Back to Index
the long arm of SA law reaches Zim
November 30, 2013
View this article
on the NewZimbabwe website
It was a remark that
no one who heard it in court is likely to forget: victims of serious
torture in Zimbabwe found it “offensive” when the perpetrators
came to South Africa on shopping trips and enjoyed immunity from
any legal action.
Wim Trengove SC, who
made this observation, was talking about his clients supporters
of the Zimbabwean opposition who were rounded up in Harare during
2007 and allegedly subjected to severe and systematic torture. Ever
since then these opponents of the ruling party in Zimbabwe have
been working with human rights lawyers trying to access provisions
of international and South African law to ensure that this impunity
for torturers from across our borders comes to an end.
This week, in what must
be one of the most extraordinary judgments in international human
rights for many years, the Supreme Court of Appeal said the South
African police must hold a proper investigation into the validity
of these allegations of serious, systemic torture.
Central to their investigation
is a lengthy dossier compiled by human rights workers and given
to the South African police and prosecution services some years
ago with a request that they investigate.
When they refused
to do so, the South Africa Litigation Centre and the Zimbabwe
Exiles Forum went to court asking that this decision be reviewed.
Judge Hans Fabricius of the Pretoria High Court found against the
police and prosecution, who took the matter on appeal. Judgment
in that appeal was delivered this week with a decision, written
by the acting Deputy Judge President of the Appeal Court, Judge
Mahomed Navsa, saying the police must investigate,
and had the power and duty to do so.
For many people, the
idea of one country investigating alleged crimes taking place in
another will be strange. Judge Navsa acknowledged this when he said
that people unfamiliar with international criminal law would ask
an “instinctive question”: what business is it of the
South African authorities when torture on a widespread scale is
alleged to have been committed by Zimbabweans against Zimbabweans
In fact, shortly after
the story broke on social media, some people responded with an implied
criticism of the judgment, saying pointedly that South Africa had
not investigated allegations elsewhere in the world. Exactly right:
this is the first time the question of South Africa’s obligations
to carry out such an investigation has been brought to court.
These decisions, first
by Judge Fabricius and now by the appeal court this week, represent
the first steps towards shaping South Africa’s jurisprudence
on the subject. We’re watching a new aspect of South Africa’s
law being crafted so that it can be put into practice and it’s
going to be fascinating to watch this part of our law develop in
Obviously there are important
differences between a police investigation into these particular
allegations of torture and similar allegations anywhere else in
the world: witnesses who could help to provide important information
about what happened are just across the border, so an investigation
need not involve South African police going into Zimbabwe.
Just as important, the
alleged perpetrators might well come to South Africa, in some cases
they have done so, for shopping trips or other purposes meaning
there is at least the potential for them to be charged if the investigation
discloses a case for them to face. Over the last decades the international
community has concluded that there needs to be a way of preventing
crimes against humanity including the crime of torture.
Countries that agree,
South Africa among them, have signed up to these principles and
to the laws underpinning them. One way they have done so is to pass
domestic legislation saying that they will act against, investigate
and prosecute such crimes wherever they are committed.
Here South Africa had
a chance to put these ideals into practice, but the judgment makes
the striking ineptitude of the police and the prosecution services
clear. As one lawyer involved in the case put it, “they got
it wrong at every turn”.
When the case was argued
at the appeal court, counsel for the police, in particular, was
given a thorough going over, in the politest way, for his at times
bizarre justifications of the police decision to do nothing. His
clients may well now feel there’s little point in trying to
take the matter to the Constitutional Court: why add to the embarrassment
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.