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Judge confirms finding on Zim abuses

Judge confirms finding on Zim abuses

June 8 2012 at 01:55pm


High Court Reporter

THE PRETORIA High Court yesterday turned down an application by the National 
Director of Public Prosecutions (NDPP) and the commissioner of police for 
leave to appeal against a judgment delivered last month where the court 
ruled that these authorities have a duty to investigate alleged crimes 
committed against humanity outside the country’s borders.

Judge Hans Fabricius on May 8 delivered a 100-page judgment in which he 
motivated at length why the SA authorities should investigate Zimbabwean 
officials implicated in acts of torture in that country. He said the 
authorities had a duty in this regard under international law and in terms 
of the International Criminal Court Act (ICC Act).

The main application was brought by the Southern African Litigation Centre 
(SALC) and the Zimbabwe Exiles Forum against the NDPP, the police and the 
head of the priority crimes unit. They asked for the court to set aside the 
decision by the SA authorities not to investigate and possibly prosecute 
Zimbabwean officials implicated in human rights abuses committed in 2007.

More than 100 people were detained and tortured when the Zimbabwean police 
raided the offices of the Movement for Democratic Change in 2007.

SALC handed a dossier with all the information to the NPA, but the 
authorities said they did not have the jurisdiction, nor the resources to 
investigate crimes committed outside this country’s borders.

The court in its judgment, which was hailed as a landmark judgment for 
victims of human rights abuses, emphasised that there was a clear obligation 
on South Africa, in terms of the ICC Act, to investigate these human rights 
abuses and prosecute those responsible.

But both the NDPP and the police yesterday argued that the judge erred in 
his findings and based their grounds for leave to appeal mainly on technical 
issues. They persisted that the authorities here did not have the 
jurisdiction under the ICC Act to investigate and prosecute crimes committed 
outside SA’s borders.

They said that once it was found that a crime was not committed in South 
Africa, the victims had no legal standing to demand an investigation and a 
subsequent prosecution. The NDPP and police said this was a point that the 
Supreme Court of Appeal should pronounce on.

Counsel for SALC, however, said the ICC Act did place an obligation on the 
authorities here to investigate these crimes, which were not mere 
allegations of theft, but serious human rights abuses.

Judge Fabricius was told that the police and the NDPP were placing technical 
aspects in the way of a proper investigation of the allegations of human 
rights abuses.

The judge, in turning down the application for leave to appeal, commented 
that the core of his judgment was not attacked, only technical issues.

He said the Constitutional and the Appeal courts had dealt with these 
issues. He did not think these courts would come to a different finding.


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