IN THE NEWS: ConCourt rules SAPS must investigate torture in Zim
- Jendi Moore
- Oct 22, 2014
- 2 min read
In a recent judgment of 30 October 2014 granted by the Constitutional Court, it was unanimously ruled that the South African Police Service (SAPS) has a duty to investigate the crimes against humanity of torture allegedly committed in Zimbabwe by and against Zimbabwean nationals.
In 2007 the Zimbabwean police, allegedly acting on instructions of the ruling party, raided Harvest House in Harare, the headquarters for the main opposition party. More than 100 people were taken into custody, including workers in nearby shops and offices. These individuals were detained for several days and allegedly tortured. The South African Law Commission (SALC) compiled detailed evidence of the alleged torture and obtained 23 sworn written statements. The docket was then handed to the National Prosecuting Authority with a request to initiate an investigation into the alleged acts of torture. This matter was in turn referred to the Acting National Commissioner of SAPS who said that, as stated in the judgment, "SAPS was unable to initiate an investigation because the matter had been inadequately investigated and that further investigations would be impractical, legally questionable and virtually impossible."
The matter was brought before the North Gauteng High Court where it was ordered that the original decision be reconsidered. The Supreme Court of Appeal ordered that "the SAPS must initiate an investigation into the alleged acts of torture." The matter was then brought before the Constitutional Court where it considered South African law as well as international law in determining whether SAPS has a duty to investigate crimes against humanity committed beyond the borders of South Africa.
The Constitutional Court held that "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 practical." The court found no evidence to suggest that the authorities of Zimbabwe "were willing or able to pursue an investigation" and held that an obligation does lie with SAPS to initiate an investigation into these alleged crimes.
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