The 'landmark' Zimbabwe Torture Docket decision

by Christopher Gevers

 Yesterday the High Court in Pretoria
handed down a landmark decision in the case of South African Litigation Centre and Others v The National Director of Public Prosecutions and Others that has indelibly altered
the international criminal justice landscape in South Africa (and possibly
beyond). My colleague and co-blogger, Max du Plessis, was one of the advocates
involved in bringing the case on behalf of the applicants (the Southern Africa
Litigation Centre and Zimbabwe Exiles Forum) – while we share this blog, he has
refrained from commenting on the case and these comments are my own, flowing
from my position both as an academic international lawyer and as a legal
adviser to the applicants during the hearing on matters of international law.

In a wide-ranging, yet at times tersely-worded,
95-page judgment the Court found that the decision taken by the South African National
Prosecuting Authority and Police (the Respondents) “refusing and/or failing to
accede to the First Applicant’s request that an investigation be initiated
under the Implementation of the Rome Statute of the International Criminal Court
Act 27 of 2002 (the ICC Act), into acts of torture as crimes against humanity
committed by certain named perpetrators in Zimbabwe” was unlawful, inconsistent
with the Constitution and therefore invalid. In light of “South Africa’s
international law obligations as recognised by the Constitution”, the Court
ordered the Police’s ‘Priority Crimes Investigation Unit’ (in cooperation with
the National Prosecuting Authority) “in so far as it is practicable and lawful,
and with regard to the domestic laws of the Republic of South African and the
principles of international law, to do the necessary expeditious and
comprehensive investigation of the crimes alleged in the torture docket”.
Having done so, the Prosecuting Authority must then decide whether or not to
institute a prosecution de novo.

As expected, a significant portion of
the judgment was directed at the (for want of a better word) ‘domestic’ aspects
of the case, such as the Applicants’ standing to bring the review application
and the standard of review or review to be applied. The Court made short work
of the Respondents’ objections in this regard. Notably, in respect of standing,
while the Applicants were on fairly solid ground regarding their right to bring
the case under South African law generally, the specific nature of this case
(and its importance) was not lost on the Court, which noted:

I agree… with the Applicants’ contentions
that the decisive factor in the present context is the ICC Act. In the present
instance the quality of
standi has to be decided,
not by mere reference to prior decisions of the Constitutional Court and the
Supreme Court of Appeal, which both adopt a broad approach in constitutional
litigation, but more importantly in the context of the Rome Statute and the
domestic Act of 2002, the ICC Act. The former emphasises in its preamble that
it is the duty of every state to exercise its jurisdiction over those responsible
for intentional crimes. In the preamble to the ICC Act, Parliament committed
South Africa, as a member of the international community, to bringing persons
who commit such crimes to justice under South African law where possible. The
Act, read in the context of its purpose and Rome Statute, seems to require a
broad approach to traditional principles of standing. Section 3(d) read with s2
requires the High Courts of South Africa to adjudicate cases brought by persons
accused of a crime committed in the Republic, and even beyond its borders in
certain circumstances. The relevant international imperative must not be lost
sight of, and the Constitutional imperative that obliges South Africa to comply
with its relevant international obligations. The complimentarity principle
referred to in Article 1 of the statute must also not be lost sight of in this
context. This states that the ICC has jurisdiction complementary to national
criminal jurisdictions. Section 4(3) of the ICC Act is also relevant, as it goes
beyond “normal” jurisdictional requirements. In the context of the purpose of
that Act, s3 requires that a prosecution be enabled as far as possible.
holistically therefore, all the mentioned provisions place an obligation on South
Africa to comply with its obligations to investigate and prosecute, crimes
against humanity within the ambit of the provisions of s4(3) of the ICC Act,
and it is in the public interest that the State does so. In the context of that
Act it is not decisive that the crimes contemplated by that act were not
committed in South Africa. Section 3 of the South African statute makes this abundantly
clear in my view, and I therefore hold that Applicants have
locus standi in the litigation before me. It is my view
that the Applicants are entitled to act in their own interest in the present
context, and also in the public interest in particular. They do not have to be
the “holders” of any human rights themselves. They certainly have the right,
given their attributes, to request the state, in the present context, to comply
with its international obligations on behalf of those who cannot do so, and who
are the victims of crimes against humanity.

Immediately, the Court’s finding that
the ICC Act demands a broader notion of standing will be of consequence to
those in the process of utilizing the ICC Act to initiate prosecutions in South
African courts (or planning to do so). Beyond this, the recognition of the
obligation to investigate and prosecute international crimes under both
international and domestic law, and the finding that ‘prosecution be enabled as far as possible’, will have potentially
far-reaching consequences for the prosecution of international crimes in South
Africa generally.

When it came to what I’d previously
identified as the three high-points of the case – sufficiency of evidence,
jurisdiction and comity-related concerns – the judgment did not disappoint.

sufficiency of evidence for the purposes of investigation

The Court agreed with the Applicants’
submissions that the Respondents had relied on the incorrect evidential
threshold in deciding not to initiate an investigation. Based on the
Respondents’ contention that the Rome Statute’s thresholds should be applied mutatis mutandis to a domestic decision,
the Court accepted that “
said Respondents had confused different thresholds for different steps that had
to be taken in terms of the Statute”. According to the Court:

Article 53 of the Rome Statute only required that a reasonable basis
existed for the decision whether or not to initiate an investigation. It was
common cause in the present proceedings that the standard was met…. There were
other standards for an arrest, and the confirmation of charges. The sufficiency
of material for prosecution purposes was therefore not the proper threshold
that was required, and accordingly, Brigadier Marion, as I have already pointed
out, was asked the wrong question and gave the wrong answer. The question ought
to have been: Is there enough information to warrant an investigation in terms
of the applicable law? The answer has to be, yes, and First Respondents have
conceded that [the] Respondents had therefore laboured under an error of law in
that context.

While the Court’s conclusion is
correct, unfortunately it itself errs in its explanation (albeit without
significant consequences) by stating that there are “other standards for an arrest” under the Rome Statute:
article 58, like article 53, requires that there are “reasonable grounds to
believe that the person has committed a crime within the jurisdiction of the
Court” in order for an arrest warrant to be issued.
Nevertheless, the salient point here is that the
Court has endorsed the position that in order for a domestic investigation to
be initiated under the ICC Act in South Africa the correct question is whether
there is a ‘reasonable basis’ to proceed. This is a point the Court repeats later
more explicitly (at paragraph 31):

In my view it is clear that when an
investigation under the ICC Act is requested, and a reasonable basis exists
for doing an investigation
, political considerations or diplomatic
initiatives, are not relevant at that stage having regard to the purpose of the
ICC Act.

‘Gordian knot’ of jurisdiction

The issue of jurisdiction, or the
absence thereof, formed a large part of the Respondents’ ‘defence’ (in fact it
was the sole argument relied on by Counsel for the Police). The fulcrum of the
parties’ jurisdiction submissions was the proper meaning to the ascribed to
section 4(3)(c) of the ICC Act, which states:

In order to secure the jurisdiction of a
South African court for purposes of this Chapter, any person who commits [an
ICC] crime outside the territory of the Republic, is deemed to have committed
that crime within the territory of the Republic if –

(c)              that
person, after the commission of the crime, is present in the territory of the

The Respondents argued (i) that this
provision established a so-called conditional universal jurisdiction regime in
terms of which South Africa could not exercise jurisdiction in any form over crimes until the
accused was present in the Republic, and (ii) the absence of jurisdiction on
the part of South African courts vitiated the ‘jurisdiction’ of the police to
investigate the torture docket, the two being co-extensive.

The Applicants responded: (i) Section
4(3)(c) merely conditioned the exercise of enforcement
by the courts on the presence of the accused while South
Africa’s prescriptive jurisdiction was
provided for by section 4(1) of the ICC Act – which states: “D
espite anything
to the contrary in any other law in the Republic, any person who commits a
[international] crime, is guilty of an offence” – and was not conditional on
the presence of the accused: therefore South African courts did have ‘jurisdiction’
over the offence. (ii) Furthermore, and in any event, the competence of the
Police to investigate crime was not territorially limited.

Although the point could have been made
more clearly, the Court in substance accepted the Applicants’ submission that
section 4(3)(c) of the ICC Act relates to the exercise of enforcement

“Mr Marcus SC is in my view correct in submitting
that s4 (3) of the ICC Act dealt with the jurisdiction of the court to try
someone after an investigation. He submitted that Fourth Respondent’s argument
was absurd: it would mean that if a suspect was physically present in South
Africa then an investigation could continue. If they then left, even for a
short period, the jurisdiction would then be lost. If they then re-entered
South Africa, an investigation would continue. I agree that this does amount to an absurdity.
One does not know what would have occurred if an investigation had been
ordered, it was not simply an open and shut case. Section 4 (3) was concerned
with a trial. The ICC Act was silent on an investigation, but in my view it is
logical that an investigation would have to be held prior to a decision by the First
Respondent whether or not to prosecute. I am therefore of the view that Fourth
Respondent’s argument on the meaning of s4 (3) of the ICC Act cannot be upheld.”

By this passage the Court appears to
have put paid to the argument that the universal jurisdiction regime under South
Africa’s ICC Act is ‘conditional’. In doing so it arguably accepted in substance the distinction made in the
Applicants’ papers between prescriptive and enforcement jurisdiction. However,
the Court did not expressly invoke the prescriptive versus enforcement
jurisdiction distinction. The closest it came was earlier in the judgment,

Chapter 2 of this Act deals with
jurisdiction of South African courts in respect of crimes, and makes a crime
against humanity a crime under South African domestic law. Section 4(1) has
no requirement of presence.

However, one might infer that by
accepting that the power to investigate crimes committed under the ICC Act is
‘universal’ proper, the Court must have accepted that South African law
exercises prescriptive jurisdiction over such crimes on the same terms. Were
that not the case the power of the police would be extraordinary. Further,
section 205 of the Constitution states that police have power to ‘prevent,
combat and investigate crime’, therefore, if the court accepts their
power to investigate regardless of the
presence of the accused,
it must be taken to have accepted those offences
are crimes regardless of the presence of
the accused

While this aspect of the case might give
pause for further academic analysis, the effect of the ruling from a practical
perspective is, for the most part,
the same: the South African authorities have a duty, irrespective of the location of the accused, to investigate international
crimes where section 4(3)(c) is implicated.

Looking forward then, and aside from
these academic nuances, the decision confirms the South African police have an
extensive power to investigate international crimes the world over, without
setting out any mechanism for determining which crimes should be selected
(hence the suggestion of the ‘anticipated presence’ standard by the
Applicants). In this regard it’s worth mentioning that the effect of this
construction of section 4 of the ICC Act is not limited to South Africa -  Mauritius recently adopted implementing
legislation in respect of the Rome Statute which contains a very similar
provision on universal jurisdiction (See section 4(3)(c), The International Criminal Court Act 27 of 2011).


As far as the Respondents’ submissions regarding
the political implications of the proposed investigation and any resultant
prosecutions are concerned, the Court was unmoved by this argument.
While the Court did not go
so far as to rule that such
are irrelevant to prosecutions under the ICC Act, it agreed with the Applicants
that they are premature at the investigatory phase and, when they are
considered, are to be made by a senior official, not an investigating officer
(Noting, “
Diplomatic considerations were … not
the business of [the police], to put it bluntly”.)
In reaching this conclusion the Court relied heavily
on the
decision of the House
of Lords in R. (Corner House Research and
Another) v Director of The Serious Fraud Office (JUSTICE Intervening)
UKHL 60, noting:

“In that case the Director had
discontinued investigating allegations of corruption against a United Kingdom Company.
There had been a threat by a foreign state (Saudi-Arabia) to withdraw
co-operation on security matters if investigations were continued. If this
threat was carried out, public safety and national security would be
compromised. It had been made clear to the relevant UK officials, that the
relevant threats to national and international security had been grave indeed.
The Director had therefore taken the decision to discontinue the investigation
with extreme reluctance. The Director had been confronted, as the House of
Lords put it, by an ugly and obviously unwelcome threat. He had to decide what,
if anything he should do. He did not surrender his discretionary power of
decision to any third party, although he did consult the most expert source available
to him in the person of the Ambassador, and he did, as he was entitled if not
bound to so, consult the Attorney General who, however, properly left the
decision to him. The issue in the proceedings before the House of Lords was not
whether the decision was right or wrong, but whether the decision was a
decision the Director was lawfully entitled to make. The evidence before the
House of Lords was clear, no commercial interests caused the Director to
discontinue the investigations, but a clear threat to “British lives in British
streets” Public safety was therefore the relevant consideration. I am of the
view that reference to that decision of the House of Lords is particularly
apposite. In the present context it was the duty of the First, Second and Fourth
Respondents to investigate the docket. It contained sufficient information for
purposes of such an investigation, in the context of the Rome Statute. At that
stage, it was not their obligation to take political or policy considerations
into account. These change in any event from time to time, whilst a proper jurisprudence remains a concrete
basis for a stable society living under the twinkling but stern eyes of the
Rule of Law. Any such considerations would affectively destroy the efficacy of
the ICC Act. Respondents were required to act independently. In the present
context, and in the light of the request for an investigation of the torture
docket, they had to appreciate the nature and ambit of their duties, and act
accordingly. What the First Respondent would thereafter have decided to do with
the docket, if I can put it that way, was not a lawful basis for refusing to do
an investigation at that stage either. That is a different topic which may or may
not arise in future, and which might or might not have arisen in the past, once
the investigation had been completed. It is clear therefore that irrelevant
considerations where taken into account at that stage.”

Against this
backdrop the Court concluded:

“In my view it is clear that when an investigation
under the ICC Act is requested, and a reasonable basis exists for doing an
investigation, political considerations or diplomatic initiatives, are not
relevant at that stage having regard to the purpose of the ICC Act. Such
considerations may become relevant at a stage when the First Respondent would
have to decide whether or not to order a prosecution, but even at that stage
the purpose of the ICC Act, and South Africa’s commitment thereto, remain
relevant considerations that have to be taken into account.”

Notably, in respect
of the relevance of such decisions later on in proceedings, the Court made the
point of stating:

“It must not be forgotten that the ICC Act itself
denies explicitly diplomatic immunity to government officials accused of
committing ICC Act crimes. (See s4(2)(a)). The recent trial of Taylor, in the International Criminal
Court in The Hague, is a case in point.”

The incorrect reference
to the Charles Taylor Trial (he was tried in the Special Court for Sierra
Leone, sitting in The Hague; and not by the ICC) is a small distraction.  The important point is that this passage not
only casts a shadow over arguments that might be raised at a later date
relating to political considerations, it also shows that the Court accepts that
the ICC Act does in fact remove immunity ratione

Finally, the Court was not impressed
with the Respondents’ handling of the Torture Docket generally, noting:

“It is my view that in deciding whether it was
“possible” to bring the perpetrators of international crimes to justice, the
Respondents were required to determine whether or not the information before
them was sufficient to initiate an investigation, and as I have said, First
Respondent admitted that a reasonable suspicion that crimes against humanity
were committed in Zimbabwe during that period, existed. It is also strange to
say the least that First Respondent said that he did not take the views of
Second Respondent, which at on stage were the same as those of the Applicants,
into account. It is clear that First Respondent, on his own affidavit,
without a thought or concern for the governing international statute or
domestic legislation, abdicated his views to those held by the Fourth
Respondent. I need scarcely emphasize that the Constitution, s179 has granted
him, in the context of the NPA, independence, which he must exercise
impartially without fear or favour it is not for him to blindly follow
political views or policies, let alone to anticipate such

In contrast, the Court praised the
efforts of the Applicants in preparing the Torture Docket and defended them against
the unfortunate attacks leveled against them by the Respondents, noting:

[The] Applicants stated in their written
heads of argument that, having regard to [the] Respondents’ answering
affidavits, there was a well-founded apprehension that they had not acted in
good faith, but had instead adopted a carping, defensive, and evasive position
to avoid their duties in law. I do not for purposes of this judgment intend to
go into this topic in any great detail, but Applicants’ comments in this regard
seem to be well justified. For instance, Applicants’
bona fides were attacked, they were accused of publicity
seeking, and almost reprimanded for daring to place an undue burden, which was
an obvious waste of time, on them. These attacks herein were in my view
unfortunate and unjustified, as they did not address the real crux of the case
nl. whether the Respondents’ response to the torture docket had been performed
with due respect for the enabling law applicable to the functions, and with the
respect for the values of the Constitution and South Africa’s international law

On this basis the Court ordered the
Respondents to pay the costs of the application jointly and severally,
including the costs of three counsel, noting:

I must add that I considered the employment
of two senior counsel and one junior counsel on behalf of the Applicants as
having been a wise and reasonable precaution in the light of the facts and the
relevant legislation, and the importance of the matter to the Applicants, the victims
and the general public.

This is good news for civil society
organisations such as the Applicants – who expended vast amounts of time and
effort on preparing the torture docket in the first place, and then took the
precaution of hiring three of the country’s leading constitutional and
international law advocates to prepare and argue their case before the High
Court.  It is, in this respect, a victory
for the rule of law, a victory for international criminal justice, and a
validation of hard work, tenacity, and a commitment to human rights.

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