JOHANNESBURG – Judgment was reserved by the Supreme Court of Appeal on Friday in the appeal hearing on South Africa’s obligation under international law to probe alleged atrocities by officials in Zimbabwe.
A full Bench heard there was no suggestion from any party that the South African police should go and investigate alleged crimes against humanity on Zimbabwean soil.
“Do an investigation here,” said Wim Trengove SC, for the Southern African Litigation Centre (SALC).
The court was hearing arguments in an appeal against a decision that South Africa was obliged under international law to probe alleged atrocities by officials in Zimbabwe.
The lower court held that the National Prosecuting Authority could prosecute the Zimbabweans concerned if they ever set foot in South Africa.
The Zimbabwean officials are accused of masterminding “crimes against humanity” by instituting a State-sanctioned reign of terror in their own country.
Trengove said that even if it was later found the victims might have lied, the police could not refuse an investigation, “but they [the police] must investigate first”.
Trengove said there would be no need to go on if the investigation proved to be futile.
“Until they exclude the prospects that these people would not come to South Africa, they cannot stop investigating the matter.”
He argued that the contention that a crime became a crime only when the perpetrator entered South Africa, was wrong.
Earlier, Andre Ferreira, for the police, said the police could investigate a person involved in an alleged crime only when that person set foot in the country.
He argued that to spend resources on an investigation where there were no prospects of a prosecution, such as if a foreigner might enter the country, would be wrong “because it would lead to nothing”.
He contended that only strict presence in South Africa was the trigger for an investigation and not an “anticipated presence” as argued by the opposing side.
The original court action was brought by the Southern African Litigation Centre and the Zimbabwean Exiles Forum.
They asked the high court to review and set aside a decision by the National Director of Public Prosecutions and the police not to investigate Zimbabwean officials linked to the alleged torture in Zimbabwe.
The high court found in their favour and the police appealed to the SC.A.
A handful of people protested outside the court.