National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14) [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC); 2014 (12) BCLR 1428 (CC) (30 October 2014)

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[2014] ZACC 30
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National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14) [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC); 2014 (12) BCLR 1428 (CC) (30 October 2014)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 02/14
In
the matter between:
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
.................................................................................
Applicant
and
SOUTHERN
AFRICAN HUMAN RIGHTS
LITIGATION
CENTRE
................................................................................................
First
Respondent
ZIMBABWE
EXILES’
FORUM
..............................................................................
Second
Respondent
and
JOHN
DUGARD AND THREE
OTHERS
................................................
First
to Fourth Amici Curiae
TIDES
CENTER
.......................................................................................................
Fifth
Amicus Curiae
PEACE
AND JUSTICE
INITIATIVE
...................................................................
Sixth
Amicus Curiae
CENTRE
FOR APPLIED LEGAL
STUDIES
..................................................
Seventh
Amicus Curiae
Neutral
citation:
National Commissioner of
the South African Police Service v Southern African Human Rights
Litigation Centre and Another
[2014]
ZACC 30
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and
Zondo J
Heard
on:
19 May 2014
Decided
on:
30 October 2014
Summary:
Section 205(3) of the Constitution —
South African Police Service — duty to investigate crime
Section
231(4) of the Constitution — domestication of international
agreements
Section
232 of the Constitution — application of customary
international law
Section
4(3)(c) of the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002 — presence of
an
accused for the purposes of an investigation
Universal
jurisdiction — application — limiting principles
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
North Gauteng High Court, Pretoria):
1.
Leave to appeal is granted.
2.
Subject to paragraph 3 below, the appeal is
dismissed.
3.
The order of the North Gauteng High Court is set
aside and replaced with the following:
“
(a)
The decision of the National Commissioner of the South African Police
Service to decline to investigate the complaint laid by
the Southern
African Human Rights Litigation Centre is reviewed and set aside.
(b)
The South African Police Service must investigate the complaint.”
4.
The applicant must pay the costs of the Southern
African Human Rights Litigation Centre (first respondent) and the
Zimbabwe Exiles’
Forum (second respondent) in this Court, the
Supreme Court of Appeal and the North Gauteng High Court, including
the costs of three
counsel where applicable.
JUDGMENT
MAJIEDT
AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Van der Westhuizen J and Zondo J concurring):
Introduction
[1]
During the course of South Africa’s
transition to a democratic state, former President Nelson Mandela
outlined what was to
become South Africa’s future foreign
policy.  He stated:
“
South
Africa’s future foreign relations will be based on our belief
that human rights should be the core concern of international

relations, and we are ready to play a role in fostering peace and
prosperity in the world we share with the community of nations.
. . .
The time has come for South Africa to take up its rightful and
responsible place in the community of nations.  Though
the
delays in this process, forced upon us by apartheid, make it all the
more difficult for us, we believe that we have the resources
and
the commitment
that
will allow us to begin to make our own positive contribution to
peace, prosperity and goodwill in the world in the very near

future.”
[1]
(Emphasis added.)
[2]
This outline of South Africa’s future
foreign policy is echoed in the preamble of the Constitution where it
is stated:
“
We,
the people of South Africa, . . . adopt this Constitution as the
supreme law of the Republic so as to––
.
. .
Build
a united and democratic South Africa able to take its rightful place
as a sovereign state in the family of nations.”
[3]
The extent of our country’s
responsibilities as a member of the family of nations to investigate
crimes against humanity lies
at the heart of this case.
[4]
This
application for leave to appeal concerns the extent to which the
South African Police Service (SAPS) has a duty to investigate

allegations of torture committed in Zimbabwe by and against
Zimbabwean nationals.  It calls upon us to establish South
Africa’s
domestic and international powers and obligations to
prevent impunity
[2]
and to
ensure that perpetrators of international crimes committed by foreign
nationals beyond our borders are held accountable.
We must
determine what the law requires of us as South Africans and of our
country as part of the community of nations in respect
of these types
of crimes.
[5]
Leave
to appeal is sought against a judgment of the Supreme Court of
Appeal
[3]
dismissing an appeal
against a decision of the North Gauteng High Court, Pretoria (High
Court).  The High Court had issued
a declaratory order that the
applicant’s decision not to investigate the alleged torture in
Zimbabwe of Zimbabwean nationals
by the Zimbabwean police during
March 2007 was unlawful and constitutionally invalid.  The
Supreme Court of Appeal declared
that—
“
on
the facts of this case . . . the SAPS are empowered to investigate
the alleged offences [of torture] irrespective of whether
or not the
alleged perpetrators are present in South Africa; [and] the SAPS are
required to initiate an investigation under the
Implementation of the
Rome Statute of the International Criminal Court Act 27 of 2002 into
the alleged offences.”
Parties
[6]
The applicant is the National Commissioner
of the SAPS (National Commissioner) who is appointed in terms of
section 207(2)
of the Constitution to “control” and
“manage” the police service.  The National
Commissioner is directly
affected by the order of the Supreme Court
of Appeal and is the only applicant before us.
[7]
The first respondent is the Southern
African Human Rights Litigation Centre (SALC), a non-governmental
organisation based in Johannesburg
which is
an initiative of
the International Bar Association and the Open Society Initiative for
Southern Africa.  It provides support
to human rights and public
interest litigation within Southern Africa.  The second
respondent is the Zimbabwe Exiles’
Forum (ZEF), an organisation
concerned with achieving justice and dignity for victims of human
rights violations occurring in Zimbabwe.
Its particular focus
extends to exiled victims of human rights abuses in Zimbabwe.
[8]
Seven amici curiae were admitted and presented both written
and oral argument.  The first four amici are international law
experts with an interest in international criminal law.  The
fifth amicus is the Tides Center, a non-profit public benefit

corporation based in California, which was admitted as an amicus in
this matter before the Supreme Court of Appeal.  The sixth

amicus is the Peace and Justice Initiative (PJI), a
non-governmental organisation registered under Dutch law and
based at
The Hague.  PJI is a network of international law professionals
that comprises many current and former members of
various
international criminal tribunals.  The seventh amicus is the
Centre for Applied Legal Studies (CALS),
a human
rights organisation and law clinic established in 1978 and based at
the University of the Witwatersrand Law School.
We are indebted
to counsel for the parties and the amici for their helpful arguments
on a complex legal question.
Factual
background
[9]
In March 2007, a year before national
elections in Zimbabwe, the Zimbabwean police, allegedly acting on
instructions from the ruling
political party, the Zimbabwe African
National Union – Patriotic Front (ZANU–PF), raided
Harvest House in Harare.  This
is the headquarters of the main
opposition party, the Movement for Democratic Change (MDC).
During the raid more than 100
people were taken into custody,
including workers in nearby shops and offices.  These
individuals were detained for several
days and allegedly tortured by
the Zimbabwean police.  The detention and torture was allegedly
part of a widespread and systematic
attack on MDC officials and
supporters in the run-up to the national elections.
[10]
SALC compiled detailed evidence of the
alleged torture.  It obtained 23 sworn written statements.
Seventeen of the deponents
attested to being tortured whilst in
police custody.  These deponents stated that they were subjected
to severe pain and suffering,
as a result of beatings with iron bars
and baseball bats, waterboarding, forced removal of their clothing,
and electric shocks
applied to their genitals and thighs.  They
were also subjected to mock executions during which they were hooded
and a gun
was pressed against their heads.  The deponents
further stated that they were tortured in order to obtain confessions
regarding
their purported involvement with the MDC.  The
remaining six affidavits, deposed to by Zimbabwean lawyers, medical
practitioners
and family members of the victims, corroborated the
torture allegations.
[11]
Out
of concern about the alleged collapse of the rule of law in Zimbabwe,
the safety of the victims and the possibility that the
Zimbabwean
courts would not hold the perpetrators accountable, SALC collated the
evidence into a dossier (torture docket).
This was
hand-delivered to the Priority Crimes Litigation Unit (PCLU) of the
National Prosecuting Authority (NPA)
[4]
on 16 March 2008, slightly less than a year after the Harvest House
incident.  The torture docket was submitted to the PCLU
together
with a comprehensive memorandum (SALC memorandum) in which the
substance and procedure of prosecuting crimes against humanity
were
outlined.
[5]
In order to
protect the safety of the torture victims, it was agreed between
representatives of SALC and the PCLU that the
names of the victims
and of the alleged perpetrators would be kept strictly confidential.
As a result, these names do not
appear in the papers.
Furthermore, the torture docket itself is not part of the
papers.  The SALC memorandum and the
accompanying evidence in
the torture docket are of crucial importance in this case.  They
consist of more than 50 pages of
detailed legal and factual
submissions providing guidelines on the prosecution of crimes against
humanity such as torture.
The SALC memorandum concludes by
requesting the NPA, through the PCLU, to consider the memorandum and
the evidence so that it may
expeditiously decide whether to initiate
an investigation, under the Implementation of the Rome Statute of the
International Criminal
Court Act
[6]
(ICC Act), into the alleged acts of torture.  SALC also
proffered its assistance for “
the
further gathering of evidence
and/or
provision of advice regarding international criminal law in relation
to the acts alleged against the named perpetrators”.
[7]
[12]
The
gravamen of SALC’s submissions is that South African
law-enforcement agencies are legally obliged under the ICC Act to

investigate international crimes (including torture) and to hold the
perpetrators of these crimes accountable in South African

courts.  Not all instances of torture constitute crimes against
humanity, but it was undisputed that if the allegations in
this case
are proved, the conduct of the Zimbabwean police officers could
amount to crimes against humanity and thus an international
crime.
The SALC memorandum sought the investigation of the alleged
crime of torture not only against the Zimbabwean police,
but also
against their superiors in the police and in government on the basis
of the doctrine of “command responsibility”.
[8]
It was not at issue during the proceedings in the High Court,
the Supreme Court of Appeal or this Court that the torture
complaints
were never brought to the attention of the Zimbabwean law-enforcement
agencies.  On the contrary, the case has
been conducted
throughout on the basis that the Zimbabwean authorities have failed
to act on the torture allegations.  SALC
attached reports by
reputable human rights organisations to its founding affidavit in the
High Court.  It averred that these
reports not only confirmed
the widespread and systematic torture alleged in the torture docket,
but also demonstrated that the
perpetrators were not being prosecuted
and were acting effectively without restraint.  In its answer
the SAPS did not deny
these assertions, electing instead to dismiss
them as inadmissible evidence.  The reports do not form part of
the record in
this Court.  Nevertheless, given that the SAPS did
not actively deny SALC’s allegations, there is enough before us
to
form the ineluctable conclusion that the Zimbabwean authorities
have failed to act on the torture allegations.
[13]
SALC’s approach to the NPA was met
with inertia.  Spurred on by a further letter of enquiry from
SALC, the Acting National
Director of Public Prosecutions (NDPP),
Advocate Mpshe SC, finally replied more than eight months after the
submission of the torture
docket.  The NDPP stated that SALC’s
representations had been considered, but that the allegations first
had to be evaluated
by the SAPS before the NPA could take a
decision.  He had therefore referred the matter to the
Acting National Commissioner
of the SAPS, Mr Tim Williams (Mr
Williams), for this purpose.  SALC responded expressing its
disappointment with what it regarded
as an “inordinate delay”.
It repeated its offer of assistance in identifying and
transporting witnesses from
Zimbabwe to South Africa and requested
that a final decision be made by 30 January 2009.  This letter
was sent not only to
the NDPP, but also to Mr Williams, and to
Advocate Anton Ackerman SC (Mr Ackerman), the Head of the PCLU. The
latter was the
only recipient to respond, but he simply reiterated
that the NDPP had referred the matter to the SAPS for its
consideration.
[14]
SALC directed its last letter on 20 April
2009, before the litigation, to these parties as well as to the
Director-General of the
Department of Justice and Constitutional
Development.  The deadline of 1 May 2009 for a decision on
whether to initiate an
investigation was not met.  Instead the
NDPP sent a letter on 19 June 2009 informing SALC that he
had been advised
by Mr Williams that the SAPS did not intend to
initiate an investigation.
[15]
The reasons for this decision were
furnished in a letter sent by Mr Williams to the NDPP, who later
endorsed them.  They were
that the SAPS was unable to initiate
an investigation because the matter had been inadequately
investigated and that further investigations
would be impractical,
legally questionable and virtually impossible.  The letter
states:
“
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 [ICC]
Act. .
. .  At this stage, the docket contains nothing more than mere
allegations and I do not see my way clear [of] involving
the SAPS in
an investigation, the legality of which is questionable and which can
have far-reaching implications for the [SAPS]
and the country in
general.”
The
High Court
[16]
SALC and ZEF applied to the High Court for
an order reviewing and setting aside the decision not to
investigate.  The High
Court granted the application in more
detailed terms than the relief originally sought in the amended
notice of motion.  This
relief came about after the High Court
invited the parties to propose an expanded order.  The High
Court ordered that the
decision of the first, second and fourth
respondents in that Court (the NDPP, the Head of the PCLU and the
National Commissioner
respectively), refusing to initiate an
investigation under the ICC Act, be reviewed and set aside.  It
further held that the
decision was inconsistent with the Constitution
and South Africa’s international law obligations.
Supreme
Court of Appeal
[17]
The Supreme Court of Appeal upheld the High
Court’s decision but trimmed down its order considerably.
Importantly, the
Court ordered that the SAPS must initiate an
investigation into the alleged acts of torture.  In contrast,
the High Court
ordered that the NDPP, the Head of the PCLU and the
National Commissioner only reconsider their original decision.
The Supreme
Court of Appeal’s order, in part, reads:
“
3.
The order of the court below is set aside and substituted as follows:
3.1.
The decision of the South African Police Service (the SAPS) taken on
or about 19 June 2009, to not investigate the complaints
laid by the
Southern African Human Rights Litigation Centre (the complainants)
that certain named Zimbabwean officials had committed
crimes against
humanity against Zimbabwean nationals in Zimbabwe (the alleged
offences), is reviewed and set aside.
3.2.
It is declared that, on the facts of this case:
3.2.1.
the SAPS are empowered to investigate the alleged offences
irrespective of whether or not the alleged perpetrators are present

in South Africa;
3.2.2.
the SAPS are required to initiate an investigation under the
Implementation of the Rome Statute of the International Criminal

Court Act 27 of 2002 into the alleged offences.”
[18]
Like
the High Court, the Supreme Court of Appeal held that the
Constitution, the South African Police Service Act
[9]
(SAPS Act) and the ICC Act required the SAPS to initiate an
investigation into the torture allegations.  A significant part

of the Supreme Court of Appeal’s underlying reasons for this
finding concerned the interpretation of section 4 of the ICC
Act.
Leave
to appeal
[19]
This
application for leave to appeal raises a constitutional issue.
This Court is required to consider the extent to which
section 205(3)
of the Constitution imposes a duty on the SAPS to investigate the
crimes against humanity of torture allegedly committed
in Zimbabwe by
and against Zimbabwean nationals.
[10]
Leave to appeal should be granted.
In
this Court
[20]
The National Commissioner attacks the
Supreme Court of Appeal’s judgment on three primary grounds,
namely that it: (a) adopted
an absolutist position on universal
jurisdiction; (b) granted relief not sought; and (c) predetermined
the manner in which the
SAPS is required to exercise its
investigatory discretion.
[21]
We have to determine whether, in the light
of South Africa’s international and domestic law obligations,
the SAPS has a duty
to investigate crimes against humanity committed
beyond our borders.  If so, under which circumstances is this
duty triggered?
International
law and the South African Constitution
[22]
It
is appropriate to start this enquiry by understanding the place of
international law within the Constitution.  In
Glenister
II
,
[11]
Ngcobo CJ enunciated the significance of international law to the
Constitution:
“
Our
Constitution reveals a clear determination to ensure that the
Constitution and South African law are interpreted to comply with

international law, in particular international human-rights law. . .
. These provisions of our Constitution demonstrate that international

law has a special place in our law which is carefully defined by the
Constitution.”
[12]
[23]
The
Constitution enjoins South African courts, tribunals and other fora
to consider international law when interpreting the Bill
of
Rights
[13]
and provides that
legislation must be interpreted purposively
[14]
in accordance with international law.
[15]
Section 231(4) provides for the domestication of international law
through national legislation.  It reads that “[a]ny

international agreement becomes law in the Republic when it is
enacted into law by national legislation”.  Section 232

states that “[c]ustomary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act
of
Parliament
”
.
[24]
The
Constitution provides that: (a) customary international law is part
of our domestic law insofar as it is not inconsistent with
the
Constitution or an Act of Parliament; (b) international treaty law
only becomes law in the Republic once enacted into domestic

legislation; and (c) national legislation should, in turn, be
interpreted in the light of international law that has not been
domesticated into South African law by national legislation but
that is nonetheless binding upon it.
[16]
Jurisdiction
in international law
[25]
The
next stage of the enquiry requires us to examine jurisdiction in an
international law context.  The exercise of domestic
criminal
jurisdiction is understood to manifest at three levels:
[17]
(a) prescriptive (or legislative) jurisdiction which empowers states
through their common law or domestic legislation to prohibit
certain
conduct; (b) adjudicative (or judicial) jurisdiction which authorises
states to enforce the proscribed conduct by means
of, amongst other
things, investigations and prosecutions; and (c) enforcement (or
executive) jurisdiction by which states are
capacitated to determine
the outcome of matters pursued through the exercise of adjudicative
jurisdiction by, for example, enforcing
decisions on proscribed
conduct.
[26]
In
the
Lotus
Case
,
[18]
the Permanent Court of International Justice, the predecessor to the
International Court of Justice, laid down two complementary

principles of territoriality, namely that states: (a) may not
exercise their power in any form in the territory of another state,

unless there is a permissive rule to the contrary; and (b) retain a
wide measure of discretion to exercise jurisdiction within
their own
territory, with regard to acts committed beyond their borders.
The second principle allows states to exercise prescriptive,

adjudicative and enforcement jurisdiction solely within the confines
of their territory.
[27]
Alongside
the principle of territoriality, international law recognises four
other grounds or bases on which domestic criminal jurisdiction
may be
founded (
rationes jurisdictionis
).
These are nationality, passive personality, the protective principle
and universality or universal jurisdiction.
[19]
The Rome Statute,
[20]
which is
discussed further below, bases the jurisdiction of the ICC on the
first two conventional bases of jurisdiction, namely
territoriality
or nationality.
[21]
Universal jurisdiction is not accorded to the ICC.  However, the
exercise of universal jurisdiction has found support
in international
law, subject to the observance of certain principles.
[28]
International
law scholars suggest that in order for universal jurisdiction to
comply with the dictates of international law, three
general
principles should be observed: (a) “there should be a
substantial and bona fide connection between the subject-matter
and
the source of the jurisdiction”; (b) “the principle of
non intervention in the domestic or territorial jurisdiction
of
other states should be observed”; and (c) “elements of
accommodation, mutuality, and proportionality should be applied”.
[22]
[29]
The exercise of enforcement jurisdiction is
confined to the territory of the state seeking to invoke it.
The principle of
non-intervention safeguards the principle of
territoriality.  Domestic criminal jurisdiction based on
universality therefore
applies to prescriptive jurisdiction but can
also apply to adjudicative jurisdiction, subject to the constraints
of territoriality.
Accordingly, investigations and the exercise
of adjudicative jurisdiction confined to the territory of the
investigating state
are not at odds with the principles of universal
jurisdiction.  I now turn to consider the principle of
complementarity under
the Rome Statute.
Complementarity
under the Rome Statute
[30]
The
ICC, created by the Rome Statute, exercises complementary
jurisdiction over the most serious crimes of international concern.

These include the crimes against humanity of torture.
[23]
International criminal law and the ICC system in particular are
premised on the principle of complementarity.
[24]
States parties may take the lead in investigating and prosecuting
international crimes.
[25]
The
ICC will only undertake investigations and prosecutions as a court of
last resort where states parties are unwilling or unable
to do so.
The primary responsibility to investigate and prosecute international
crimes remains with states parties.
[26]
[31]
The
preamble to the Rome Statute affirms that states parties are
determined “to put an end to impunity for the perpetrators
of
[grave] crimes and thus to contribute to the prevention of such
crimes” and it recalls “that it is the
duty
of
every State to exercise its criminal jurisdiction over those
responsible for international crimes”.
[27]
[32]
The need for states parties to comply with
their international obligation to investigate international crimes is
most pressing in
instances where those crimes are committed by
citizens of and within the territory of countries that are not
parties to the Rome
Statute, because to do otherwise would permit
impunity.  If an investigation is not instituted by
non-signatory countries
in which the crimes have been committed, the
perpetrators can only be brought to justice through the application
of universal jurisdiction,
namely the investigation and prosecution
of these alleged crimes by states parties under the Rome Statute.
South
Africa’s jurisdiction in respect of the international crime of
torture
[33]
South
Africa was the first African state to domesticate the Rome Statute
into national legislation.  This was done in terms
of section
231(4) of the Constitution through the enactment of the ICC Act.
[28]
The international crimes over which the ICC exercises
jurisdiction,
[29]
including
the crimes against humanity of torture, are listed in schedule 1 to
the ICC Act and have thus become statutory crimes
in our national
law.
[34]
It
is clear that a primary purpose of the Act is to enable the
prosecution, in South African courts or the ICC, of persons accused

of having committed atrocities, such as torture, beyond the borders
of South Africa.
[30]
In
enacting the ICC Act, South Africa declared its commitment to—
“
bringing
persons who commit such atrocities to justice, either in a court of
law of 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 . . . , 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 [ICC]”.
[31]
[35]
Torture,
even if not committed on the scale of crimes against humanity, is
regarded as a crime which threatens “the good order
not only of
particular states but of the international community as a
whole”.
[32]
Coupled with treaty obligations,
[33]
the ban on torture has the customary international law status of a
peremptory norm from which no derogation is permitted.
[34]
[36]
As
a result of the absolute ban on torture, “the torturer has
become, like the pirate or the slave trader before him,
hostis
humani generis
,
an enemy of all [hu]mankind”.
[35]
This statement, albeit in a civil case, applies equally to criminal
cases.  Torture attracts universal condemnation
and all nations
have an interest in its prevention, regardless of the nationality of
the perpetrator or of the place where it has
occurred.  The
Court in
Filártiga
held
further that “an act of torture committed by a state official
against one held in detention violates established norms
of the
international law of human rights, and hence the law of nations”.
[36]
[37]
Along
with torture, the international crimes of piracy, slave-trading, war
crimes, crimes against humanity, genocide and apartheid
[37]
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”.
[38]
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 international law prohibition against torture
has the status of a peremptory norm.
[39]
[38]
Furthermore,
along with genocide
[40]
and
war crimes
[41]
there is an
international treaty law obligation to prosecute torture.
[42]
The Convention against Torture, an international convention drafted
specifically to deal with the crime of torture, obliges
states
parties to “ensure that all acts of torture are offences under
its criminal law”, together with an “attempt
to commit
torture” and “complicity and participation in
torture”.
[43]
[39]
South
Africa has fulfilled this international law obligation through the
recent enactment of the Torture Act.
[44]
In effect, torture is criminalised in South Africa under section 232
of the Constitution and the Torture Act whilst torture
on the scale
of crimes against humanity is criminalised under section 232 of the
Constitution, the Torture Act and the ICC Act.
Regional and
sub-regional law also permits South Africa to take necessary
measures against crimes against humanity, including
torture.
[45]
[40]
Because of the international nature of the
crime of torture, South Africa, in terms of sections 231(4), 232 and
233 of the Constitution
and various international, regional and
sub-regional instruments, is required, where appropriate, to exercise
universal jurisdiction
in relation to these crimes as they offend
against the human conscience and our international and domestic law
obligations.
The exercise of universal jurisdiction is,
however, subject to certain limitations.
Is
presence a requirement for the investigation of international crimes?
[41]
The answer to this enquiry lies in the
proper interpretation of the provisions of section 4 of the ICC Act
which regulates the jurisdiction
of South African courts in respect
of international crimes. Section 4(1) and (3) reads:
“
(1)
Despite anything to the contrary in any other law of the Republic,
any person who commits a crime, is guilty of an offence and
is liable
on conviction to a fine or imprisonment, including imprisonment for
life, or such imprisonment without the option of
a fine, or both a
fine and such imprisonment.
.
. .
(3)
In order to secure the jurisdiction of a South African court for
purposes of this Chapter
, any person who commits a crime
contemplated in subsection (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 commission 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.”  (Emphasis added.)
[42]
Section 4(1) creates crimes and
punishment.  Section 4(3) sets the limits to universal
jurisdiction.  When a person commits
an envisaged crime outside
of the Republic our courts will have jurisdiction only if at least
one of the connecting factors is
present.  The accused person
must be a citizen of, or ordinarily resident in, our country, must
have committed the crime against
a citizen or a person ordinarily
resident within the country, or must be present in the country after
the commission of the offence.
[43]
Only
the connecting factor in section 4(3)(c) requiring presence of the
accused bears some relevance to the facts in this matter.
On
the back of section 4(3)(c) the SAPS contends that it has no duty to
investigate the alleged torture in Zimbabwe because the
suspects are
not present in South Africa.  That contention, however, holds
true only as far as the prosecution of a crime
in a South African
court is concerned.  Our Constitution requires that an accused
person be present during her or his trial,
[46]
but it does not set presence as a requirement for an investigation.
More precisely, section 4(3) sets the jurisdictional
limits of South
African courts.  However, it is silent on the circumstances
under which our country has the duty to investigate
international
crimes committed outside of our territory.
[44]
The Supreme Court of Appeal held that
“anticipated presence” of the suspects in South Africa
would suffice for purposes
of the connecting factor required in
section 4(3).  The amici contend forcefully that no
presence of any sort is required
by the Constitution, the ICC Act or
international law for an investigation to be initiated.  They
argue that imposing this
requirement would render the ICC Act less
effective by limiting its application solely to the South African
territory.
[45]
On
the other hand, the SAPS argues that section 4(3) of the ICC Act
requires the suspect’s presence in South Africa before
any
investigation may commence.  In this regard it relies heavily on
writings by certain commentators to the effect that “[u]niversal

jurisdiction cannot sensibly be an absolute right of jurisdictional
competence (such that any and every state is empowered to investigate

and prosecute the occurrence of an international crime)”.
[47]
[46]
There
is no unanimity amongst international law scholars on whether
presence is a requirement for investigation.  The debate
is
largely centred on adjudicative jurisdiction for the purposes of
prosecution, an aspect which needs not concern us in this case.
[48]
We are seized with an enquiry into whether presence is a factor at
all when it comes to the exercise of universal jurisdiction
for an
investigation
of
an international crime.  Paragraph 3(b) of the 2005 Resolution
of the Institut de Droit international declares that the
accused’s
presence is required to exercise universal jurisdiction “
apart
from acts of investigation and requests for extradition
”
.
[49]
It permits investigations in the absence of a suspect, but requires
that the accused be present before the trial starts.
[50]
This reasoning is in line with the Rome Statute which distinguishes
between investigation and prosecution in Part V.
[51]
Article 17 of the Rome Statute, which concerns the admissibility of
cases, also draws a distinction between investigation
and prosecution
and by implication leaves it to states parties to determine where to
draw the line between these two phases of
criminal proceedings.
[47]
The
Supreme Court of Appeal undertook an informative examination of
comparative foreign and international law, which we need not
repeat
here.
[52]
It would
appear that the predominant international position is that presence
of a suspect is required at a more advanced
stage of criminal
proceedings, when a prosecution can be said to have started.
This position accords with the section 4(3)
requirement of presence
for the purposes of prosecution.  In regard to presence for
purposes of investigation, customary international
law is less
clear.
[53]
Scholars
point out, however, that presence is generally not required for an
investigation and there is no international law
rule that imposes
that requirement.
[54]
This reasoning conforms to our Constitution which requires an accused
“to be present when being tried”.
[55]
Accordingly, the exercise of universal jurisdiction, for purposes of
the investigation of an international crime committed
outside our
territory, may occur in the absence of a suspect without offending
our Constitution or international law.
[48]
This
approach is to be followed for several valid reasons.  Requiring
presence for an investigation would render nugatory the
object of
combating crimes against humanity.  If a suspect were to enter
and remain briefly in the territory of a state party,
without a
certain level of prior investigation, it would not be practicable to
initiate charges and prosecution.  An anticipatory
investigation
does not violate fair trial rights of the suspect or accused person.
A determination of presence or anticipated
presence requires an
investigation in the first instance.  Ascertaining a current or
anticipated location of a suspect could
not occur otherwise.
Furthermore, any possible next step that could arise as a result of
an investigation, such as a prosecution
or an extradition request,
requires an assessment of information which can only be attained
through an investigation.  By
way of example, it is only once a
docket has been completed and handed to a prosecutor that there can
be an assessment as to whether
or not to prosecute.
[56]
[49]
The
alleged acts of torture were perpetrated in Zimbabwe, by and against
Zimbabwean nationals.  None of the perpetrators is
present in
South Africa.  However, the duty to combat torture travels
beyond the borders of Zimbabwe.  Torture, as a
crime against
humanity, is listed in schedule 1 to the ICC Act and forms part of
the category of crimes in which all states have
an interest under
customary international law.
[57]
South Africa may, through universal jurisdiction, assert prescriptive
and, to some degree, adjudicative jurisdiction by investigating
the
allegations of torture as a precursor to taking a possible next step
against the alleged perpetrators such as a prosecution
or an
extradition request.  The contention by the SAPS that it could
not investigate without a suspect’s presence must
therefore
fail.
The
duty on the SAPS to investigate international crimes
[50]
Our international law commitments to
investigate crimes against humanity, including torture, must be
discharged through our law-enforcement
agencies.  Section 205(3)
of the Constitution outlines the SAPS’s constitutional duties.
It states:
“
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law.”
[51]
In
Glenister
II
, Moseneke DCJ and Cameron J, writing
for the majority, stated:
“
It
is equally clear that the national police service, amongst other
security services, shoulders the
duty
to
prevent, combat and
investigate
crime”.
[58]
(Emphasis added.)
[52]
Section 205(2) of the Constitution further
provides:
“
National
legislation must establish the powers and functions of the police
service and must enable the police service to discharge
its
responsibilities effectively, taking into account the requirements of
the provinces.”
[53]
Section
17C(1) of the SAPS Act, the national legislation enacted in terms of
section 205(2) of the Constitution, establishes the
Directorate for
Priority Crime Investigation (DPCI, commonly known as the Hawks)
within the SAPS.  Section 17D(1)(a)
of that Act provides
that the functions of the Hawks “are to prevent, combat and
investigate
national
priority offences, which in the opinion of the National Head of the
Directorate need to be addressed by the Directorate”.
[59]
In section 17A, national priority offences are defined to mean
“organised crime,
crime
that requires national prevention or investigation
,
or
crime which requires specialised skills in the prevention and
investigation thereof
,
as referred to in section 16(1)”.
[60]
[54]
Section 16(1) refers to crimes listed in
section 16(2)(iA) that identifies national priority offences as the
“commission of
any alleged offence mentioned in the Schedule”.
Item 4 of the schedule to the SAPS Act states that a national
priority
offence includes “any offence referred to in Schedule
1 to the [ICC Act]”.  Item 1(f) of part 2 of schedule 1 to

the ICC Act includes the crime against humanity of torture as a
national priority offence that requires national prevention or

investigation.
[55]
The
Supreme Court of Appeal held that the SAPS has the requisite power to
investigate the allegations of torture.  I would
go further.
There is not just a power, but also a duty.  While the
finding that the SAPS does have the power to investigate
is
unassailable, the point of departure is that the SAPS has a duty to
investigate the alleged crimes against humanity of torture.
That
duty arises from the Constitution read with the ICC Act, which we
must interpret in relation to international law.
[61]
[56]
The
Constitution and the ICC Act make it clear that, whilst empowered to
investigate crime, the SAPS also bears a duty to do so.
This
emerges from the interpretation of section 205(3) of the Constitution
in
Glenister
II
,
read with the relevant provisions outlined above.  By way of
contrast, section 179(2) of the Constitution affords the prosecuting

authority a “power” and thus a discretion to institute
criminal proceedings.
[62]
The word “power” does not appear in section 205(3) of the
Constitution in relation to investigating crime.
[57]
The statutory designation of international
crimes under the SAPS Act domesticated into our law by the ICC Act
requires the SAPS
to prioritise these types of crimes and indeed
imposes a duty on it to do so. For present purposes we must focus on
the investigation
of one type of domesticated international crime,
the crime of torture.
[58]
There
is a further ground that underscores this duty.  This is the
mutual assistance available between the SAPS and the PCLU
within the
NPA.  In terms of section 17D(3) of the SAPS Act, the Head of
the Hawks may request the NPA to assist in the investigation
of a
national priority offence.
[63]
In turn, section 13(1)(c) of the NPA Act permits the President to
appoint Special Directors to perform the functions assigned
to them
by the President.  Section 24(3) provides that Special Directors
shall exercise the powers, carry out the duties and
perform the
functions conferred, imposed on or assigned to them by the President.
By a proclamation dated 24 March 2003,
Mr Ackerman was
appointed by the President as a Special Director with a mandate “to
manage and direct the investigation and
prosecution of crimes
contemplated in [the ICC Act]”.
[59]
Section
24(7) of the NPA Act provides that a Special Director who is of the
opinion that a matter connected with or arising out
of an offence
requires further investigation may request assistance from the SAPS.
The SAPS is then obliged to comply with the
request for assistance
“so far as [is] practicable”.
[64]
[60]
The effect of the relevant domestic legal
provisions is that—
(a)
torture as a crime against humanity is proscribed as a crime under
our domestic law in terms of section 232 of the Constitution
and
section 4(1) of the ICC Act;
(b)
the SAPS is permitted under international law and has a duty in our
domestic law to investigate crime and, in particular, high
priority
crimes like torture as a crime against humanity and the customary
international law nature of the crime of torture underscores
the duty
to investigate this type of crime; and
(c)
the SAPS, and in particular the Hawks as the specialised unit within
the SAPS, has the obligation in our domestic law to investigate

torture in terms of section 4(1) of the ICC Act.
[65]
Limiting
the duty to investigate international crimes
[61]
We have found that our applicable
legislative scheme, understood in the light of international
customary law and other international
obligations, places an
obligation on our country through the SAPS to investigate crimes
against humanity, including torture, committed
outside our
territory.  However, the universal jurisdiction to investigate
international crimes is not absolute.  It
is subject to at least
two limitations.  The first limitation arises from the principle
of subsidiarity.  It requires
that ordinarily there must be a
substantial and true connection between the subject-matter and the
source of the jurisdiction.
And once jurisdiction is properly
founded, the principle of non-intervention in the affairs of another
country must be observed;
investigating international crimes
committed abroad is permissible only if the country with jurisdiction
is unwilling or unable
to prosecute and only if the investigation is
confined to the territory of the investigating state.  Simply
put, we may not
investigate or prosecute international crimes in
breach of considerations of complementarity and subsidiarity.
[62]
These considerations require that South
African investigating institutions may investigate alleged crimes
against humanity committed
in another country by and against foreign
nationals only if that country is unwilling or unable to do so
itself.  In this
matter Zimbabwe was not asked by the alleged
victims of torture to investigate the crime.  Some of the
reasons advanced for
approaching South Africa directly were several
indications of the collapse of the rule of law in Zimbabwe and that
the safety of
the witnesses in Zimbabwe could not be guaranteed.
As a Court, we cannot go that far.  It suffices to say that it
was
very unlikely that the Zimbabwean police would have pursued the
investigation with the necessary zeal in view of the high profile

personalities to be investigated.  It is alleged that six
Cabinet Ministers and Directors General and the ruling party itself

are implicated as suspects in the commission of these crimes against
humanity.  If Zimbabwe were able and willing to investigate
and
prosecute the alleged crimes of torture, there would be no place for
South Africa also to do so.
[63]
The second limiting principle is
practicability.  Before our country assumes universal
jurisdiction it must consider whether
embarking on an investigation
into an international crime committed elsewhere is reasonable and
practicable in the circumstances
of each particular case.  That
decision must be made in the light of all the relevant
circumstances.  None of these factors
alone should be
dispositive of the enquiry.  Each case must be determined on its
own merits and circumstances.
[64]
Foremost amongst these considerations are
whether the investigation is likely to lead to a prosecution and
accordingly whether the
alleged perpetrators are likely to be present
in South Africa on their own or through an extradition request; the
geographical
proximity of South Africa to the place of the crime and
the likelihood of the suspects being arrested for the purpose of
prosecution;
the prospects of gathering evidence which is needed to
satisfy the elements of a crime; and the nature and the extent of the
resources
required for an effective investigation.  In some
instances a preliminary investigation to test the reasonableness of
undertaking
a full-blown investigation may be necessary.  In
each case the ultimate enquiry is whether, all relevant
considerations weighed,
the SAPS acted reasonably in declining to
investigate crimes against humanity committed in another country.
Analysis
of the SAPS’s duty and the applicable test with reference to
the facts
[65]
During early January 2009 Mr Williams
referred SALC’s covering letter, the SALC memorandum and the
torture docket to the Divisional
Commissioner: Detective Service,
Commissioner Lalla, who in turn referred them to the Head: Legal
Support: Crime Operations, Assistant
Commissioner Jacobs.
[66]
Assistant
Commissioner Jacobs tasked Senior Superintendent Bester, at that time
the Commander of the unit within the SAPS commonly
known as “Crimes
Against the State”, with the evaluation of the torture docket,
with a specific request to ascertain
what type of further
investigation, if any, was necessary.  Senior Superintendent
Bester concluded that the statements in
the docket were “
not
sufficient to sustain any form of prosecution
[and]
did not constitute evidence and could at best and without
verification and/or corroboration amount to nothing more than mere

allegations”.
[66]
He concluded further that—
“
[i]t
was clear to [him that]
the
matter would clearly have to be reinvestigated in its entirety
and
that what was before [him was] nothing more than an indication of
possible witnesses and a broad outline on what they could
possibly
testify to”.  (Emphasis added.)
[67]
Nearly
one year after the evaluation by Senior Superintendent Bester, the
Head of the Hawks, Lieutenant General Dramat, sought the
assistance
of Brigadier Marion.
[67]
Brigadier Marion was placed in possession of the torture docket, the
SALC memorandum and SALC’s founding papers in
the review
application.  By this time the review application had been
instituted.
[68]
Brigadier Marion identified a number of
shortcomings in the torture docket that required follow-up.
These included that––
(a)
many of the statements had not been signed or attested to;
(b)
none of the statements indicated that the witnesses required an
investigation by the South African authorities nor did they
confirm
that they were prepared to testify in a South African court;
(c)
in several instances the names of the alleged police torturers had
been spelt differently;
(d)
not all the alleged police torturers implicated by the deponents had
been included in the list of implicated suspects;
(e)
many of the witnesses’ statements would have to be taken down
again and this would have to be done in Zimbabwe for the
pointing out
of the scenes of the alleged torture;
(f)
further corroborative statements, particularly from fellow detainees
or impartial state officials, were required in respect
of key events;
(g)
all relevant documents maintained by the Zimbabwean police, for
example dockets, cell registers, pocket books and occurrence
books,
would have to be seized for investigative purposes;
(h)
prison records, court records and medical reports in respect of some
of the victims would have to be obtained;
(i)
photographs of the relevant scenes would have to be taken; and
(j)
the implicated parties would have to be approached, informed of the
allegations against them and provided with an opportunity
to raise a
defence that would have to be investigated.
[69]
Like
Senior Superintendent Bester, Brigadier Marion concluded that “[t]he
allegations of torture would have to be re-investigated
from
scratch”.  Ironically, Brigadier Marion concluded further
that “[w]ere I to take the dossier compiled by
[SALC] to a
South African prosecutor, I have no doubt that he or she would not be
prepared to make a decision on the matter, but
[would]
direct
that the further investigations outlined above
,
be conducted”.
[68]
[70]
Based on the evaluations by Senior
Superintendent Bester and Brigadier Marion, Mr Williams stated
in his answering affidavit
that the assertion by SALC that the
torture docket constituted a prosecutable case “is
unsubstantiated, nonsensical and conclusively
disproved”.
He also stated that he had been advised that a court will not order
the reconsideration of a decision not
to investigate “where
such investigation will be tantamount to a
brutum
fulmen
[useless step]”.
These strongly worded conclusions are not borne out by the facts and
the law.  Moreover, the reasons
furnished by Mr Williams under
Rule 53(1)(b) of the Uniform Rules of Court contain a number of
factual and legal misconceptions.
[71]
The emphasis on a “court-directed”
investigation by Brigadier Marion and adopted by Mr Williams in his
answering affidavit
is misplaced.  What the SAPS was being asked
to consider was not a complete, perfectly trial-ready investigation,
but the
commencement of an investigation to determine the prima facie
veracity of the torture allegations with a view to placing a docket,

supplemented as may have been necessary, before the prosecutor for a
decision whether or not to prosecute.  It appears to
have
completely escaped the relevant SAPS senior officials that the Head
of the Hawks could call upon the PCLU for assistance in
an
investigation of this nature in terms of section 17D(3) of the SAPS
Act.  They failed to utilise this valuable specialised
resource.
[72]
All that the SAPS had done through Senior
Superintendent Bester and Brigadier Marion was to undertake a
critical armchair review
of the torture docket and the SALC
memorandum and to list the shortcomings that necessitated further
investigation or a complete
re-investigation.  That approach
begs the very question that was being asked of them by SALC and ZEF.
But the position
is exacerbated by the SAPS’s fatal
misconceptions on the facts and the law emanating from Mr Williams’s
official
reasons for the decision not to prosecute.
[73]
The SAPS advanced as its first reason that
it has no extra-territorial jurisdiction and that the mere
anticipated presence of a
suspect at some future time in this country
was not sufficient to clothe the SAPS with the requisite power and
jurisdiction.
As set out above, this is a misconception of the
SAPS’s domestic legal duty.  And, for the reasons stated
previously,
presence of any kind, even anticipated presence, is not a
prerequisite for an investigation into the torture allegations.
[74]
A
second reason given was that any investigation would be potentially
harmful to South Africa–Zimbabwe relations on a political

front.  The cornerstone of the universality principle, in
general, and the Rome Statute, in particular, is to hold torturers,

genocidaires, pirates and their ilk, the so-called
hostis
humani generis
,
the enemy of all humankind,
[69]
accountable for their crimes, wherever they may have committed them
or wherever they may be domiciled.  An approach like the
one
adopted by the SAPS in the present case undermines that very
cornerstone.  Political inter-state tensions are, in most

instances, virtually unavoidable as far as the application of
universality, the Rome Statute and, in the present instance, the
ICC
Act is concerned.
[75]
Third, the SAPS pointed out that it was
required to conduct an impartial investigation and that the
assistance proffered by SALC
was highly problematic.  This was
so because SALC was said not to be impartial and would, in any event,
be tantamount to the
representatives of SALC acting as “covert
agents” of the SAPS in Zimbabwe, something not permitted by the
international
law doctrine of state sovereignty.  This is a
startling proposition.  Any complainant in a criminal matter has
a vested
interest in the outcome of an investigation, namely that
justice be done.  SALC is in no different a position to any
other
complainant.  What matters most is that the SAPS itself
maintains impartiality in an investigation.  The averment that

SALC would be conducting “espionage” on behalf of the
SAPS is wholly untenable.  There is nothing improper or
unlawful
in a non-governmental entity facilitating foreign nationals
travelling to and lawfully entering into this country to aid
a lawful
investigation, particularly one into a crime as grave and heinous in
international law as torture.
[76]
Lastly and perhaps most importantly, the
SAPS took the view that South African courts would have no
jurisdiction to adjudicate
upon crimes committed in Zimbabwe by and
against Zimbabwean nationals without there being any bases for
jurisdiction (
rationes jurisdictionis
).
The reasoning of the SAPS in this regard cannot be faulted but it is
a matter pertaining to enforcement jurisdiction in
relation to
prosecutions and not investigations.
Conclusion
on the merits
[77]
The
SAPS has misconceived the legal position in its decision not to
investigate the torture allegations.  It has misconstrued
the
meaning of its legal duty in terms of the SAPS Act and the ICC Act.
It has failed to recognise that the crime of torture
has been
domesticated into our law by the ICC Act in terms of section 231(4)
of the Constitution and that it is law in the Republic
in terms of
section 232 of the Constitution due to its status as a peremptory
norm of customary international law.  The SAPS
has further
failed to recognise that we are required to interpret all national
laws in accordance with binding international law
as prescribed by
section 233 of the Constitution.
[70]
Ultimately, there is no distinction between national and
international high priority crimes domesticated into South African

law.
[78]
Given the international and heinous nature
of the crime, South Africa has a substantial connection to it.
An investigation
within the South African territory does not offend
against the principle of non-intervention and there is no evidence
that Zimbabwe
has launched any investigation or has indicated that it
is willing to do so, given the period of time since the alleged
commission
of the crimes.  Furthermore, the threshold for the
SAPS to decline to investigate, bearing in mind the particular facts
and
circumstances, has not been met in this case.  There is a
reasonable possibility that the SAPS will gather evidence that may

satisfy the elements of the crime of torture allegedly committed in
Zimbabwe.
[79]
The SAPS was presented with a detailed
dossier of allegations under oath by the victims, in many instances
corroborated by sworn
statements of independent witnesses and medical
reports.  Any inadequacies in the statements and any follow-up
or supplementation
or corrections thereof must form part of a SAPS
investigation.  SALC has offered its assistance and this has
been too readily
discounted.  In addition, the PCLU may be
approached for assistance if the investigation proves to be
challenging.  Furthermore,
Zimbabwe borders our country and the
possible presence of the suspects in the future cannot be
discounted.  The initial spadework
has been done.  The SALC
memorandum sets out the legal roadmap for an investigation.
Mr Ackermann of the PCLU recognised
and acknowledged its
value in his internal memorandum.
[80]
The Supreme Court of Appeal was therefore
correct to rule that on the facts of this case the torture
allegations must be investigated
by the SAPS.  Our country’s
international and domestic law commitments must be honoured.  We
cannot be seen to
be tolerant of impunity for alleged torturers.  We
must take up our rightful place in the community of nations with its
concomitant
obligations.  We dare not be a safe haven for those
who commit crimes against humanity.
[81]
The
SAPS’s decision not to conduct an investigation was wrong in
law.  The High Court and the Supreme Court of Appeal
were
correct in setting it aside.  The Promotion of
Administrative Justice Act
[71]
applies.
[72]
The SAPS’s
decision is reviewable on a number of grounds.  I agree with the
reasoning of the Supreme Court of
Appeal that the duty to investigate
international crimes may be limited by considerations like resource
allocation.  This
judgment formulates limiting principles and
finds that anticipated presence of a suspect in South Africa is not a
prerequisite
to trigger an investigation.  It is only one of
various factors that needs to be balanced in determining the
practicability
and reasonableness of an investigation.
Therefore, mainly for the reasons the Supreme Court of Appeal gave,
though subject
to the qualification stated, the appeal must be
dismissed.  The next aspect for consideration is the relief that
ought to
be granted to SALC and ZEF.
Remedy
[82]
There
has already been an inordinate delay in this matter, in large part
due to the tardiness on the part of the NPA and the SAPS
in
processing the request after it was received by the PCLU on 16 March
2008.  This is the third court to hear the matter
and the
litigation process has contributed to the delay.  An expedited
investigation is of paramount importance as the unearthing
of
evidence may become more difficult with time.  Constitutional
obligations must in any event be performed diligently and
without
undue delay.
[73]
The
Supreme Court of Appeal issued a
mandamus
,
trimming down substantially the High Court’s extensive order.
Both those Courts’ orders have been cited.  It
is
not necessary to make a finding on the SAPS’s submissions that
the High Court erred in issuing an order not asked for
by SALC or ZEF
(those two parties took issue with these submissions).  Given
the urgency of this matter, I propose making
a similar order to that
of the Supreme Court of Appeal.  A remittal to the High Court
would serve no purpose and would merely
add further delay.
Costs
[83]
In
respect of costs, the principles in
Biowatch
must
apply.
[74]
SALC and ZEF
litigated in the interests of justice and constitutional certainty
and have been successful in this Court.  This
case has
far-reaching consequences for the application of the ICC Act in this
country and on the manner in which the SAPS, the
DPCI, the PCLU and
the NPA will, from now on, discharge their constitutional,
international and domestic law obligations.  It
is furthermore a
matter of substantial complexity in uncharted terrain.  Accordingly,
this is one of those rare cases warranting
the employment of three
counsel.
Order
[84]
The following order is made:
1.
Leave to appeal is granted.
2.
Subject to paragraph 3 below, the appeal is
dismissed.
3.
The order of the North Gauteng High Court is set
aside and replaced with the following:
“
(a)
The decision of the National Commissioner of the South African Police
Service to decline to investigate the complaint laid by
the Southern
African Human Rights Litigation Centre is reviewed and set aside.
(b)
The South African Police Service must investigate the complaint.”
4.
The applicant must pay the costs of the Southern
African Human Rights Litigation Centre (first respondent) and the
Zimbabwe Exiles’
Forum (second respondent) in this Court, the
Supreme Court of Appeal and the North Gauteng High Court, including
the costs of three
counsel where applicable.
For
the Applicant:
J
Gauntlett SC, F Pelser and M Maenetjie instructed by the State
Attorney.
For
the First and Second Respondents:
W
Trengove SC, G Marcus SC and M du Plessis instructed by Lawyers
for Human Rights.
For
the First to Fourth Amici Curiae:
A
Katz SC, M Bishop and P Adonis instructed by the Legal Resources
Centre.
For
the Fifth Amicus Curiae:
S
Cowen and D Simonsz instructed by Webber Wentzel.
For
the Sixth Amicus Curiae:
N
Fourie, T Mafukidze and D Block instructed by Cliffe Dekker Hofmeyr
Inc.
For
the Seventh Amicus Curiae:
J
Brickhill instructed by the Centre for Applied Legal Studies.
[1]
Mandela
“South Africa’s Future Policy: New Pillars for a New
World” (1993) 72
Foreign
Affairs
.
[2]
A
state’s duty to prevent impunity, which can be defined as the
exemption from punishment, is particularly pronounced with
respect
to those norms, such as the prohibition on torture, that are widely
considered peremptory and therefore non-derogable
– even in
times of war or national emergency – and which, if unpunished,
engender feelings of lawlessness, disempower
ordinary citizens and
offend against the human conscience.  See Roht-Arriaza
Impunity
and Human Rights in International Law and Practice
(OUP,
New York 1995) at 4-6 and Garner
Black’s
Law Dictionary
9
ed (Thomson Reuters, New York 2009).
[3]
National
Commissioner, South African Police Service and Another v Southern
African Human Rights Litigation Centre and Another
[2013]
ZASCA 168
;
2014 (2) SA 42
(SCA) (Supreme Court of Appeal judgment).
[4]
Established
in terms of section 7 of the National Prosecuting Authority Act 32
of 1998 (NPA Act).  See also the Presidential
Proclamation
Regarding Determination of Powers, Duties and Functions of a Special
Director of Public Prosecutions, GN 46
GG
24876,
23 March 2003.
[5]
The
SALC memorandum was compiled by the three counsel who appeared for
SALC in this Court.
[6]
27
of 2002.
[7]
Emphasis
added.
[8]
The
SALC memorandum relies on
Prosecutor
v Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landžo
(Appeals
Chamber)
IT-96-21-A
(ICTY) at para 198, which discusses the nature of command
responsibility.  The Tribunal stated:
“
As
long as a superior has effective control over subordinates, to the
extent that he can prevent them from committing crimes or
punish
them after they committed the crimes, he would be held responsible
for the commission of the crimes if he failed to exercise
such
abilities of control.”
[9]
68
of 1995.
[10]
See
[50] for the full text of section 205(3).
[11]
Glenister
v President of the Republic of South Africa and Others
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) (
Glenister
II
).
[12]
Id
at para 97.
[13]
Section
39(1)(b).
[14]
See
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
; 2007 (6) SA 199 (CC);
2007 (10) BCLR 1027
(CC) at para
51.
[15]
Section
233 states:
“
When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law.”
See
also
Glenister II
above n 11 at para 201 where this Court
stated:
“
It
is possible to determine the content of the obligation section 7(2)
imposes on the State without taking international law into
account.
But section 39(1)(b) makes it constitutionally obligatory that we
should.  This is not to use the interpretive
injunction of that
provision . . . to manufacture or create constitutional
obligations.  It is to respect the careful way
in which the
Constitution itself creates concordance and unity between the
Republic’s external obligations under international
law, and
their domestic legal impact.”
[16]
See
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 35
and
Progress
Office Machines CC v South African Revenue Service and Others
[2007]
ZASCA 118
;
2008 (2) SA 13
(SCA) at para 6.
[17]
Some
international law scholars suggest that adjudicative and enforcement
jurisdiction can be read together.  See O’Keefe

“Universal Jurisdiction: Clarifying the Basic Concept”
(2004) 2
Journal
of International Criminal Justice
735
at 735-7 and Brownlie
Principles
of Public International Law
5
ed (Clarendon Press, Oxford 1998) at 301.
[18]
The
case of the S.S. Lotus (
France
v Turkey
)
(1927) PCIJ Series A, No 10 (
Lotus
Case
)
at 18-9.
[19]
The
principle of universal jurisdiction is discussed below.  See
Brownlie above n 17 at 303-8.  See also Agarwal
International
Law and Human Rights
14
ed (Central Law Publications, Allahabad 2007) at 207-11 and Henkin
International
Law: Politics, Values and Functions
(Martinus
Nijhoff, London 1990) at 277-309.
[20]
Rome
Statute of the International Criminal Court, 1 July 2002 (Rome
Statute).  The International Criminal Court (ICC) was

established by article 1 of the Rome Statute and is a permanent
international court vested with criminal jurisdiction.
It
should be noted that Zimbabwe is not a party to the Rome Statute.
[21]
Id
at article 12(2).
[22]
Brownlie
above n 17 at 313.  See also Agarwal above n 19 at 211.
[23]
Rome
Statute above n 20 at article 7(1)(f).
[24]
El
Zeidy
The
Principle of Complementarity in International Criminal Law: Origin,
Development and Practice
(Martinus
Nijhoff, London 2008) at 157.  See also
S
v Basson
[2005]
ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC) at para 172,
where Sachs J stated in respect of the domestic prosecution of
international crimes that—
“
[t]he
recent establishment of the [ICC] represents the culmination of a
centuries-old process of developing international humanitarian
law.
It in no way deprives national courts of responsibility for trying
cases involving breaches of such law which are properly
brought
before them in terms of national law”.
[25]
As
a court of last resort the ICC is meant to supplement, not to
replace, national jurisdictions.  See Cryer et al
An
Introduction to International Criminal Law and Procedure
2
ed (CUP, New York 2010) at 153.
[26]
Id
at 153-4.  See also Triffterer (ed)
Commentary
on the Rome Statute of the International Criminal Court: Observers’
Notes, Article by Article
2
ed (Nomos Verlagsgesellschaft, Baden-Baden 2008) at 15.
[27]
Emphasis
added.
[28]
See
Mail
& Guardian Media Ltd and Others v Chipu
NO
and Others
[2013]
ZACC 32
;
2013 (6) SA 367
(CC);
2013 (11) BCLR 1259
(CC) at para 24.
[29]
Crimes
against humanity, war crimes and genocide.
[30]
Long
title, preamble and section 3(d)-(e) of the ICC Act.
[31]
Id
at preamble.
[32]
Dugard
et al
International
Law: A South African Perspective
4
ed (Juta & Co Ltd, Cape Town 2011) at 157-8 and 160.
[33]
See
the Convention against Torture and Other Cruel, Inhuman or Degrading
Punishment, 10 December 1984 (Convention against
Torture).
[34]
See
A
and Others v Secretary of State for the Home Department (No 2)
[2005]
UKHL 71
at para 33;
R
v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex
parte Pinochet Ugarte (No 3)
[1999] UKHL 17
;
[2000]
1 AC 147
at 197-9; and
Prosecutor
v Anto Furundzija (Trial Judgment)
IT-95-17
(ICTY) at paras 147-57
.
See
also article 53 of the Vienna Convention on the Law of
Treaties, 23 May 1969, which states:
“
A
treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law.  For
the
purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognised by the

international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by
a
subsequent norm of general international law having the same
character.”
[35]
Filártiga
v Peña-Irala
[1980] USCA2 576
;
630
F 2d 876
(2d Cir 1980) (
Filártiga
)
at 890.  In this landmark case concerning a civil claim arising
out of acts of torture perpetrated by a Paraguayan official
against
a Paraguayan citizen in Paraguay, a US court claimed civil
jurisdiction over the extraterritorial crime, being one against

humanity, pursuant to the Alien Tort Statute 28 USC at section
1350.  Although the US Supreme Court, in
Kiobel
v Royal Dutch Petroleum
Co
133
S Ct 1659
(2013) at 1664 and 1669, recently held that the
presumption against extraterritorial application applies to claims
under the
Alien Tort Statute, the Court’s ruling in no way
undermined the
Filártiga
Court’s
conclusion that the torturer is considered an enemy of all
humankind.
[36]
Filártiga
id
at 880.
[37]
Dugard
et al above n 32 at 157-69.
[38]
Id
at 157.
[39]
The
crime of torture, pursuant to section 231(4) of the Constitution,
finds further reference in South African law through the
Prevention
and Combating of Torture of Persons Act 13 of 2013 (Torture Act).
[40]
See
the Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December 1948 at articles 1-2, 4 and 6 and
the Case
Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (
Bosnia-Herzegovina
v Serbia and Montenegro
),
26 February 2007 (ICJ).
[41]
Geneva
Convention I at article 49; Geneva Convention II at article 50;
Geneva Convention III at article 129; and Geneva Convention
IV at
article 146.
[42]
Convention
against Torture above n 33 at articles 4-5 and 7.
[43]
Id
at article 4(1).  See also Nowak and McArthur
The
United Nations Conventions against Torture: A Commentary
(OUP,
New York 2008) at 249.
[44]
See
above n 39.
[45]
On
a regional level, both South Africa and Zimbabwe have signed and
ratified the African Charter on Human and Peoples’ Rights,
27
June 1981 (African Charter) and are therefore bound by it.  The
African Charter, in article 5, protects the rights to
dignity and to
be free from all forms of exploitation and degradation, including
torture and cruel, inhuman or degrading punishment
and treatment.
The African Commission on Human and Peoples’ Rights
(African Commission), the institution charged
with ensuring
compliance with the African Charter, has declared that the
prohibition in article 5, which includes torture,
must be
interpreted to include the widest possible array of physical and
mental abuse.  See
Huri-Laws
v Nigeria
(2000)
AHRLR 273 (ACHPR 2000).  This suggests that there is an
obligation under article 5 for South Africa to investigate
torture
allegations.
On
a sub-regional level, both South Africa and Zimbabwe are members of
the Southern African Development Community (SADC), established
in
terms of the SADC Treaty, 17 August 1992.  In
Government of
the Republic of Zimbabwe v Fick and Others
[2013] ZACC 22
;
2013
(5) SA 325
(CC);
2013 (10) BCLR 1103
(CC) at paras 5-6 and 11,
this Court noted that the SADC Treaty has been ratified by our
Parliament and is therefore binding
upon South Africa.
Zimbabwe ratified the SADC Treaty on 17 November 1992.  As
parties to the SADC Treaty, South Africa
and Zimbabwe are bound by a
number of mutual legal commitments, primarily through various SADC
Protocols.  These include,
for present purposes, the protection
of human rights, specifically in the context of the conduct of
elections, co-operation in
respect of the combating of various
crimes that affect the sub-region and, most importantly, a specific
commitment to offer “the
widest possible mutual legal
assistance within the limits of the laws of their respective
jurisdictions” in investigations,
prosecutions and court
proceedings.  See the SADC Protocol on Mutual Legal Assistance
in Criminal Matters, 3 March 2002
at article 2(1) and (3).
There
are also non-binding international resolutions that require member
countries to act against crimes against humanity, including

torture.  See United Nations (UN) General Assembly Resolution
2583, 15 December 1969, which “[calls upon] all states

concerned to take the necessary measures for the thorough
investigation of crimes against humanity” and article 2 of the

Principles on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
recommended by UN General Assembly Resolution 55/89, 4
December 2000, which dictates that—
“
States
shall ensure that complaints and reports of torture or ill-treatment
are promptly and effectively investigated.  Even
in the absence
of an express complaint, an investigation shall be undertaken if
there are other indications that torture or ill-treatment
might have
occurred”.
Regional
legal resolutions and guidelines contain similar obligations for
African countries.  So, for example, it has been
resolved that
states should “[e]nsure that whenever persons who claim to
have been or who appear to have been tortured
or ill-treated are
brought before competent authorities an investigation shall be
initiated”.  See African Commission,
Resolution on
Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or
Punishment in
Africa,
17-23 October 2002 at article 18.
And that member states are exhorted to fight against perpetrators of
these types of international
crimes benefiting from impunity whereby
the African Commission “[u]rges the member states of the
African Union to ensure
that the perpetrators of crimes under
international human rights law and international humanitarian law
should not benefit from
impunity”.  See African
Commission, Resolution on Ending Impunity in Africa and the
Domestication and Implementation
of the Rome Statute of the
International Criminal Court, 5 December 2005 at article 1.
[46]
Section
35(3)(e) reads:
“
Every
accused person has a right to a fair trial, which includes the right
to be present when being tried.”
[47]
Du
Plessis “South Africa’s International Criminal Court
Act: Countering Genocide, War Crimes and Crimes against Humanity”

(2008) 172
Institute
for Security Studies
at
4 accepting that the ICC Act only gives rise to conditional or
qualified universal jurisdiction, quoting Cassese “Is
the Bell
Tolling for Universality? A Plea for a Sensible Notion of Universal
Jurisdiction” (2003) 1
Journal
of International Criminal Justice
589
at 592.
[48]
There
is a substantial body of thought that regards the exercise of
universal jurisdiction in absentia as repugnant to human rights

norms and values.  See, for example, Kreβ “Universal
Jurisdiction over International Crimes and the
Institut
de Droit international
”
(2006)
4
Journal
of
International
Criminal Justice
561
at 578.
[49]
Emphasis
added.
[50]
Kreβ
above n 48 at 576, where he states:
“
For
all practical purposes, the opening part of this statement is of the
greatest importance.  It contains the drafter’s
view that
the power of states to exercise universal jurisdiction includes
investigative acts in absentia
.
The criminal investigation may lead to an extradition request
vis-à-vis the state where the suspect is present.
If
this is the correct view of
lex
lata
,
then those national laws on universal jurisdiction, such as the
German Code of Crimes Under International Law, which provide
a basis
for a criminal investigation in absentia, while requiring the
presence of the accused for any trial, are in harmony with

international law.
”
(Emphasis
added.)
See
also the joint separate opinion in the Case Concerning the Arrest
Warrant of 11 April 2000 (
Democratic Republic of the Congo v
Belgium
), 14 February 2002 (ICJ) at paras 56 and 59 (
Arrest
Warrant Case
), where Justices Higgins, Kooijmans and Buergenthal
considered the principles enunciated in the
Lotus Case
for
the investigation of international crimes and stated:
“
Some
jurisdictions provide for trial
in
absentia
;
others do not.  If it is said that a person must be within the
jurisdiction at the time of the trial itself, that may be
a prudent
guarantee for the right of fair trial but has little to do with
bases of jurisdiction recognized under international
law. . . .
No exercise of criminal jurisdiction may occur which fails to
respect the inviolability or infringes the immunities
of the person
concerned.  We return below to certain aspects of this facet,
but will say at this juncture that
commencing
an investigation on the basis of which an arrest warrant may later
be issued does not of itself violate those principles
.”
(Emphasis added.)
See
also Kreβ above n 48 at 577, who refers to the joint separate
opinion in the
Arrest Warrant Case
for the view that there is
no international law rule that prohibits an investigation of an
international crime in the suspect’s
absence.  He states:
“
At
the same time, there is, certainly, also insufficient state practice
to assert the creation of a rule that would specifically
prohibit
any
investigative act in the absence of a suspect based (only) on
universal jurisdiction.  In particular, Judges Higgins,

Kooijmans and Buergenthal have convincingly argued in their
Joint
Separate Opinion
in
the
Arrest
Warrant
case
that it would be fallacious to derive such a prohibitive rule from
the
aut
dedere aut judicare
scheme
of the Geneva Conventions.  This scheme is concerned with an
obligation
to
search for an alleged offender or to
extradite
him
or her.
While
a presence requirement is imperative within such an obligatory
scheme, the same is not true as regards a permissive rule
concerning
the commencement of investigations
,
a request for extradition and even a
trial
in absentia
.”
(Emphasis added and footnotes omitted.)
[51]
Articles
53-61.
[52]
See
Supreme Court of Appeal judgment above n 3 at paras 57-65.  See
also Woolaver “Prosecuting International Crimes
in South
Africa: Interpreting the Requirement of the Accused’s Presence
in South African Territory under the Implementation
of the Rome
Statute of the ICC Act”
(2014) 131
SALJ
253
at 261-5.
[53]
Woolaver
id at 266.
[54]
See,
for example, Kreβ above n 48 at 577.
[55]
See
above n 46.
[56]
See
Mashinini
and Another v S
[2012]
ZASCA 1
;
2012 (1) SACR 604
(SCA) at para 15, where the Court stated:
“
After
the police have concluded their investigations, the docket is given
to the prosecutor.  He or she gains access to all
documents and
statements in the docket.  Based on this, he or she decides on
which charge(s) to prefer against an accused
person.  The
[police] plays no role in this critical choice by the prosecutor.”
[57]
Dugard
et al above n 32 at 154.
[58]
See
above n 11 at para 176.  See also
Carmichele
v Minister of Safety and Security and Another
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 45
and 61.
[59]
Emphasis
added.
[60]
Emphasis
added.
[61]
See
[22] to [24].
[62]
Section
179(2) reads:
“
The
prosecuting authority has the
power
to
institute criminal proceedings on behalf of the state, and to carry
out any necessary functions incidental to instituting criminal

proceedings.”  (Emphasis added.)
[63]
Section
17D(3) of the SAPS Act reads:
“
The
National Head of the [Hawks] may, if he or she has reason to suspect
that a national priority offence has been or is being
committed,
request the [NDPP] to designate a Director of Public Prosecutions to
exercise the powers of section 28 of the [NPA
Act].”
[64]
See
Redpath “Failing To Prosecute? Assessing the State of the
National Prosecuting Authority in South Africa” (2012)
186
Institute
for Security Studies
at
52 for an overview of the specialised units of the NPA.
[65]
The
current structure of the SAPS Act provides that this matter falls
squarely within the mandate of the Hawks.  It should
have been
reported to the Directorate of Special Operations (DSO) for
investigation when it was first brought to the attention
of the
South African authorities.  And that is why the NPA was SALC’s
first port of call because the DSO was located
within the NPA.
Unfortunately, the time between, on the one hand, when the SALC
memorandum and the torture docket were
delivered to the NPA and, on
the other hand, when the decision not to investigate was made
coincided with the demise of the DSO.
At the time, the Hawks
had not yet come into operation.  When it did, on 6 July 2009,
the decision not to investigate had
already been taken despite the
fact that the application to challenge that decision was launched
five months after the coming
into operation of the Hawks.  This
would probably explain why the Hawks did not play the prominent role
it should have in
the investigation.
[66]
Emphasis
added.
[67]
Brigadier
Marion is a member of the SAPS and is based at the Office of the
Provincial Detective Service in KwaZulu-Natal.
[68]
Emphasis
added.
[69]
See
[36].
[70]
See
[23].
[71]
3
of 2000.
[72]
See
section 6(2).
[73]
Section
237 of the Constitution.
[74]
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC); 2009 (10) BCLR 1014 (CC) at
paras 21-5.