove SC accordingly submitted that
the
designation of international crimes as " priority crimes",
the establishment of dedicated units to investigate and
prosecute
them, and the weight given to investigation in priority crimes in the
various policies, made it clear that the nature
of these crimes
necessitated, and do necessitate, a multi-disciplinary approach that
recognises the complicity of investigations
and prosecutions, and
which required the First and Second Respondents to play a guiding
role in respect of such investigations.
Furthermore, such involvement
by a prosecuting authority in the investigation of international
crimes was common place. The Respondents
themselves, in the answering
affidavits referred to such special investigative units in many
countries in Europe, as well as in
Canada and the United States. The
rationale for the establishment of such special units was that
serious international crimes required
specialised investigative
approaches, knowledge of international crimes and international
criminal law. South Africa was no different
in this respect.
Acknowledging the need to ensure that cases of this nature were dealt
with properly, South Africa identified the
Second Respondent as the
unit that possessed the necessary expertise to manage the
investigations and prosecute serious international
crimes.
Additionally, the specialist investigating directorate was the unit
within the NPA to assist in the investigation of international

crimes. Also, the South African Prosecution Policy in part 8 required
the NPA to co-operate and interact with the Police and other

constituent agencies. In any event, it was argued on behalf of the
Applicants that it was obvious that if the First Respondent
had the
power to prosecute priority crimes, then it would have the necessary
and incidental powers to do whatever was necessary
to achieve that
purpose, which would include the power to investigate. In the present
context that may be so, but not generally,
it seems. See Glenister
supra at par 76-77. Applicants therefore submitted that in relation
to South Africa and the mandate of
Second Respondent, the use of the
term "manage and direct" in the relevant Proclamation,
clearly captured the legal and
practical requirement imposed upon its
Head, nl, of meaningful engagement and involvement alongside the SAPS
in the investigation
of ICC Act crimes. Having regard to objects of
that Act, there could be no doubt that the power incidental to or
necessary for
the achievement of the ICC Act's purposes includes the
power of the PCLU to engage in investigation particularly in the
multi-disciplinary
manner envisaged under the SAPS Act and the NPA
Act. The First Respondent's contention that the Rome Statute did not
provide the
Second Respondent or himself with any power to initiate
an investigation was therefore materially flawed. It ignored the
special
status according to international crimes, and the need for
special procedures to be developed and adopted, and it ignored the
very
clear terms of the SAPS Act that had to be read together with
the ICC Act and which, as was said, required multi-disciplinary
approach.
Accordingly it was submitted by Mr. W. Trengrove SC that it
was a material legal misdirection for the First Respondent to assert

that "all that the Second Respondent could lawfully do in
respect of the request submitted by the First Applicant was to refer

the matter to the office of the Fourth Respondent". Also, in
that context, it was submitted that the "passing of the
buck"
to Fourth Respondent amounted to a deferral, and abdication of
lawfully prescribed functions. In this context reference was
made to
Hofmeyer v Minister of Justice
1992 (3) SA 108
(C) where it was held
at 117 (F-G) it is well established that a discretionary power vested
in one official must be exercised by
that official (or his lawful
delegate) and that, although where appropriate he may consult others
and obtain their advice, he must
exercise his own discretion and not
abdicate it in favour of someone else".
It
was therefore contended that in failing to ensure their continued
involvement in the matter, the SAPS did not have the specialised

guidance of the PCLU, and accordingly the NPA failed to manage and
direct the investigation in a multi-disciplinary manner as required

by law and under their own policy. In that context reference was made
to Bato Star supra at par 100, where it was stated that if
there was
a relevant applicable policy, then the Minister had to exercise his
discretion in accordance with such policy. He had
a duty to give
effect to that policy. First Applicant had therefore been perfectly
entitled to submit the docket of the office
of the Second Respondent,
and the First and Second Respondents failure to manage and direct the
investigation as required by law
was a result of a material error of
law, which according to the principle of legality stood to be
reviewed and set aside.
26.
The
South African Police Service Act 68 of 1995
as amended by Act 57 of
2008
;
Section
11(1) of the Act referred to s218(1) of the Interim Constitution
which is now s205(3) of the Constitution. The National
Commissioner
had to exercise the powers and had to perform the duties and
functions necessary to give affect to the constitutional
provisions.
Since 6 July 2009 s17 (A) was operative, and there was a change-over
from the "Scorpions" to the "Hawks".
Section
17(B) (a) specifically dealt with serious organised crime. Section
17(D) dealt with national priority offences, as did
s17(D)(3) and
s17(F), which required a multi-disciplinary approach. Before 6 July
2009 the powers and duties of the Police Service
in the present
context was exercised by the mentioned "Hawks". It was
pointed out that in First Respondent's answering
affidavit (page 1305
par 13) he had in fact agreed with that approach, and had said the
following: "it is also practice in
complex matters for
investigating officers to approach the Directors of Public
Prosecutions at an initial stage of an investigation
and prior to the
arrest of suspects to appoint a senior member of the NPA to give
guidance to the investigation". The very
simple conclusion was
that Fourth Respondent had the power and the duty to investigate ICC
crimes committed inside or outside of
South Africa, that Mr. Williams
had been wrong in his reasoning and conclusion, and that this cast a
shadow over all other reasons.
The decision of the Fourth Respondent
and the acquiescence or agreement therewith of the First Respondent,
were mistakes of law,
and therefore reviewable. Their power was not
exercised lawfully, and if they had discretion, they did not exercise
such discretion.
Respondents did not discharge their obligations in
accordance with South Africa's international obligations, nor with an
appreciation
and sound understanding of international customary and
criminal law, nor in accordance with the ICC Act, read with the
Presidential
Proclamation, the SAPS Act and the NPA Act. Furthermore,
they were required to act rationally when making decisions pursuant
to
the ICC Act. In this context reference was made to Affordable
Medicines' Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3)
SA 247
(CC) at par 35 where the following was said: "the
exercise of discretion by the Director-General is subject to certain
constraints,
apart from the constitutional constraints. In the
exercise of his or her discretion, the Director-General must have
regard to all
relevant considerations and disregard improper
considerations. The conditions that he/she is permitted to impose are
those that
are rationally related to the purpose for which his/her
discretionally powers were given".
27.
The
decision not to institute an investigation required the Respondents
to take a number of factors into consideration and to ignore
the
irrelevant ones. The primary obligation was to ensure that the
purposes and objects of the ICC Act were discharged in accordance

with South African international obligation to investigate and
prosecute perpetrators of international crimes in light of the
information placed before the Respondents. In order for the
Respondents decisions to be rational, their decision had to be "based

on accurate findings of fact and the correct application of the law".
See
Pepcor Retirement Fund and Another v Financial Services Board and
Another
2003 (6) SA 38
(SCA) at par 47
: 'The doctrine of legality
which was the basis of the decisions in Fedsure Sarfu and
Pharmaceutical Manufacturers, requires that
the power conferred on a
functionary to make decisions in the public interest, should be
exercised properly, ie on the basis of
true facts;...". In that
decision the SCA stated the following as conclusion: "whether a
review should succeed in the
matter such as the present will depend
on a consideration of the public interest in having the decision
corrected and other factors,
and in particular, the interest of the
person in whose favour a decision has been. Ultimately, a value
judgement, balancing all
the relevant factors will be required."
In this context I may refer to First Respondents' heads of argument
where they say
(at page 71) "the domestic Rome Statute was
enacted in order to ensure the effective implementation of the
international statute.
The preamble of the international statute is
therefore binding upon the Republic." Applicants submitted that
prosecution cases
have to be made out of investigations. I was
referred to S v Basson (1) in this context
[2004] ZACC 13
;
2005 (1) SA 171
at par 37,
which implied that if a state was under an obligation to prosecute
offences, it was by necessary implications obliged
to investigate
such offences. I was also referred to S v Basson (2)
2007 (3) SA 582
(CC) at par 184, where the obligations connected to prosecuting
crimes against humanity were emphasised. There was an international

consensus on the normative desirability of prosecuting such criminals
and, by necessary implication, a proper investigation had
to be done
in all such instances. Accordingly, First and Fourth Respondents
(Mpshe SC and Mr Williams) made errors of law regarding
the powers
and duties in terms of international law and domestic law. I agree
with Applicant's submissions and reasoning, and I
expressly adopt
their conclusions for purposes of this judgment.
28.
Respondents
Reported Concern for "Foreign Relations"
;
Before
dealing with that type of reasoning by the First and Fourth
Respondents it will be convenient to again refer to what First

Respondent said in its heads of argument (page 72 par 51) : "we
accept that the NGO reports relating to the situation in Zimbabwe
in
March 2007 and certain of the witness statements obtained by the
First Applicant create a reasonable suspicion that crimes against

humanity were committed in Zimbabwe during that period." The
issue for them however was whether the necessary proof of these

crimes could be obtained in Zimbabwe. Such evidence would have to be
obtained via mutual legal assistance mechanisms, which would
require
the consent of the Zimbabwean Government. They then referred to a
number of such mechanisms which could be potentially
applicable. Mr W
Trengrove SC argued that the said Respondents had confused different
thresholds for different steps that had to
be taken in terms of the
Statute. Article 53 of the Rome Statute only required that a
reasonable basis existed for the decision
whether or not to initiate
an investigation. It was common cause in the present proceedings that
the standard was met, obviously
on First Respondent's version as well
as I have just pointed out. There were other standards for an arrest,
and the confirmation
of charges. The sufficiency of material for
prosecution purposes was therefore not the proper threshold that was
required, and
accordingly, Brigadier Marion, as I have already
pointed out, was asked the wrong question and gave the wrong answer.
The question
ought to have been: Is there enough information to
warrant an investigation in terms of the applicable law? The answer
has to be,
yes, and First Respondents have conceded that. Respondents
had therefore laboured under an error of law in that context. Mr W
Trengrove
SC accepted that the Police could not simply enter
Zimbabwe, but he did not accept that the Police would not receive any
co-operation.
He did not accept that that was, or could be, a reason
not to initiate an investigation and indeed, Second Respondent's view
at
one stage had been, to put it colloquially, "see how far you
get". Brigadier Marion had analysed certain so-called
deficiencies,
as have I. In the proper context, witnesses could have
been re-interviewed. Brigadier Marion also mentioned First
Applicant's alleged
bias. That could not be any reason not to
investigate, but was merely a misguided attempt to smear the First
Applicant. The attitude
of Respondents in this context was based on
the pre-conceived refusal to do so, and if Brigadier Marion's
reasoning was correct,
no prosecution could ever succeed or even be
instituted, let alone investigated if the relevant government was
complicit in the
commission of such crimes, as it would obviously
protect itself and the particular perpetrators. First and Fourth
Respondents'
view was therefore affected by irrelevant political
considerations having regard to their duties. Their attitude
trivialised the
evidence. Diplomatic considerations were also not the
business of Fourth Respondent, to put it bluntly. In that context I
was referred
to a fairly recent decision of House of Lords in Regina
(Corner House Research and Another) v Director of The Serious Fraud
Office
(JUSTICE Intervening)
[2008] UKHL 60.
This decision is
relevant for a number of reasons. It emphasises (of course in the
British context) that the Director of Serious
Fraud Office is a
public official appointed by the Government, but independent of it.
He is entrusted by Parliament with discretionary
powers to
investigate suspected offences which reasonably appear to him to
involve serious or complex fraud, and to prosecute in
such cases.
Those were powers given to him by Parliament as Head of an
independent, professional service, who was subject only
to the
superintendence of the Attorney General. There was an obvious analogy
with the position of the Director of Public Prosecutions.
It was
accepted that the decisions of the Director were not immune from
review by the courts, but authorities made it plain that
only in
highly exceptional cases would the court disturb the decisions of an
independent prosecutor and investigator. It was also
pointed out that
the discretions conferred upon the Director in the context of his
duties were not unfettered. He had to exercise
his power so as to
promote the statutory purposes for which he was given them, and he
had to direct himself correctly in law. He
had to act lawfully. He
had to do his best to exercise an objective judgment on the relevant
material available to him. He had
to exercise his powers in good
faith, uninfluenced by any ulterior motive, predilection or
prejudice. It seems to me, I must say
at this stage, that those dicta
are equally applicable to South African officials in the context of
the legislation that I have
referred to herein. In that case the
Director had discontinued investigating allegations of corruption
against an United Kingdom
Company. There had been a threat by a
foreign state (Saudi-Arabia) to withdraw co-operation on security
matters if investigations
were continued. If this threat was carried
out, public safety and national security would be compromised. It had
been made clear
to the relevant UK officials, that the relevant
threats to national and international security had been grave indeed.
The Director
had therefore taken the decision to discontinue the
investigation with extreme reluctance. The Director had been
confronted, as
the House of Lords put it, by an ugly and obviously
unwelcome threat. He had to decide what, if anything he should do. He
did not
surrender his discretionary power of decision to any third
party, although he did consult the most expert source available to
him
in the person of the Ambassador, and he did, as he was entitled
if not bound to so, consult the Attorney General who,
however,
properly left the decision to him. The issue in the proceedings
before the House of Lords was not whether the decision
was right or
wrong, but whether the decision was a decision the Director was
lawfully entitled to make. The evidence before the
House of Lords was
clear, no commercial interests caused the Director to discontinue the
investigations, but a clear threat to
"British lives in British
streets" Public safety was therefore the relevant consideration.
29.
I
am of the view that reference to that decision of the House of Lords
is particularly apposite. In the present context it was the
duty of
the First, Second and Fourth Respondents to investigate the docket.
It contained sufficient information for purposes of
such an
investigation, in the context of the Rome Statute. At that stage, it
was not their obligation to take political or policy
considerations
into account. These change in any event from time to time, whilst a
proper jurisprudence remains a concrete basis
for a stable society
living under the twinkling but stern eyes of the Rule of Law. Any
such considerations would affectively destroy
the efficacy of the ICC
Act. Respondents were required to act independently. In the present
context, and in the light of the request
for an investigation of the
torture docket, they had to appreciate the nature and ambit of their
duties, and act accordingly. What
the First Respondent would
thereafter have decided to do with the docket, if I can put it that
way, was not a lawful basis for
refusing to do an investigation at
that stage either. That is a different topic which may or may not
arise in future, and which
might or might not have arisen in the
past, once the investigation had been completed. It is clear
therefore that irrelevant considerations
where taken into account at
that stage.
30.
Except
in the context of powers of a Court given to it in terms of the
Constitution, it is ordinarily not competent and desirable
that a
Court comment on the Governments' policy decisions. In the present
context, there is however little doubt that the Rule
of Law does not
exist in Zimbabwe. The United Nations has dealt with this topic as
did the Southern African Development Community.
I only need to refer
to 3 articles in this regard and those are:
30.1
Zimbabwe: The War on Land, ADVOCATE, December 2009 at 44;
30.2
GCB News "Zimbabwe" ADVOCATE, August 2001 at 40;
30.3
The SADC Lawyers-Association: Media statements, ADVOCATE August 2009
at 10, read with the press releases by the General Council
of the Bar
on SADC Rulings and the Government of Zimbabwe, ADVOCATE, December
2010.
"ADVOCATE"
is published by the General Council of the bar of South Africa.
31.
In
my view it is clear that when an investigation under the ICC Act is
requested, and a reasonable basis exists for doing an investigation,

political considerations or diplomatic initiatives, are not relevant
at that stage having regard to the purpose of the ICC Act.
Such
considerations may become relevant at a stage when the First
Respondent would have to decide whether or not to order a
prosecution,
but even at that stage the purpose of the ICC Act, and
South Africa's commitment thereto, remain relevant considerations
that have
to be taken into account. I have already mentioned that the
First Respondent said in his answering affidavit that he did not take

the ICC Act into account at all. It must not be forgotten that the
ICC Act itself denies explicitly diplomatic immunity to government

officials accused of committing ICC Act crimes. (See s4(2)(a)). The
recent trial of Taylor, in the International Criminal Court
in The
Hague, is a case in point. I have little doubt that on the present
facts the Fourth Respondent could have initiated the
investigation in
South Africa by interviewing witnesses, with the assistance offered
by the First Applicant if necessary. An attempt
should also have been
made, without speculating as to the result, to secure co-operation
from Zimbabwe through the International
Co-operation and Criminals
Act 75 of 1996. It must be remembered in that context that the ICC
Act under certain given circumstances,
deems crimes to have been
committed in South Africa. First Applicant's counsel pointed out that
if Respondents' contentions were
correct, nl, that the NDPP and PCLU
have no investigatory powers under South African law, and that the
SAPS cannot investigate
crimes outside of South Africa, then the ICC
Act's conferral of jurisdiction on South African courts to try
perpetrators of international
crimes who are not South African, and
who commit their crimes outside of South African borders, would be
rendered meaningless.
It would mean that South Africa would never be
able to hold international criminals accountable because, according
to the Respondents,
they were paralysed to act. This was clearly not
consistent with the purpose and object of the ICC Act. It is my view
that in deciding
whether it was "possible" to bring the
perpetrators of international crimes to justice, the Respondents were
required
to determine whether or not the information before them was
sufficient to initiate an investigation, and as I have said, First
Respondent admitted that a reasonable suspicion that crimes against
humanity were committed in Zimbabwe during that period, existed.
It
is also strange to say the least that First Respondent said that he
did not take the views of Second Respondent, which at on
stage were
the same as those of the Applicants, into account. It is clear that
First Respondent, on his own affidavit, without
a thought or concern
for the governing international statute or domestic legislation,
abdicated his views to those held by the
Fourth Respondent. I need
scarcely emphasize that the Constitution, s179 has granted him, in
the context of the NPA, independence,
which he must exercise
impartially without fear or favour it is not for him to blindly
follow political views or policies, let
alone to anticipate such.
32.
Fourth
Respondent's Argument
;
Fourth
Respondent's counsel Mr A Ferreira SC submitted that one argument was
determinative of this case: if a South African court
had no
jurisdiction, there would be no purpose to investigate any
allegations. It would merely be an exercise in futility. No South

African court would have any jurisdiction in terms of the provisions
of s4 of the ICC Act of 2002, only on the basis of an anticipated

presence of the perpetrators in South Africa. Section 4(1) of the
domestic Act merely criminalised the crime of inhumanity. It
did not
give the court any jurisdiction. Only s4(3) of the Act could be
relevant. As far as the provisions of s4(3) (c ) were concerned,
I
could not read into that section the words "or are anticipated
to be present" into that section. If a South African
court had
no jurisdiction, there would be no duty on the Respondents to
initiate an investigation. In reply, Advocate Marcus SC
on behalf of
the Applicants argued that it was in any event not the Applicants'
case that the mentioned "reading-in"
was required. He said
that the Fourth Respondent's argument confused the meaning of
"jurisdiction". He submitted that
s4(3) (c ) dealt with the
fact whether or not an accused person should be present at a trial in
the context of the ICC Act. He
submitted that this sub-section gave
statutory recognition to the principle that a court exercising
criminal jurisdiction could
only do so if the relevant accused was
present. This section had nothing to do with the power to conduct
investigations. A trial
might or might not eventuate. I may mention
that on the Fourth Respondents own version, a number of the alleged
perpetrators had
been present in South Africa during certain times,
although it was not explained why the Fourth Respondent did not deal
with all
of the time periods since the date of the impugned
decisions, or even at the time of the submission of the docket. If a
proper
investigation had been made, it would have been the first step
that would have enabled the First Respondent to make a subsequent

decision whether or not to prosecute, if the perpetrators were
present in the territory of the Republic, as some of them indeed
had
been. Mr Marcus SC is in my view correct in submitting that s4 (3) of
the ICC Act dealt with the jurisdiction of the court
to try someone
after an investigation. He submitted that Fourth Respondent's
argument was absurd: it would mean that if a suspect
was physically
present in South Africa then an investigation could continue. If they
then left, even for a short period, the jurisdiction
would then be
lost. If they then re-entered South Africa, an investigation would
continue. I agree that this does amount to an
absurdity. One does not
know what would have occurred if an investigation had been ordered,
it was not simply an open and shut
case. Section 4 (3) was concerned
with a trial. The ICC Act was silent on an investigation, but in my
view it is logical that an
investigation would have to be held prior
to a decision by the First Respondent whether or not to prosecute.
I
am therefore of the view that Fourth Respondent's argument on the
meaning of s4 (3) of the ICC Act cannot be upheld.
In
the light of all of the above, it is my view that the application
must succeed. I must emphasize that the proper context of these

proceedings is crucial. My order is not intended to place any
obligations upon the First and Second Respondents over and above

those required by the legislation relevant herein. There is also no
valid reason why the Applicants should not be awarded their
costs. I
must add that prior to the commencement of the proceedings I had
invited the Applicants and the Respondents to propose
what relief I
ought to grant if I had to find that there was an undue delay by the
Respondents in arriving at the impugned decisions,
which a delay
would have breached s179 and s273 of the Constitution. The delay was
admitted, but prejudice was denied. I also invited
the parties to
propose what order I ought to grant in the context of Prayer 4, nl,
that the First Second and Fourth respondents
reconsider the
Applicants' request originally dated 16 March 2008. As result I was
handed two conditional draft orders, by the
Fourth Respondent and by
the Applicants. I have considered these, and intend amending the
conditional proposal by the Fourth Respondent
in the light of the
Applicant's comment thereon.
33.
In
result the following order is made;
1.
The decision taken by First, Second and Fourth Respondents in
refusing and/ or failing to accede to the First Applicant's request

dated 16 March 2008 that an investigation be initiated under
the
Implementation of the Rome Statute of the International
Criminal Court Act 27 of 2002, into acts of torture as crimes against
humanity
committed by certain named perpetrators in
Zimbabwe, is
reviewed and set aside;
2.
The relevant decisions to refuse such a request are declared to be
unlawful, inconsistent with the Constitution and therefore
invalid;
3
Applicants request as aforesaid must be assessed by the First, Second
and Fourth Respondents, having regard to South Africa's
international
law obligations as recognised by the Constitution;
4.
The Second Respondent is ordered to render all possible assistance to
the Fourth Respondent in the evaluation of the request
by the First
Applicant for the initiation of an investigation. The Second
Respondent is ordered to manage and direct such investigation
as
provided for in terms of the applicable Presidential Proclamation and
the NPA Act as amended;
5.
The Priority Investigation Unit referred to in chapter 6A of the
South African Police Service Act 68 of 1995
as amended shall in
accordance with s205 of the Constitution, and in so far as it is
practicable and lawful, and with regard to
the domestic laws of the
Republic of South African and the principles of international law, do
the necessary expeditious and comprehensive
investigation of the
crimes alleged in the torture docket;
6.
In so far as the investigation by this unit is concerned, it is
recorded that the Fourth Respondent is unable to ensure the safety
of
any witnesses in Zimbabwe, and cannot take
responsibility for, or
be held accountable for the safety of any witnesses, or any
prospective witnesses in Zimbabwe, or who will
have to travel from
Zimbabwe to South Africa and return;
7.
The Investigating unit will not procure or secure the attendance of
witnesses located in Zimbabwe. If the assistance of the Applicants

can facilitate this process, the Applicants must render such
assistance;
8.
In the event of the Applicants being able to secure the attendance of
the witnesses in South Africa, the Applicants will ensure
that the
witnesses enter South Africa legally and in compliance with any and
all relevant immigration laws of South Africa and
Zimbabwe;
9.
The Respondents, if necessary through collaborative efforts with the
department of Home Affairs and the Department of International

Relations and Co-operation, will provide the
required
assistance to ensure the attendance of such witnesses in South
Africa, including through the provision of visas and the
waiving for
the need of a passport (ie allowing the use of an emergency travel
document) where appropriate;
10.
It is recorded that any request for mutual legal assistance in terms
of the International Co-operation and Criminal Matters
Act 75 of
1996, which may be made in the investigative process, will be dealt
with by the Second Respondent in co-operation with
the investigating
unit referred to;
11.
The priority crimes units (the investigating unit) will without undue
delay communicate all findings to the Second Respondent.
After the
mentioned investigation has been completed, the Second Respondent is
ordered to take a decision whether or not to institute
a prosecution.
If a prosecution is recommended accordingly, Second Respondent must
refer his decision to the First Respondent for
confirmation. The
record of any such decision is to be submitted to the Applicants.
34.
First,
Second and Fourth Respondents are ordered to pay the costs of the
application jointly and severally, the one paying, the
others to be
absolved, including the costs of two senior counsel and one junior
counsel.
35.
I
must add that I considered the employment of two senior counsel and
one junior counsel on behalf of the Applicants as having been
a wise
and reasonable precaution in the light of the facts and the relevant
legislation, and the importance of the matter to the
Applicants, the
victims and the general public.
JUDGE
H J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Case
no.: 77150/09
Counsel
for the Applicants: W. Trengrove SC
G.
Marcus SC M Plessis
Instructed
by: South Africa Rights Litigation Centre
Pretoria
Law Clinic
Kutlwanong
Democracy Centre
357
Visagie Street
Pretoria
Counsel
for the First Respondent: C Puckrin SC
RC
Macadam SC Bukau
Counsel
for the Third Respondent: AC Ferreira SC
Counsel
for the Fourth Respondent:: AC Ferreira SC
I
Ellis
Instructed
by: The State Attorney Manaka Heights.
8th
Floor 167 Andries street
Pretoria
Heard
on: 26 March 2012 to 30 March 2012
Date
of Judgement 8 May 2012