This week two civil society
organisations will attempt to pursuade the High Court in Pretoria to compel the
National Prosecuting Authority (NPA) and the South African Police Service (SAPS
) to investigate, and if necessary prosecute, individuals responsible for crimes
against humanity allegedly committed in Zimbabwe in 2008. This is the latest
installment in a campaign by South African civil society to ensure that the
South African authorities comply with their duties under South Africa’s
domestic Implementation of the Rome Statute Act - adopted by South Africa’s
legislature in 2002 but yet to be put to meaningful work. Accordingly, the
legal (and political) significance of this week's hearing is difficult to overstate.
The legal issues raised by this week’s
application are complex and of importance and interest well beyond the Pretoria
High Court. The following is from the publicly available Press Release by the
Southern Africa Litigation Centre (one of the litigants):
NORTH GAUTENG HIGH COURT TO HEAR ZIMBABWE
TORTURE CASE
Johannesburg - On Monday 26th March,
the North Gauteng High Court will begin hearing a landmark case brought by the
Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum
(ZEF) to compel South Africa to abide by its legal obligations to
investigate and prosecute high level Zimbabwean officials accused of crimes
against humanity.
SALC and ZEF are asking the High Court to review and set aside the
decision of the National Prosecuting Authority and the South African Police
Services not to investigate Zimbabwean officials linked to acts of
state-sanctioned torture following a police raid on the headquarters of the
Movement for Democratic Change in 2007.
“The High Court has an opportunity to set an important precedent, which
will ensure that South Africa lives up to its legal responsibilities to
prosecute the perpetrators of international crimes wherever they are
committed,” said Nicole Fritz, Executive Director of SALC.
This case represents the first time that a South African court will have
the opportunity to provide guidance on the scope and nature of the obligations
placed on the South African authorities by signing up to the International
Criminal Court.
This case will be argued by Advocates Wim Trengove SC, Gilbert Marcus SC
and Max du Plessis.
Where – North Gauteng High Court, Pretoria
When – The hearing will run from Monday 26th – Friday 30th March,
starting 10am daily
Who – SALC promotes human rights and the rule of law in southern
Africa through litigation, advocacy and training. ZEF seeks to combat impunity
and achieve justice for human rights violations in Zimbabwe and to support
Zimbabweans in exile.
For more
information and interviews contact:
Nicole Fritz,
SALC Executive Director, +27 11 5875065, Cell +27 82 6001028; NicoleF@salc.org.za
One of the most interesting aspects of
this case is the jurisdictional basis in issue.
Section 4(3)(c) of South Africa’s
ICC Act provides universal jurisdiction to a South African court in respect of
ICC crimes. That provision states:
“In order to secure the jurisdiction of
a South African court for purposes of this Chapter, any person who commits [an international]
crime outside the territory of the Republic, is deemed to have been committed in
the territory of the Republic if… that person, after the commission of the
crime, is present in the territory of the Republic”.
The nature and operation of this
provision is but one of the numerous interesting and important questions that
will be put to the Court during the course of this week. How they are answered
will shape the international criminal justice landscape in South Africa and
beyond.
Watch this space!