The Southern Africa Litigation Centre’s (SALC) reported last week that the North Gauteng High Court dismissed an application for leave to appeal against last month’s ruling that the National Prosecuting Authority (NPA) and South African Police Services (SAPS) must investigate crimes against humanity committed in Zimbabwe.
This application, brought by the NPA and SAPS, was in response to the High Court’s landmark ruling in favour of the SALC and Zimbabwe Exile Forum’s (ZEF). The NPA and SAPS were found to have ignored their international and domestic Rome Statute obligations to investigate torture as a crime against humanity regardless of where the crime is committed or by whom. The High Court ordered the SAPS and NPA to investigate allegations of torture committed in Zimbabwe which were brought to the attention of NPA and SAPS in 2008.
The NPA and SAPS argued that the High Court’s finding that South Africa’s domestic Rome Statute Act requires South Africa to investigate core international crimes when committed outside of South Africa was incorrect. The NPA and SAPS maintain that South Africa only has jurisdiction to prosecute these crimes if they are committed in South Africa. It was also argued that the court had erred in accepting that SALC and ZEF had legal standing to bring this case.
Judge Hans Fabricius dismissed both arguments finding that NPA and SAPS failed to demonstrate that this case was not brought in the public interest and in the interest of the Zimbabwean torture victims. Judge Fabricius also found that the NPA’s and SAPS’ interpretation would render South Africa’s domestic Rome Statute Act meaningless and that they ignored the fact that investigations are a necessary component of prosecutions.
In dismissing the application Judge Fabricius concluded that an appeal has no reasonable prospects of success and noted that even if leave to appeal had been granted he would not have suspended the initiation of an investigation pending the outcome of an appeal.
In response to the case President Mugabe said ‘the ruling constituted interference and a direct assault on the country’s sovereignty by residual Rhodesian and Apartheid forces in South Africa.’ The President urged the African National Congress (ANC) to deal decisively with the matter. ‘That judgment, like those outrageous ones of the SADC Tribunal which has now been dissolved, constitutes a direct assault on our sovereignty by shameless forces afflicted by racist nostalgia. I wish to urge our colleagues in the ANC of South Africa to see this for what it is and apply every means at their disposal to ensure that such machinations are not in the end, allowed to negatively affect our cordial relations.’
In response the ANC Secretary General Gwede Mantashe said that ‘the ANC does not ignore the rule of law, so we respect the ruling made in the High Court.’ If the words of the ANC are to be taken literally if any of the people on the list (whom no one has seen) travels to South Africa they will be arrested. The fact that no one knows who is on that list makes it all the more interesting.
I applaud the ANC and would like to see their words transcend to action. It is outrageous that President Mugabe thinks it is the ‘colonial masters’ that orchestrated the case, but has he ever thought it is his very actions that have brought these desperate Zimbabweans to seek justice in South Africa? Who was torturing and beating people? In fact who continues to do so? I don’t see any Boers or British doing it! But I guess introspection is not easy. So let’s see if you are brave enough to travel to South Africa now!