National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another

In March 2007, Zimbabwean police raided the headquarters of the opposition party (MDC) in Harare, detaining over 100 people. The detainees were allegedly subjected to systematic torture including beatings, waterboarding, electric shocks, and mock executions. The Southern African Human Rights Litigation Centre (SALC) compiled a detailed dossier containing 23 sworn statements (17 from torture victims, 6 from corroborating witnesses) and submitted it to the NPA's Priority Crimes Litigation Unit (PCLU) in March 2008, requesting an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act). After prolonged inaction and correspondence, the National Commissioner of SAPS (Mr Williams) informed SALC in June 2009 that no investigation would be initiated, reasoning that the dossier was inadequate, further investigations would be impractical and legally questionable, and could have far-reaching implications for South Africa's relations with Zimbabwe. SALC and the Zimbabwe Exiles' Forum (ZEF) applied to the High Court for review of this decision.

• Whether the SAPS has a constitutional duty to investigate crimes against humanity (torture) committed in Zimbabwe by and against Zimbabwean nationals
• Whether presence of the accused in South Africa is a prerequisite for initiating an investigation under section 4(3) of the ICC Act
• The scope and application of universal jurisdiction under South African law
• Whether section 205(3) of the Constitution imposes a duty or merely confers a power on SAPS to investigate crime
• The interpretation of section 4(3)(c) of the ICC Act regarding the presence requirement
• The relationship between international law obligations and domestic law in respect of crimes against humanity
• The limiting principles applicable to the exercise of universal jurisdiction

The Court: (1) Granted leave to appeal; (2) Dismissed the appeal (thus upholding the finding that SAPS must investigate); (3) Set aside the High Court's order and replaced it with: "(a) The decision of the National Commissioner of the South African Police Service to decline to investigate the complaint laid by the Southern African Human Rights Litigation Centre is reviewed and set aside. (b) The South African Police Service must investigate the complaint." (4) Ordered the National Commissioner to pay costs of SALC and ZEF in all three courts, including costs of three counsel where applicable.

The binding legal principles established are: (1) Section 205(3) of the Constitution imposes a constitutional duty on SAPS to investigate crimes against humanity as part of its obligation to "prevent, combat and investigate crime"; (2) The ICC Act, read with the SAPS Act, designates crimes against humanity (including torture) as national priority offences that SAPS has a duty to investigate; (3) Presence of the accused in South Africa is NOT a prerequisite for initiating an investigation into crimes against humanity under the ICC Act - section 4(3) establishes jurisdictional requirements for prosecution, not investigation; (4) Universal jurisdiction may be exercised for investigations in the absence of suspects without violating international law or the Constitution, provided the investigation is confined to South African territory; (5) The exercise of universal jurisdiction to investigate crimes against humanity is subject to two limiting principles: (a) complementarity/subsidiarity - investigations are only permissible where the territorial state is unwilling or unable to investigate/prosecute; and (b) practicability - the decision to investigate must be reasonable considering all relevant circumstances including: likelihood of prosecution, anticipated presence of perpetrators, geographical proximity, prospects of gathering evidence, and available resources; (6) Torture has dual status in South African law: as customary international law under section 232 of the Constitution (being a peremptory norm) and as domesticated treaty law under the ICC Act pursuant to section 231(4); (7) National legislation must be interpreted in accordance with binding international law as required by section 233 of the Constitution; (8) Political considerations regarding inter-state relations cannot override legal obligations to investigate crimes against humanity.

The Court made several important non-binding observations: (1) The Court quoted extensively from Nelson Mandela's articulation of South Africa's future foreign policy emphasizing human rights as the core concern of international relations, linking this vision to the Constitution's preamble about taking South Africa's "rightful place as a sovereign state in the family of nations"; (2) The Court described torturers as "hostis humani generis" (enemy of all humankind), placing them alongside pirates and slave traders as international criminals subject to universal condemnation; (3) The Court noted that "we dare not be a safe haven for those who commit crimes against humanity" - emphasizing South Africa's moral position; (4) The judgment observed that the timing of the matter coincided with the transition from the Directorate of Special Operations (DSO) to the Hawks, which may have contributed to institutional confusion about responsibility; (5) The Court noted that Zimbabwe is not a party to the Rome Statute, making the principle of complementarity particularly important in such cases to prevent impunity; (6) The Court commented that requiring presence for investigation would "render nugatory the object of combating crimes against humanity" as suspects could enter and leave quickly; (7) The judgment observed that SALC's offer of assistance was "too readily discounted" and that collaboration with civil society organizations in such investigations is not improper; (8) The Court noted that a preliminary investigation to test reasonableness might be appropriate in some cases before committing to a full investigation; (9) The Court emphasized that any inadequacies in witness statements should be addressed through investigation, not used as grounds to refuse investigation entirely.

This landmark judgment: (1) Establishes that South Africa has a constitutional and international law duty to investigate crimes against humanity committed extraterritorially, even when committed by and against foreign nationals; (2) Clarifies that presence of the accused is NOT required for initiating investigations (only for prosecution); (3) Affirms South Africa's commitment to combating impunity for international crimes and taking its place in the community of nations; (4) Provides the framework for applying universal jurisdiction under the ICC Act, including limiting principles of complementarity and practicability; (5) Interprets section 205(3) of the Constitution as imposing a duty (not discretion) on SAPS to investigate crime, particularly national priority offences; (6) Demonstrates the integration of international law into South African law through sections 231, 232 and 233 of the Constitution; (7) Establishes that torture has a dual status in South African law: as customary international law (section 232) and as domesticated treaty law (ICC Act per section 231(4)); (8) Reinforces the principle that political considerations cannot override legal obligations to investigate crimes against humanity; (9) Defines the respective roles and collaborative obligations of SAPS, the Hawks (DPCI), and the PCLU in investigating international crimes.