Please note that the media summary is for the benefit of the media and does not form part of the judgment.

National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012) [2013] ZASCA 168 (27 November 2013).

The Supreme Court of Appeal (SCA) today dismissed an appeal by the National Commissioner of the South African Police Service and the National Director of Public Prosecutions. against a judgment of the North Gauteng High Court which it set aside a 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 first respondent, that certain named Zimbabwean officials had committed crimes against humanity against Zimbabwean nationals in Zimbabwe (the alleged offences). It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences.

The SCA considered the issue before it, which was the competence of South African authorities to investigate crimes against humanity committed extraterritorially. This appears to be the first case in which that issue arose directly.

The SCA examined the principals of public international law and considered restrictions on domestic jurisdictions. It had regard to crimes that struck the whole of human kind and impinged on the international conscience which led to greater efforts internationally to ensure that perpetrators of human rights abuses do not go unpunished. It is described as the struggle against impunity. In para 39 of the judgment the SCA said the following:

‘[39] This increased consciousness of human rights and fighting impunity gave rise to an emerging and sometimes contested additional basis for prescriptive jurisdiction, namely the idea of universality which suggests that states are empowered to proscribe conduct that is recognised as “[threatening] the good order not only of particular states but of the international community as a whole. They are crimes in whose suppression all states have an interest as they violate values that constitute the foundation of the world public order”. Accordingly, this basis for jurisdiction is not tied to the state’s territory or some other traditional connecting factor, but is rather grounded in the universal nature of the offence committed. At customary international law, such international crimes include piracy, war crimes, crimes against humanity, genocide and torture.’

The SCA had regard to the Rome Statute of the International Criminal Court in terms of which that court was established. That statute’s structures are grounded in the core principle of complementarity. The Statute devises a system of international criminal justice wherein the primary responsibility for the investigation and prosecution of those most responsible for serious violations of international law rests with domestic jurisdictions. In principle, a matter will only be admissible before the ICC where the State Party concerned is either unable or unwilling to investigate and prosecute, which operates so as to ensure respect for the primary jurisdiction of States and is based on considerations of efficiency and effectiveness.

The legislature in South Africa enacted the ICC Act in compliance with its obligations as a State Party to the Rome Statute to take measures at national level to ensure criminal jurisdiction over the crimes set out in the Rome Statute.

The SCA had regard to submissions on behalf of the SAPS concerning the interpretation of s 4 of the ICC Act and, in particular, the contentions concerning the ICC Act’s extraterritorial application and whether an investigation was competent, despite the absence, in South Africa of the perpetrators. The SCA rejected the submission on behalf of the SAPS that a crime against humanity is only deemed to have been committed once the perpetrators set foot in South Africa. The SCA found that crimes against humanity committed extraterritorially could, depending on connecting factors, rightly be investigated by South African authorities.

The SCA held that on the SAPS’s own version there was sufficient evidentiary material on which an investigation could be initiated, including an investigation into whether the perpetrators might at some stage be present within the country. On the facts provided by the SAPS, witnesses from Zimbabwe could be interviewed within South Africa and Zimbabwean sovereignty was not necessarily implicated.

Having regard to international authorities the SCA held that there was no universal rule or practice against the initiation of investigations in the absence of the alleged perpetrators.

The SCA stated that it was not for this court to prescribe to the National Commissioner of the SAPS how the investigation is to be conducted. It stated:

‘What is clear is that on the SAPS’ own version an investigation is warranted. No doubt, in conducting that investigation, the SAPS will consider issues such as the gathering of information in a manner that does not impinge on Zimbabwe’s sovereignty. The SAPS is free to consider whether a request should be made to Zimbabwean authorities for a prosecution to be initiated there. It should also be left to the SAPS to consider a request for extradition or investigative assistance from the Zimbabwean authorities should they deem that to be necessary. In this regard, considerations of comity and subsidiarity will intrude, as of course will anticipated presence of the perpetrators in this country and resource allocation.’

The appeal was accordingly dismissed with costs.