Hearing begins in Zimbabwe torture case
By Alan Wallis | 28 March 2012
The landmark Zimbabwe torture case brought by the Southern Africa Litigation
Centre (SALC) and the Zimbabwe Exiles Forum (ZEF) began in earnest in the
North Gauteng High Court on Tuesday March 27th after a one-day postponement
caused by the state's last-minute change of counsel, following the filing of
sensational new testimony from the head of South Africa's Priortiy Crimes
Wim Trengove SC, appearing for SALC and ZEF, began the hearing 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. He added 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
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 were: when the respondents say they had no power to
investigate international crimes committed in Zimbabwe; when they say they
have no duty to investigate; when they say that SALC’s dossier contains
insufficient evidence to trigger an obligation to investigate; 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 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 cases — from Ferreira
to Biowatch — support the proposition that NGOs, which are dedicated to
constitutional values and 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 cannot
now contest itsstanding.
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 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 investigative powers as would have allowed them to
pursue the case. 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 afidavit admitted to court
yesterday when he disclosed that he recommended to his superiors within the
NPA that an investigation be initiated.
As to the sufficiency of the 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 criticising 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. One 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.