CCT02/14

[2014] ZACC 30

2015 (1) SA 315 (CC)

2015 (1) SACR 255 (CC)

2014 (12) BCLR 1428 (CC)

Majiedt AJ

19 May 2014

30 October 2014

http://hdl.handle.net/20.500.12144/3754

Application for leave to appeal against a judgment of the SCA: National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012) [2013] ZASCA 168; 2014 (2) SA 42 (SCA); [2014] 1 All SA 435 (SCA) (27 November 2013). The case was previously heard in the Pretoria High Court: Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (77150/09) [2012] ZAGPPHC 61; 2012 (10) BCLR 1089 (GNP); [2012] 3 All SA 198 (GNP) (8 May 2012).

Section 205(3) of the Constitution — South African Police Service — duty to investigate crime Section 231(4) of the Constitution — domestication of international agreements Section 232 of the Constitution — application of customary international law Section 4(3)(c) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 — presence of an accused for the purposes of an investigation Universal jurisdiction — application — limiting principles. Application for leave to appeal concerning the extent to which section 205(3) of the Constitution (police service duty to investigate crime) and the International Criminal Court Act 27 of 2002 (ICC Act), which incorporates the Rome Statute into South African law, impose a duty on the South African Police Service (SAPS) to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals. The Court found that because of the international nature of the crime of torture, South Africa, in terms of sections 231(4), 232 and 233 of the Constitution (prescribing respectively the domestic authority of international agreements; customary international law; and public international law) and various international, regional and sub-regional instruments, is required to exercise universal jurisdiction in relation to these crimes as they offend against its international and domestic law obligations. In curtailing this obligation, the Court held that the duty to investigate international crimes is limited to instances where the country in which the crimes occurred is unwilling or unable to investigate and if, on the facts and circumstances of the particular case, an investigation would be reasonable and practicable. The Court also held that requiring presence of the suspect within the jurisdiction as a precondition for an investigation would render nugatory the object of combating crimes against humanity. The Court therefore found that under the ICC Act, the SAPS Act 68 of 1995 and the Constitution, the SAPS must investigate the allegations of torture. The appeal was dismissed, and the Court ordered the SAPS to investigate the complaint. Judgment: Majiedt AJ (unanimous)