International Crimes in SA Courts: Update

by Christopher Gevers

The much-anticipated 'Zimbabwe Torture Docket' hearing is well under way in Pretoria, and so far it has not disappointed. The court documents are available on the Southern African Litigation Centre website, and there is a blow-by-blow account on SALC's twitter feed (@Follow_SALC). The case been covered extensively by local newspapers (see here, here and here, as well foreign media), in large part because of the dramatic breaking of ranks by one of the senior Prosecutors who claimed in court papers to have been sidelined because of his positive views on the possibility of pursuing the case.

The SALC blog summarizes the developments so far as follows:

Day one:

The hearing of SALC’s Zimbabwe Torture case got underway today in the
Pretoria High Court. The first respondent — the office of the National
Director of Public Prosecutions — sought to substitute their counsel.
This arose in response to SALC and the Zimbabwe Exiles Forum (ZEF) last
week putting up an affidavit from the second respondent in this matter —
the head of the Priority Crimes Litigation Unit (PCLU), Anton
Ackermann. The head of the PCLU is mandated to manage and direct the
investigation and prosecution of international crimes and it was to the
PCLU that we made submission of our dossier in 2008.
Ackermann’s affidavit, admitted in court today, makes plain that he was,
and still is of the view, that the dossier we submitted was sufficient
to warrant the initiation of an investigation and he recommended that a
docket be opened; that the police liase with us as to their
investigation; that the PCLU be consulted for guidance in the
investigation and that the NPA make the ultimate determination as to how
to proceed with the docket.

This evidence is particularly important to our case as it suggests
that the views of a critical decision-maker (if not the critical
decision-maker) were ignored. But the affidavit also makes plain the
infighting within the NPA, and the extent to which Ackermann was misled,
sidelined and threatened in a bid to keep his views from the court. One
of those persons alleged to have deliberately attempted to keep
Ackermann’s views from the court, is Christopher Macadam who was
initially instructed to appear for the first respondent. On the grounds
that it would not be appropriate for counsel who is himself alleged to
have engaged in subversion of justice to mount a defence to these
charges, the respondents sought to substitute counsel and requested a
postponement so that new counsel might undertake preparation. It appears
the court is eager to hear this matter — so much preparation already
having gone into the hearing — and has ordered that the hearing continue
tomorrow and that the original counsel proceed to argue the matter with
the exception of those issues in which he is alleged to have personal

Day two:

Wim Trengove SC, appearing for SALC and Zimbabwe Exiles Forum (ZEF),
argued the merits of the applicants’ submissions today and what follows
is a summary of th0se arguments. He began by noting that it was common
cause between the parties that crimes against humanity had been
committed in Zimbabwe and that that there had been a collapse of the
rule of law there.  Framing the case too is that the prohibition against
torture is one of South Africa’s fundamental constitutional values, as
recognised by the Supreme Court of Appeal, and that it is a crime that
all states are required to prosecute.

He then proceeded to distill SALC’s case into three issues of law,
and five grounds for review. On the law, the issues were: the
applicant’s standing; the applicability of the principle of legality to
the case; and the applicability of the Promotion of Administration of
Justice Act (PAJA) to the case. The five grounds for review: when the
respondents say they had no power to investigate international crimes
committed in Zimbabwe they make a mistake of law; when they say they
have no duty to investigate they make a mistake of law; when they say
that SALC’s dossier contains insufficient evidence to trigger an
obligation to investigate they make a mistake of law; when they say they
couldn’t gather evidence themselves in Zimbabwe this was not an excuse
to not do such investigation as they could and this too was a mistake of
law; and when the respondents say that an investigation would
negatively impact on the relationship between Zimbabwe and South Africa
they demonstrate that they took into account wholly irrelevant
considerations in making their decision.

On the issue of standing the law is clear.
A slew of case — from Ferreira to Biowatch — support the proposition
that NGOs dedicated to constitutional values which are litigating in the
public interest for those constitutional values to be upheld should not
be denied standing. In addition the respondents concede in their papers
that SALC has an interest in having a proper decision made and having
conceded that interest can’t now contest our standing.

One of the best quips of the day was made by Judge Fabricius at this
point, who noted that torture victims have no voice in Zimbabwe; on the
respondents’ version, they would have no voice in South Africa either
and the applicants too would be denied a voice.

Judge Fabricius appeared to accept that the principle of legality
applied to the case, indicating to Wim Trengove that there was no need
to address him on this point.

On the applicability of PAJA to the respondents’ decision, Trengove
referred to a number of cases indicating that the question at issue is
whether the decision, even if only provisional or preliminary, has an
effect and that with applications — as with SALC’s submission of the
dossier to the PCLU/NPA — it is enough that the decision, which is
subject to review, determines rights and not that it necessarily
violates rights.

It was submitted to the court today that the respondents’ position
that they did not have the power to investigate was erroneous. They had
both the power and duty to do so in terms of the relevant applicable
legislation. South Africa’s ICC Act is very clear that international
crimes contained in the Rome Statute — genocide, crimes against
humanity, war crimes — are crimes under SA law whether committed in SA
or beyond its borders. At the time SALC submitted its dossier to the
PCLU/NPA, the Scorpions were in existence within the NPA and had such
investigative powers as would have allowed them to investigate. At the
very least, the PCLU/NPA might have requested that the police
investigate. In essence this was the recommendation made by Anton
Ackermann, head of the PCLU, and evidenced in his affidavit admitted to
court yesterday when he disclosed that he recommended to his superiors
within the NPA that an investigation be initiated.

As to sufficiency of dossier, Ackermann’s views that dossier should
be investigated must hold sway. Furthermore, supporting affidavits which
the respondents put up appear to conflict: with some criticizing the
dossier for containing insufficient detail; others for too much. The
respondents in their heads also appeared to misunderstand the ICC’s
jurisprudence on the different thresholds applicable to different
stages of investigation/prosecution. For an investigation to be
initiated it is sufficient that there is ‘reasonable suspicion’ and in
their papers respondents appear to have conceded that SALC’s dossier met
this standard.

The respondents could also not rely on the likelihood that they
themselves would be unable to gather evidence in Zimbabwe as a reason
not to investigate. They could have undertaken other investigation, such
as re-interviewing victims of the torture.

Respondents also sought to rely on the potential prejudice the
investigation might cause for SA/Zimbabwean relations as a reason not to
proceed with investigation. Particular potential prejudice identified
by the respondents included that SA might one day lose its chance to
chair the SADC police chiefs forum on the basis of this investigation.
Applicants’ counsel underlined that the argument was not that foreign
policy considerations should never be a consideration. But in this case,
those who would be ‘miffed; are the torturers or those complicit in the
torture. Trengove referred to authoritative Canadian jurisprudence to
the effect that comity, while important, must end where international
crime begins.


Day three:

Day three got underway with Macadam for the National Director of
Public Prosecutions (NDPP) resuming his argument. He seemed intent on
indicating to the judge that any investigation of our dossier going
forward would fall within the mandate of the Hawks, located within the
South African police (SAPS). This approach, at least on our reading,
seemed positive — as if he were anticipating an order from the judge for
a reconsideration of the decision, and how this would happen.

Less salutary was the overview provided of international law (but
then this is a specialised field) — with Macadam suggesting that the UN
Security Council had referred Somalia to the ICC (it was, of course,
Sudan) and that it was the conflict in Kosovo that had triggered the
establishment of the Yugoslav Tribunal and indictments of Karadzic and
Mladic (when of course the ICTY was long in existence when the conflict
in Kosovo happened).  If I were going to make a snarky comment it would
be that this misrepresentation of the different international tribunals
is no surprise given that the NDPP and his counsel appear to have
fundamentally misunderstood the nature of the international obligations
that weighed on them in this case.

The judge was certainly more interventionist than he had been during
the course of Trengove’s arguments, asking Macadam the following, among
other, questions: “Why cast aspersions on the bona fides of SALC?”; “How
can you say that the applicants’s dossier ‘merely’ contained affidavits
of persons who testified to being tortured?” And, in response to
submissions from Macadam to the effect that it was hard to judge the
credibility of organisations making claims as to the crisis in Zimbabwe,
“Are the statements made through the years by organisations like the
South African General Council of the Bar expressing disquiet and disgust
at the breakdown in the rule of law in Zimbabwe, the sentiments of
disreputable organisations?”

Macadam did not press the costs argument, made in his papers,
conceding that the applicants raised valid constitutional points. That
was not the case for his colleague, Ferreira SC who insisted that there
is a single issue cutting through the entire case and that renders it an
exercise in futility: that is that SA courts, on his argument, have no
jurisdiction to hear the crimes as documented in the dossier. He
insisted that no investigation can be undertaken unless the suspects are
present in SA territory for the duration, contesting the applicants’
submission that anticipated presence is sufficient, with courts
satisfying their jurisdiction to prosecute once the suspects have
entered SA.

In response to a question from the judge, Ferreira was adamant: while
the victims of torture in Zimbabwe have rights, these are not
enforceable — anywhere. ‘”They can try Zimbabwe or the ICC. But our
courts, our police cannot assist.” Ferreira also pressed the political
sensitivities that would have been triggered had SA proceeded to
investigate, earning the admonishment from the judge that “this is not
your strongest point.” He also insisted on costs against the applicants.
The judge, in response, asked whether he is a philosopher, to which
Ferreira said; “I can’t predict the future.” Not deterred, the judge
quoted Immanuel Kant, and asked whether this application is not a value
unto itself and that a costs order should be waived. Ferreira it seems
is not a fan of Kant and is not desuaded from pursuing costs.

Just before lunch, Gilbert Marcus SC started his reply for the
applicants. He argued that at no point prior to the launching of the
application, did the National Prosecuting Authority suggest that SALC
had handed its dossier to the wrong authority. In fact, the NPA engaged
with SALC and gave the impression that the dossier was being dealt with.
It is not entitled to come to court now and say essentially: “oops, you
handed it to the PCLU when you should have handed it to the Scorpions
(that is when respondents aren’t arguing that the Scorpions couldn’t
investigate in 2008  because there was already a draft bill providing
for their disbandment).” If this were, actually, the position,
respondents infringed s 195 of the Constitution which sets out the basic
principles governing public administration in not assisting applicants
access the correct authorities.

Marcus also pointed the court’s attention to the fatal concession
made by the NPA and contained in the affidavit of Mpshe where he admits
that in making the decision to agree with the police’s reasons not to
initiate an investigation he did not consider the ICC treaty or SA’s own
Act. Addressing the issue of political considerations, he submitted
that these can never be a factor for three reasons: that the NDPP and
SAPS are established as independent institutions and if this means
anything it means absence of interference; at least at the stage of a
request for investigation such factors are clearly irrelevant; and SA’s
ICC Act gives the strongest indication that such considerations are

Marcus’ conclusions as to the NDPP’s submissions were that the NDPP
had thwarted every attempt at investigation and by their own admission
taken into account political considerations and did not consider SA’s
ICC Act.

As for Ferreira’s arguments, Marcus sought to demonstrate the
absurdity of the point on jurisdiction with the illustration that on the
respondent’s version, if suspect x accused of war crimes, entered SA’s
territory, SA police would have jurisdiction; as soon as suspect x left
the territory the police would lose their jurisdiction; if suspect x
entered again the police might resume their investigations. He also
submitted that the respondents arguments as to standing were not
supported by a single legal authority.

Applicants still await the response to the affidavit of the PCLU’s Anton Ackermann.

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