2
DOSIO J:
Introduction
[1] This is an application in terms of s85(1) of the Criminal Procedure Act 51 of 1977 (‘Act
51 of 1977’) , brought by the accused against the intended charges upon which the
accused are to be arraigned.
[2] The State inte nds to charge the accused with five main offences an d three alternative
Counts . The three alternative counts relate to the s econd to f ifth counts. The charges
are as follows:
(a) Count one -Kidnapping.
(b) Count two, is a crime against humanity namely, murder , read with s232 of the
Constitution , (relating to the death of E ustice Madikela) , allegedly committed on 15
February 1982. Alternative to count two, murder , read with the provisions of s s91,
92 and 258 of Act 51 of 1977 .
(c) Count three, is a crime against humanity , namely murder , read with s232 of the
Constitution , (relating to the death of P eter Matabane) , allegedly committed on 15
February 1982. Alternative to count three, murder, read with the provisions of ss91,
92 and 258 of Act 51 of 1977.
(d) Count four, is a crime against humanity , namely murder , read with s232 of the
Constitution , (relating to the death of F anyana Nhlapho) , allegedly committed on 15
February 1982. Alternative to count three, murder, read with the provisions of ss91,
92 and 258 of Act 51 of 1977.
(e) Count five, is a crime against h umanity of apartheid read with s 232 of the
Constitution in that 0n 15 February 1982, the accused killed Eustice Madikela, Peter
Matabane and Fanyana Nhlapo .
[3] This Court has allowed the famil y members of the deceased in the matter in casu to
intervene as amicus curiae , for purposes of the objection raised by the accused in terms
of s85 of Act 51 of 1977.
[4] Accused two, who is joined by accused one in this objection, takes issue with reference
to the main counts set out in counts two, three , four and five, on the basis that the State’s
right to institute a prosecution against the accused on the mentioned charges has
lapsed in terms of s18 of Act 51 of 1977 . Accused one has in addition, object ed to the
3
title of the N ational Prosecuting Authority , (‘NPA’) to prosecute, given that the NPA and
the Government of South Africa committed ‘gross misconduct ’ by engaging in political
interference in the cases referred by the Truth and Recon ciliation Commission , (‘TRC’ ),
to the NPA.
[5] The State contends that the basis of the charges on counts two, three, four and five ,
arise from the accused’s conduct as being pa rt of a systematic attack or elimination of
political opponents of the apartheid regime, and further that they formed part of an
institutionalised regime of systematic oppression and domination, by one racial group
over other racial groups with the intention of maintaining that domination. The avenue
the State has chosen to pursue this prosecution in this matter is section 232 of the
Constitution.
Background
[6] The prosecution of the accused was instituted during 2021 , which is approximately 40
years after the alleged crime s are alleged to have occurred , namely, on 15 February
1982 .
[7] The accused contend that s 18(1) of Act 51 of 1977 provides that the right to institute a
prosecution for any offence, other than the exceptions referr ed to in paragraphs (a) to
(j), shall lapse after the expiration of a period of twenty years from the time when the
offence was committed. As a result, counts two, three, four and five do not fall within
the ambit of the offences excluded from the operation of s18(1) of Act 51 of 1977 , with
specific reference to s s18(1) (a) to (j).
[8] Section 18(1) of Act 51 of 1977 was amended by s 39 (Schedule 2) of the Rome Statute
of the International Criminal Court Act 27 of 2002 (‘the ICC Act’) , to introduce s18(1)(g)
of Act 51 of 1977 . On 16 August 2002 the crimes of genocide, crimes agains t humanity
and war crimes , as contemplated in s4 of the ICC Act were added. Prior to the relevant
amendment there was no s18(1)(g) or any similar provision.
Contentions of the accused
[9] The accused contend that the State have an unsurmountable problem regarding the
charges arraigned against the m, in that the State is relying on c ustomary international
4
law and not the offence of a crime against humanity created in terms of s4 of the ICC
Act.
[10] The accused argue that s18(1) (g) of Act 51 of 1977 provides for an exclusion from the
general prohibition to prosecute with reference to prosecutions in terms of s4 of the ICC
Act and the amendment that introduced s18(1)(g) in that the amendment only came into
effect on 16 August 2002, which is more than 6 months after the State’s right to
prosecute had lapsed .
[11] The accused state even if it is to be found that s18(1)(g) of Act 51 of 1977 is also
applicable to prosecutions in terms of the customary international law (which is
disputed), the right of the State to prosecute has still lapsed on 14 February 2002.
[12] It was contended that there is no provision in s18 of Act 51 of 1977 for any revival of the
right to prosecute relating to a crime against humanity after it has lapsed, resulting in no
triable issue between the State and the accused , relating to the charges on counts two,
three, four and five . This is because the legislature specifically dealt with the issue of
the revival of certain offences that have lapsed prior to the amendment of s18(1) of Act
51 of 1977 in s18(2) of Act 51 of 1977 which states:
‘(2) The right to institute a prosecution that, in respect of any offences referred to in subsection
(1)(eA) and (f), has lapsed before the commencement of the Prescription in Civil and
Criminal Matters (Sexual Offences) Amendment Act,2020, is hereby revived.’
[13] It was argued that the provision for the revival of certain offences that have lapsed, prior
to the extension of the exclusions provided for in s18(1) of Act 51 of 1977 were limited
to two subsections , or categories of offences , namely, those referred to in s18(1)(eA)
which are the crimes of bribery and corruption , and those mentioned in s18(1)(f) of Act
51 of 1977 , which are sexual offences .
[14] It was argued that because s18(2) of Act 51 of 1977 was introduced in 2020 by s3 of
the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of
2020, (‘Act 15 of 2020 ’), that it can be inferred that prior to 2020 there was no provision
for revival of offences where the right to prosecute had lapsed in terms of s18 of Act 51
of 1977 . Furthermore, that during 2020 when the Legislature considered and decided
to amend s18 of Act 51 of 1977, to provide for the revival of certain offences that ha d
5
already lapsed, s18(1)(g) of Act 51 of 1977, relating to crimes against humanity , existed
and was part of s18(1) of Act 51 of 1977 .
[15] The accused contend th at when interpreting s18(1)(g) of Act 51 of 1977, there is a
presumption against retrospectivity , reference was made to the Constitutional Court
case of S v Mhlungu and Others .1
[16] It was argued that any Court must interpret the s18(1)(g) so as to render an
interpretation least harsh to the affected persons.2
[17] It was contended that the wording of s18(1)(g) is objectively clear in that the Legislature
elected to only refer to offences contemplated by s4 of the ICC Act , of which a crime
against humanity is included and not to refer to offences in terms of the International
Common Law and no t to provide for the revival of any of the offences referred to in
s18(1)(g) of Act 51 of 1977 .
[18] It was argued that the State’s contention that a proper interpretation of s18(1)(g) of Act
51 of 1977 is to include all crimes against humanity, in cluding crimes in terms of the
common i nternational l aw, read with s 232 of the Constitution, is clearly wrong and
should be rejected. It was argued that i f the Legislature intended to include the crime
against humanity in terms of the customary international l aw, the Legislature would
clearly have done so. The fact that the legislature did not include it, is because it clearly
did not intend to .
[19] In addition, it was contended that the general rules and principles relating to the
interpretation of statutes , do not support an interpretation to broaden the ambit of
s18(1)(g) of Act 51 of 1977.
[20] Accordingly, the accused argue that the charges , as formulated in the present
indictment, with specific reference to the m ain counts on count two, three, four and five
do not fall within the ambit of s 18(1)(g) of Act 51 of 1977 and this Court should uphold
the objection in terms of s85 of Act 51 of 1977 .
1 S v Mhlungu and Others 1995 (3) SA 867 (CC
2 see R v Sachs 1953 (1) SA 392 (A), S v Kimberley a.o . 2005 (2) SACR 663 (SCA) and NDPP v Carolus a.o 1999 (2) SACR
607 (SCA)
6
Contentions of the State and the amicus
[21] The State and amicus make the following contentions, namely:
(a) The customary international law binds the Republic, even in instances where South
Africa has not ratified an associated treaty in terms of s 231 of the Constitution .
(b) Section 233 of the Constitution requires any court interpreting legislation to :
‘…prefer any reasonable interpretation of the legislation that is consistent with international
law over any alternative interpretation that is incon sistent with international law .’
(c) International law is compris ed essentially of treaties and customary laws . Treaties bind
those states that are parties to the m. Customary international law, on the other hand,
is a collection of rules that have been accepted and practiced by the international
community. Rules of customary international law are binding on all states. According
to the International Committee of the Red Cross (‘ICRC’), customary international law
derives from ‘a general practice accepted as law’. Such practice can be fo und in a
variety of sources, including national legislation, regional and international
instruments, domestic and international case law and scholarly works. It was argued
that s 7(4) of the Implementation of the Geneva Convention Act 8 of 2012 , recognises
prosecutions of international crimes under s232 of the Constitution in that :
‘Nothing in this Act must be construed as precluding the prosecution of any person accused
of having committed a breach under customary international law before this Act took effect’ .
(d) The amicus contend that much of customary international law has evolved from norms
proclaimed in international human rights instruments, which have their basis in the
United Nations Charter, the Universal Declaration of Human Rights and other treaties
of a universal character .3 Furthermore, it is contended that to qualify as customary
international law, an international norm must meet two requirements .4 It must qualify
as a constant and uniform usage ( ‘usus ')5 and must be followed fr om a sense of legal
obligation , opinio iuris.6 Whether a norm qualifies as a norm of customary international
3 see Buergenthal, International Human Rights in a Nutshell, St. Paul, West Publishing Co. 1988 at 245. See generally:
Andreas O’Shea, International Law and the Bill of Rights , Last updated October 2004 – SI 15).
4 see Statute of the International Court of Justice, art 38(1)(b)
5 (see Asylum case 1950 ICJ Rep 266; Case Concerning Military & Para -military Activities in & against Nicaragua 1986 ICJ
Rep 14. In the South African context, see S v Petane 1988 4 All SA 88 (C); 1988 3 SA 51 (C); Dugard International Law page
24)
6see North Sea Continental Shelf cases 1969 ICJ Rep 3; Dugard International Law pages 51 –53, 55.
7
law is a question to be decided by a court through the application of the criteria of usus
and opinio iuris.7
(e) Reference was made to the Restatement of the Foreign Relations Law of the United
States (Third) (1987) , (‘Restatement Third ’). The Restatement Third characterizes
some of the rights in the Universal Declaration of Human Rights as customary
international law a nd lists the following practices as violating customary international
law, namely, genocide, slavery, murder or causing the disappearance of individuals,
torture or other cruel, inhuman or degrading treatment or punishment, prolonged
arbitrary det ention, systematic racial discrimination and consistent patterns of gross
violations of internationally recognized human rights. The amicus contend that the
Restatement Third asserts that repeated failures to punish violations of rights
protected under customary international law may constitute gover nment condonation
of such acts especially if such acts are repeated by officials, and no steps have been
taken to prevent them or to punish the perpetrators.8
(f) It is trite that a court may find the accused guilty of a crime only where the conduct
was recognised as a crime at the time of its commission which is referred to as the ius
praeviu m principle . It is a known fact that c rimes against humanity evolved under
customary international law and were first charged under the Nurenberg Tribunal
Charter of 1945. The U nited Nations General Assembly endorsed the concept of
Crimes against Humanity in 1946. Crimes against humanity a re defined by a set of
inhuman acts comm itted in a particular context, namely as part of a widespread or
systematic attack directed against any civilian population. It was contended that in the
matter in casu, the accused committed the se acts as part of a widespread and
systematic attack against black civilians and opponents of the regime.
(g) The State contends that the charges have been formulated to identify two separate
constitutive elements of crimes against humanity. These are:
1. The general contextual elements of the crime, which refers to a regime of systematic
oppression or attack and
2. The specific u nderlying acts that an accused committed with the requisite intention ,
referring to the murder, persecution or other inhuman acts.
[22] As a result, both the State and the amicus contend that counts two, three, four and five
are valid and can stand.
7 see S v Petane note 5 above; Dugard International Law 56–58.
8 see Restatement, §102(2) (1987) comment b. See also U.S. v. Mex., 4 REP. INT’L ARB. AWARDS 82 (1926) 89 –90)
8
Evaluation
[23] The accused are charged with core offences based on customary international law, read
with s232 of the Constitution and not in terms of s4 of the ICC Act. Accordingly, th is
Court must determine whether counts two, three, four and five, which are based on the
alleged contravention of the customary international l aw, read with s232 of the
Constitution , can be used as a self -standing basis for institution of a prosecution.
[24] The accused have a right to object to an indictment by the State which is provided for
in s85 of Act 51 of 1977 , provided that an accused has stated the ground upon which
the objection is based .
[25] The essential objection raised by the accused is that the crimes against humanity
referred to in counts two, three, four and five do not fall within the ambit of the offences
excluded from the operation of s18(1) of Act 51 of 1977 and have prescribed.
[26] As argued by the State and the amicus, i nternational law consists of specific treaties or
conventions that specific countries consent to, which binds them and then there is
customary international law that is binding on all countries. As a result, serious human
rights violations are criminalized and can be prosecuted under bot h conventional
international law and customary international law. In terms of the Constitution, both
sources of international law form part of South African law.
[27] Section 231 of the Constitution gover ns the domestication of conventional i nternational
law, providing that once South Africa has signed a spe cific treaty or convention, it
becomes law in the Republic when it is approved by Parliament and enacted i nto law
by national legislation . It also states that t he Republic is bound by international
agreements which were binding on the Republic when this Constitution took effect
[28] Section 232 of the Constitution refers to the domestication of customary international
law and states that:
‘Customary international law is law in the Republic unless it is inconsistent with the Constitution
or an Act of Parliament. ’
[29] As a result, under S outh African Law, crimes against humanity , can be brought by the
State either in terms of c onventions that South Africa has signed, ratified and duly
9
implemented , example the ICC Act, or in terms of customary i nternational law as stated
by s232 of the Constitution.
[30] Customary international law is a source of international law developed through state
custom or practice. In effect, it is the “common law” of the international legal system. A
custom becomes a rule of customary international law where it is a sufficiently
widespread practice adopted by states out of a sense of legal obligation. In the matter
of Columbia v Peru ,9 the International Court of Justice ( ‘ICJ’), stated that for a practice
to become a rule of customary international law, the practice must be 'constant and
uniform'.10
[31] Customary International Law establishes the duty to investigate and prosecute
international crimes, such as extrajudicial killings, torture and enforced
disappearances.11
[32] Customary International law was recognised as being of direct application in South
Africa even before the advent of the Constitution. In the matter of Nduli and Another v
Minister of Justice and Others12 (‘Nduli ’), the Appellate Division , as it then was, as per
the judgment of Chief Justice Rumpff, accepted that customary international law was,
subject to it not being in conflict with domestic law, directly operative in the national
sphere. The learned Rumpff CJ noted that customary international law would have to
be either universally recognised or need the assent of this country. Subsequent
judgments, namely, Inter-Science Research and Development Services (Pty) Ltd v
Republica Popular de Mocambique13 and S v Petane14 (‘Petane ’), departed from this
interpretation , however, in the matter of Petane ,15 the Court held that in that case, the
distinction between universal and general recognition of customary international law
made no difference and the Court held that ‘where a rule of customary international law is
recognised as such by international law it will be so recognised by our law ’.16 [my emphasis]
9 Colombian -Peruvian asylum case I.C.J. Reports 1950, 266
10 Idem page 276
11 see Jeremy Sarkin, “Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law,”
Nordic Journal of International Law 81, no. 4 (2012): 537 –584, 541)
12 Nduli and Ano ther v Minister of Justice and Others 1978 (1) SA 893 (A)
13 Inter -Science Research and Development Services (Pty) Ltd v Republica Popular de Mocambique 1980 (2) SA 111 (T)
14 Petane 1988 4 All SA 88 (C) (note 5 above)
15 Ibid
16 Ibid page 92
10
[33] In the matter of Law Society of South Africa and Others v President of the Republic of
South Africa and Others ,17 the Constitutional Court held that :
‘Our Constitution also insists that [courts] not only give a reasonable interpretation to legislation
but also that the interpretation accords with international law. And unless otherwise inconsistent
with our Constitution, customary international law is la w in this country .’18
[34] It is clear from the decision of Petane19 that c ustomary international law has been an
integral part of South African l aw long before the Constitution came into effect.
[35] Unlike treaties, no specific action is required to incorporate customary international law
into the Republic’s legal system , its mere existence is sufficient20 and customary
international law automatically forms part of the law of the Republic, unless it is
inconsistent with the Constitution or an Act of Parliament.
[36] Apartheid, was a system of racial segregation and discrimination, that was formally
implemented in South Africa in 1948. This system, rooted in the country's history of
settler -colonialism, was designed to maintain the domination of the white minority over
the black majority. The apartheid regime, amongst others, enforced racial
categorisations, segregation in all areas of life, and the disenfranchisement of black
South Africans. Additionally, enemies or threats to the State were punished with
impriso nment, kidnapping, torture, police and state brutality, and assassinations, to
name a few.
[37] Apartheid was declared a crime against humanity by the United Nations General
Assembly in 1966. It was placed beyond any ‘statute of limitation’ , i.e time bar , by an
International Treaty in 1968, and comprehensively criminalised under the United
Nations Convention on the Suppression and Puni shment of the Crime of Apartheid in
1973 (‘the Apartheid Convention’) . These sources all predate the crimes charged in the
matter in casu.
[38] The transition to democracy which culminated in the first democratic elections of
1994 involved negotiations between the apartheid government and liberation
17 Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) BCLR 329 (CC);
2019 (3) SA 30 (CC),
18 Idem para 5
19 Petane (note 5 and 14 above)
20 see WA Joubert, Law of South Africa (LAWSA), Annual Cumulative Supplement 2024, Lexis Nexis.at 451.)
11
movements, resulting in our current constitutional framework that enshrined human
rights and the rule of law. A key element of this transition was the establishment of the
TRC in 1995.
[39] The TRC endorsed the position that apartheid as a form of systematic racial
discrimination and separation constituted a crime against humanity and that in this
context, the State, in the form of the South African government, the civil service and its
security forces, was in the period of 1960 to 1994 its primary perpetrator.21
[40] The c ontextual elements of the charge of crime against humanity of apartheid
incorporate the common elements of the definitions of the crime jointly under the
Apartheid Convention and article 7 of the ICC Act , which include specific inhuman acts
all committed as part of maintaining an institutionalised regime of systematic oppression
and domination by one racial group over persons of another racial group .
[41] As far as the underlying a cts of the crime of apartheid are concerned, both the Apartheid
Convention and the ICC Act expressly list murder, inflicting physical and mental harm,
arbitrary arrests, extermination, enslavement, persecution, torture, enforced
disappearance of persons and apartheid as examples of ‘inhuman acts. Accordingly,
crimes against h umanity have existed under customary i nternational law for at least 79
years.
[42] If it can be demonstrated that apartheid as a crime against humanity passed into
customary international law prior to the crimes committed in the matter in casu, namely
on 15 February 1982, then the NPA is entitled to proceed with such charges .
[43] The Constitution acknowledges and incorporates these pre -existing principles
automatically, without the need for specific legislative action , thus integrati ng the
influence and relevance of customary international law within the South Africa n legal
framework. Therefore, even if these charges were n on-existent offences in Sout h Africa
at the time of their commis sion, they were offences under c ustomary international law
which ha ve been an integral part of South African law pre -1994.
21 see TRC Report, Volume 5 Chapter 6, Findings and Conclusions , at p. 222
12
[44] South Africa would not be the first country to prosecute matters which occurred long
after the commission of the crime . In Cambodia , for example, Courts were established
in 2006 to prosecute the senior leaders of the Khmer Rouge responsible for atrocities
in Cambodia and the trials began three decades after the commission of the se
atrocities.
The Constitutional Courts
[45] In the matter of S v Basson22 (‘Basson 1 ’), the Constitutional Court held that:
‘…the State’s obligation to prosecute offences…..applies to all offences committed before [the
Constitution] came into force . It is relevant to this enquiry that international law obliges the state
to punish crimes against humanity and war crimes.23 It is also clear that the practice of apartheid
constituted crimes against humanity and some of the practices of the apartheid government
constituted war crimes. ’24
[46] In considering s 232 of the Constitution the Constitutional Court in Basson 1 ,25 as per
the judgment of Sachs J , confirmed that the rules of humanitarian law constitute an
integral part of customary international law in that it applies and has ‘ to be observed by
all states whether or not they have ratified the Conventions that contain them because they
constitute intransgressible principles of international customary law’ 26
[47] The finding of the Constitutional Court in the matter of Basson 1 ,27 confirmed that crimes
against humanity under customary international law can be prosecuted directly under
s232 of the Constitution.
[48] In the matter of Basson 1 ,28 Sachs J raised three substantial constitutional questions in
connection with the quashing of the charges against Mr Basson :29
(a) The first is whether the conduct charged could be characterised as a war crime as
understood by international humanitarian law.
22 S v Basson 2005 (1) SA 171(CC)
23 (see Dugard "Is the Truth and Reconciliation Process Compatible with International Law? An unanswered question" 13
(1997) SA Journal on Human Rights 258 at 263. See also Prosecutor v Dusko Tadic (ICTY) (1996) 35 ILM 32 at 72
24 Basson 1 (note 22 above) at para 37 and Convention on Suppression and Punishment of the Crime of Apartheid, 1973,
article 1; Convention on the Non -Applicability of Statutory Limitations to War Crimes an d Crimes Against Humanity, 1968
25 Basson 1 (note 22 above)
26 Ibid para 122
27 Ibid
28 Ibid
29 Ibid para 116
13
(b) If the answer is affirmative, the second question is whether and to what extent this
could impose a special constitutional responsibility on the state to prosecute the
respondent.
(c) The third is whether the quashing of the charges without reference to the fact that
the prosecution of war crimes was involved, manifested a failure to give effect to South
Africa’s international obligations a s set out in the Constitution.
[49] In dealing with the first question as to whether the conduct alleged in the quashed
charges were war crimes, Sachs J referred to Cassese’s definition that war crimes are
‘serious violations of customary or, whenever applicable, treaty rules belonging to the
corpus of the international humanitarian law of armed conflict… ’30
[50] Sachs J concluded that if the allegations in the Basson matter could be proved, it would
be difficult to argue that they did not constitute war crimes.31
[51] In considering the second question, Sachs J questioned whether if the charges could
establish the commission of war crimes, would such a finding signif y a need to take
account of international law in determini ng the issues. In this regard he concluded that
the materials before him were s ufficiently substantive to propel this question from the
realm of the purely speculative into the universe of the real .32
[52] In the matter of S v Basson33 (Basson 2 ’), the Constitutional Court concluded that certain
violations, such as murdering captives held by the security forces fell squarely within
customary international law prohibitions.
‘…What matters is that regard had to be had by all those involved in the conflict to
intransgressible principles based on elementary considerations of humanity. There can be no
doubt that the use of instruments of state to murder captives long after resistan ce had ceased
would in the 1980s, as before and after, have grossly transgressed even the most minimal
standards of i nternational humanitarian law .’34
30 Ibid para 117 and Cassese International Criminal Law (2003) at 47
31 Ibid para 120
32 Ibid para 121
33 S v Basson 2007 (3) SA 582 (CC); 2007 (1) SACR 566 (CC) (9 September 2005)
34 Ibid para 179
14
[53] In the matter of National Commissioner of The South African Police Service v Southern
African Human Rights Litigation Centre (‘National Commissioner’ ),35 the Cons titutional
Court confirmed that:
‘The extent of our country's responsibilities as a member of the family of nations to investigate
crimes against humanity li es at the heart of this case .’36
[54] In the matter of National Commissioner ,37 the Constitutional Court held that:
‘…crimes against humanity [are] criminalised under section 232 of the Constitution’38 [my
emphasis]
[55] The reference in the matter of National Commissioner39 is clearly the crime of torture,
but the Constitutional Court accepted the proposition that ot her crimes, including
apartheid , are also crimes in South Africa because of their prohibition under customary
international law. The Constitutional Court endorsed the prosecution of international
crimes and crimes against humanity under s232 of the Constitution, noting:
‘Along with torture, the international crimes of piracy, slave -trading, war crimes, crimes against
humanity, genocide and apartheid require states, even in the absence of binding international
treaty law, to suppress such conduct because "all states have an interest as they violate values
that constitute the foundation of the world public order . Torture, whether on the scale of crimes
against humanity or not, is a crime in South Africa in terms of section 232 of the Constitution
because the customary inter national law prohibition against torture has the status of a
peremptory norm .’40 [my emphasis]
[56] The Constitutional Court in the matter of National Commissioner ,41 concluded that the
SAPS not only had the requisite power to investigate crimes against humanity but also
a duty to do so, which duty arises from the Constitution .42
[57] Accordingly, s232 of the Constitution provi des an independent legal basis for the State
to fulfil its obligations under the Constitution and under international law to prosecute
international crimes including those committed before 1994.
35 National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre 2015 (1)
SA 315 (CC)
36 Ibid para 3
37 Ibid
38 Ibid para 39
39 Ibid
40 Ibid para 37
41 Ibid
42 Ibid para 60
15
[58] South Africa is not alone in applying customary i nternational law to pursue war crimes
and crimes against humanity. Indeed, it is not even the first to do so on the African
continent.
[59] Other African courts have also confirmed that crimes against humanity and war crimes
may be prosecuted under customary international law , including the High Court of
Uganda in Uganda v Thomas Kwoyelo Alias Latoni43 and the Supreme Court of Gambia
in the matter of State vs Yankuba Touray ,44 where the Supreme Court held that the
common law, read with the ir Constitution, ‘recognizes that customary international law
is part and parcel of the common law ’,45 insofar as its not inconsistent with local statute
law.
[60] The Supreme Court of Gambia noted that the rights and duties flowing from the rules of
customary international law will be recognized and given effect by the Gambian Courts
without the need for any specific Act adopting those rules into Gambian law .
The principle of legality
[61] The accused have referred to the principle of legality as being a ground for the inability
of the State to prosecute the accused. This principle is often expressed as nu llum crimen
sine lege, meaning that an accused cannot be prosecuted for an action unless it was
defined as a crime and punishable at the time it was committed.
[62] This Court must determine whether apartheid was a crime under international law in
1982, because a ccording to s35(3)(l) of the Constitution, an accused has a right to a
fair trial which includes the right not to be convicted for an act or omission that was not
an offence under either national or international law at the time it was committed.
[63] It is true that t he rule against retrospectivity prevents prosecutors from pursuing crimes
created by treaties if the cr imes were committed before the date the treaty was ratified .
However, if the State can prove that these crimes had passed into customary
43 Uganda v Thomas Kwoyelo Alias Latoni HCT -OO-ICD-CR-SC 2 OF 2010]UGHCICD 2 922 November 2017
44 State vs Yankuba Touray , SC CR/001/2020
45 Ibid pages 17 -18
16
international at the time they were committed, then the NPA may pursue these crimes
under customary international law .46
[64] This should not be a difficult exercise for the State in the matter in casu, as crimes
against humanity have been crimes under international law since their codification in
the 1945 Nuremburg Tribunal charter .47
[65] The International Covenant on Civil and Political Rights ( ‘ICCPR’ ), which was adopted
in 1966, stipulates in article 15(2) that a state party may indict, bring to trial, and punish
any person for any conduct ‘which, at the time when it was committed, was criminal according
to the general principles of law recognized by the community of nations ’.
[66] Accordingly, article 15(2) of the ICCPR allows prosecutors to pursue crimes proscribed
under customary international law, even where such conduct was not domestically
criminalized .
[67] There is considerable amount of foreign and regional case law that confirms that
statutes of limitations do not apply to crimes against humanity and other core
international crimes.
[68] Multiple other countries around the world have invoked customary international law to
pursue the most serious international crimes, including crimes against humanity, without
offending the principle of legality . Examples include cases from national courts in
46 see M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge, UK:
Cambridge University Press, 2011), 300.)
47 See generally ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement
of the Tribunal, International Law Commission Report on the Nuremberg Principles , 5 UN GAOR, Supp. No. 12, UN Doc.
A/1316 (1950).
17
Argentina,48 Australia,49 Canada,50 Chile,51 Estonia,52 Germany,53 Latvia,54 Spain,55
United States,56 Uganda and Uruguay.57
[69] The accused claim that crimes against humanity committed before the commencement
of the ICC Act do not fall within th e exception as set out on s18(1) of Act 51 of 1977.
[70] It is a well -known rule of customary international law that the core international crimes
of genocide, crimes against humanity and war crimes never prescribe. Given the
peremptory nature (jus cogens) , or compelling law governing customary international
law, all states are under a duty to recognise and respect a jus cogens norm. Rule 160
of the International Committee of the Red Cross ( ‘ICRC ’) rules on Customary
International Humanitarian Law , which pertains to s tatutes of limitation , states that ‘ The
principle that statutes of limitation do not apply to war crimes is set forth in many military manuals
and in the legislation of many States, including those of States not party to the UN or European
Conventions on the Non -Applicability of Statutory Limitation s to War Crimes or Crimes against
Humanity .’58 Rule 160 states further p rescription shall not apply to crimes under
international law that are by their nature imprescriptible.
[71] Due to many perpetrators of crimes against humanity and war crimes that escaped the
auspices of the Nuremberg and Tokyo Tribunals after World war two, the U nited Nations
adopted the Convention on the Non -Applicability of Statutory Limitations to War Crimes
and Crimes against Humanity in 1970 (‘the Convention on Statutory Limitations’ ). The
Convention on Statutory Limitations, as the name implies, prohibits the application of
statutory limitations, including the principle of undue delay, to crimes against humanity.
48 see Arancibia Clavel case, Case no. 259, Supreme Court of Justice of the Nation (Corte Suprema de Justicia de la Naci ón)
49 see Polyukhovich v. The Commonwealth of Australia and Another , [1991] HCA 32; (1991) 172 CLR 501 F.C. 91/026 (High
Court of Australia)
50 see Her Majesty The Queen v. Imre Finta , File Nos.: 23023, 23097, Supreme Court of Canada, 24 March 1994; Her
Majesty The Queen v. Désiré Munyaneza , Case no. 500 -73-002500 -052, Superior Court, Criminal Division, 22 May 2009)
51 see Molco de Choshuenco , Case no. 559 -2004, Supreme C ourt of Chile, Criminal Chamber
52 see Kolk and Kislyiy v. Estonia , Applications nos. 23052/04 and 24018/04 , European Court of Human Rights
53 see Streletz , Kessler and Krenz v. Germany, Applications nos. 34044/96, 35532/97 and 44801/98, European Court of
Human Rights; Jorgic v Germany, Application no. 74613/01, European Court of Human Rights
54 see Kononov v. Latvia , Application no. 36376/04, European Court of Human Rights)
55 see Pinochet case, Investigation no. 19/97, Spanish National Court, Central Court of Investigation no. 5; Indictment against
98 Argentinian military, investigation no. 19/97 -L, Spanish National Court, Central Court of Investigation no. 5; Guatemalan
genoci de case, Case no. 331/99, Spanish National Court, Central Court of Investigation no. 1; Adolfo Scilingo case, Judgment
16/2005, Spanish National Court, Third Criminal Chamber)
56 see Demjanjuk v. Petrovsky et al ., 776 F.2d 571 (No. 85 -3435) (United States Court of Appeals, Sixth Circuit
57 see Bordaberry case, IUE 1 -608/2003, First Ins tance Criminal Court, 7th turn
58 see Rule 160, ICRC International Humanitarian Law Datab ases, Vo II, Ch 44, Section E
18
[72] The Convention on Statutory Limitations , recognized in its preamble that it is necessary
and timely to affirm in international law, through this Convention on Statutory
Limitations, the principle that there is no period of limitation for war crimes and crimes
against humanity, and to secure its universal application .
[73] The Convention on Statutory Limitations applies to certain war crimes and crimes
against humanity , including inhuman acts resulti ng from the policy of apartheid ,
irrespective of the date of their commission and even if such acts do not constitute a
violation of domestic law of the country in which they were committed.59
[74] The Inter -American Court of Human Rights in Almonacid Arellano et al v Chile60 held
that jus cogens transcends the law of treaties to in clude general International Law and
it could not be otherwise because of its conceptualization as peremptory law. Even
though the Chilean State had not ratified the Convention on Statutory Limitations, the
Chilean State had to comply with this imperative rule and could not invoke the statute
of limitations .
[75] The non -applicability of statutory limitations to war crimes and crimes against humanity
has been confirmed by multiple regional and domestic courts in France, Argentina, Italy,
Spain, Belgium, the United States and elsewhere, as well as the European Court of
Human Rights.
[76] South Africa has not ratified the Convention on Statutory Limitations. However, as
mentioned supra , since the non -applicability of statutes of limitations to serious
international crimes has become a peremptory norm of international law, South Africa
is bound by such norm whether or not it has ratified the Convention on Statutory
Limitations or not .
[77] Whilst South Africa is not a signatory to this treaty, the principles in the Convention on
Statutory Limitations are part of customary international law. This is clear from the
preamble to the Convention on Statutory Limitations .
59 see Art.I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,
adopted by the General Assembly resolution 2391 (XXIII) of 26 November 1968, entered into force on 11 November 1970) .
60 see Almonacid Arellano et al v Chile, del Rosario Gómez Olivares and ors (on behalf of Almonacid Arellano) v Chile,
Preliminary objections, merits, reparations and costs, IACHR Series C No 154, IHRL 1538 (IACHR 2006), 26th September
2006, Inter -American Court of Human Rights)
19
[78] In the matter of Government of the RSA v Grootboom and Others61 (‘Government of the
RSA’ ), the Constitutional Court held that international treaties that have not been signed,
ratified or enacted into South African law remain persuasive sources of law in the
interpretation of the provisions of the Bill of Rights, by virtue of the operation of s 39(1)(b)
of the Constitution.
[79] Section 39(1)(b) and (c) of the Constitution r equires a court to:
‘When interpreting the Bill of Rights, a court, tribunal or forum…
(b) must consider international law; and
(c) may consider foreign law .’
[80] The Constitutional Court in Government of the RSA62 quoted and applied the earlier
dictum in the Constitutional matter of S v Makwanyane63 (‘Makwanyane’ ) dealing with
section 35(1) of the interim Constitution and stated that :
‘[P]ublic international law would include non -binding as well as binding law. They may both be
used under the section as tools of interpretation. International agreements and customary
international law accordingly provide a framework within which Chapter Three can be evaluated
and understood … ’64
[81] The 2000 Final Report of the Special Rapporteur on Civil and Political Rights concluded
that ‘[s]tatutes of limitations shall not apply for prosecuting violations of international human
rights and humanitarian law norms that constitute crimes under international law’ .65
[82] The Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law ( ‘Right to a Remedy Principles ’) adopted
unanimously by the U nited Nations General -Assembly, on 16 December 2005, provides
in Chapter IV that:
‘6. Where so provided for in an applicable treaty or contained in other international legal
obligations, statutes of limitations shall not apply to gross violations of international human rights
61 RSA v Grootboom and Others 2001 (1) SA 46 (CC)
62 Ibid
63 S v Makwanyane 1995 (3) SA 391 (CC)
64 see Government of the RSA (note 61 above) at para 26; and Makwanyane ibid at para 35
65 see Civil and Political Rights, Including the Questions of: Independence of the Judiciary, Administration of Justice,
Impunity -right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental
freedoms’, ECOSOC, Commission on Human Rights, E/CN.4/2000/62, 18 January 2000. Part IV, at §6.)
20
law and serious violations of international humanitarian law which constitute crimes under
international law .’66
[83] The crimes which the accused are charged with are imprescriptible. Based on South
Africa’s international obligations there can be no time bar for the prosecution of crimes
against humanity. The seriousness of crimes against humanity must be prosecuted
irrespective of when they occurred. Therefore, there is no period within which charges
must be brought. A delay in prosecution is not a defence in law to these crimes, nor
does it waiver the S tate’s right to prosecute.
[84] The Constitutional Court decisions67 have already found that:
(a) The state is obliged to prosecute crimes against humanity, including apartheid -era
crimes that occurred before the Constitution came into force,
(b) international law obliges the State to punish crimes against humanity, and
(c) the practice of apartheid constituted a crime against humanity.
[85] There are arguments before this court tha t s18(1) of Act 51 of 1977 should not be
interpreted to mean that crimes against humanity committed before the commencement
of the ICC Act have prescribed under the 20 -year rule . Furthermore, that s18(1)(g) of
Act 51 of 1977 must be interpreted to encompass all core international crimes, not only
those that took place after the ICC Act's implementation in 2002 , as reading the
exception in any other way would render the provision completely i rrational. It was
argued that s 18(1)(g) of Act 51 of 1977 must also include all core international crimes
even before 2002.
[86] Interpreting s 18(1)(g) of Act 51 of 1977 in a manner that excludes war crimes, crimes
against humanity and genocide that occurred before the 2002 enactment of the ICC Act,
is unfortunate, as it would fly in the face of accepted and established international law .
It would effectively mean that only those who commit the crime of apartheid in
democratic South Africa but not before, would be able to be prosecuted for it. Not only
is this absurd, but it would be plainly unconstitutional, going against the values set out
66 see Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc.
A/Res/60/147 para 6 chapter iv Statutes of Limitations, Dec. 16, 2005)
67 see Basson 1 (note 22 above) , Basson 2 (note 33 above) , National Comissioner (note 35 above) , Government of RSA (note
61 above) and Makwanyane (note 63 above)
21
in our own Constitution, international law, and the interests of justice, in that Parliament
would effectively have provided immunity for all persons who committed the crime of
apartheid during apartheid, because evidently, all those crimes would have happened
in apa rtheid South Africa which was obviously before 2002.
[87] However, as stated supra, the accused in this matter are not charged in terms of s4 of
the ICC Act but rather in terms of s 232 of the Constitution which provides an
independent legal basis for the State to fulfil its obligations under the Constitution and
under international law to prosecute international crimes , includ ing those committed
before 1994 . The crimes for which the accused are being charged with were crimes
under customary international law at the time they were committed in 1982 . As a result,
this Court has focused on s232 of the Const itution and the application thereof to the
present charges .
[88] For crimes committed before 2002, s232 is the primary avenue for prosecution.
Therefore, section 232 allows for the prosecution of apartheid -era crimes under
customary international law and this Court finds that s 232 of the Constitution is a self -
standing basis for prosecuting international crimes . The ICC Act as it stands explicitly
prohibits prosecutions for acts committed before its entry. However, s232 allows for
prosecutions of apartheid -era crimes under customary international law.
[89] The accused assert their entitlement to a fair trial, one that is conducted in a procedurally
fair manner and not prosecuted with any unfair, improper, or unlawful motive. However,
they fail to provid e any basis for the claim that their fair trial rights will be violated. The
only reference to their claim is that the charges have prescribed under section 18(I) of
Act 51 of 1977.
[90] This Court finds that crimes against humanity are part and parcel of South African law
and are not subject to any statute of limitation. The prosecution of the accused complies
with the principle of legality under sectio n 35(3)(I) of the Constitution in that, p rosecution
through s232 does not vio late the principle of legality as it does not retroactively create
new crimes. Instead, it recognises and enforces pre -existing crimes under customary
international law, ensuring that perpetrators are held accountable for actions that were
already considered criminal at the time.
22
[91] Accordingly, the objection raised by the accused, based on the principle of legality as
being a ground for the inability of the State to prosecute the accused for a crime against
humanity of murder, read with s232 of the Constitution , is without merit and is dismissed.
Furthermore, the contention that the State’s right to prosecute them for crimes against
humanity under customary international law having lapsed is also without merit.
Objection to title to prosecute
[92] The matter in casu was referred by the TRC to the N PA and it is clear there have been
delays for many decades to prosecute this matter.
[93] Accused one objects to the title of the N PA to prosecute , given that the N PA and the
Government of South Africa committed ‘gross misconduct ’ by engaging in political
interference in the cases referred by the TRC to the N PA. While accused one is justified
in being offended by the past conduct of the authorities in suppressing the TRC cases
he does not explain how such conduct has violated his right to a fair trial.
[94] This same point was addressed by the full court in Rodrigues v National Director of
Public Prosecutions of South Africa and Others68 (‘Rodrigues 1’) and by the S upreme
Court of Appeal in Rodrigues v The National Director of Public Prosecutions and
Others69 (‘Rodrigues 2 ’). M Rodrigues contended that the lengthy delay in commencing
criminal prosecution, allegedly caused by political interference, caused him trial -related
prejudice in terms of s35(3)(d) of the Constitution, which justified a permanent stay of
prosecution. Both courts expressed their dismay at the political interference but
concluded that the political interference in no way impinged on the right of Mr Rodrigues
to a fair trial. The appeal was dismissed.
[95] Accused one’s counsel held a different view. He argued that in the matter of
Rodrigues , 70 the court dealt with a permanent stay in a civil application which was
denied, and left the criminal court with the duty to address the issues. His argument is
that the challenge in th e matter is casu is different, as it is based on the jurisdiction of
the court and not on a permanent stay or crime.
68 Rodrigues v National Director of Public Prosecutions of South Africa and Others [2019] 3 All SA 962 (GJ)
69 Rodrigues v The National Director of Public Prosecutions and Others [2021] 3 All SA 775 (SCA)
70 Rodrigues (note 68 above) and Ibid
23
[96] This Court does not agree, while the Rodrigues case addressed the question of a
permanent stay of prosecution, it also involved attempts to compel the NPA to make
prosecutorial decisions in TRC -related cases. Whet her the delay is caused by the S tate
or not, the fundamental principles of the Constitution and s232 of the Constitution still
apply to th e matter in casu .
[97] The NPA's handling of the referrals from the TRC have been marked by delays and
challenges despite the TRC's mandate being to promote accountability and justice. The
failure to prosecute those responsible for apartheid -era atrocities has cast a long
shadow over our efforts at reconciliation, especially for f amilies of the victims .
[98] In the matter in casu, the political interference, as regrettable and wrongful as it has
been, will not deny accused one a right to a fair trial, nor has it deprived the N PA the
title to prosecute this case or future cases arising from South Africa’s past.
[99] Trial fairness is not confined to the position of the accused, but extends to society as a
whole, precisely because society has a real interest in the outcome of a case. Section
7(2) of the Constitution mandates that the state must respect, protect, promote, and fulfil
the rights in the Bill of Rights. This duty extends beyond the rights of the accused to
include the rights of victims.
[100] Accord ingly, this objection is also dismissed.
Conclusion
[101] The charges on counts two, three, four and five are not problematic as the indictments
include the crime of apartheid as a reference to the crime un der customary international
law in terms of s232 of the Constitution and not to the crime of apartheid as a crime
against humanity as conceived in the ICC Act.
[102] Section 232 of the Constitution and the ICC Act are both mechanisms for prosecuting
interna tional crimes in South Africa. A lthough they work in conjunction to ensure a
comprehensive framework for addressing international crimes, they have different
scopes and applications. The automatic incorporation of customary international law
through s 232 of the Constitution provides a basis for prosecuting any crime recognised
under customary international law at the time of its commission, regardless of wheth er
25
APPEARANCES
ON BEHALF OF ACCUSED 1: Adv. I Mthembu
Instructed by Legal Aid SA , Johannesburg
ON BEHALF OF ACCUSED 2: Adv. J.G Cilliers SC
(with him Adv. W.S Jungbluth )
Instructed by Du Plooy Incorporated ,
Johannesburg per Kobus Muller
ON BEHALF OF THE STATE : Adv. H.S Ngobeni (with him Adv. M.M Maleleka)
Instructed by the Office of the National
Director of Public Prosecutions, Johannesburg
FOR THE AMICUS CURIAE: Adv. H Varney (with h im Adv. L Brighton)
Instructed by Legal Resources Centre,
Johannesburg