CAPE TOWN — 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 Zimbabwe?
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 the future.
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.