The South African Constitutional Court, in what is being described as a ground breaking judgement, has unanimously ruled that the South African Police Service must investigate crimes against humanity allegedly perpetrated by senior Zimbabwe government officials against the opposition Movement for Democratic Change supporters in 2007.
The case was brought to court by the Southern African Litigation Center and the Zimbabwe Exiles Forum to compel South Africa to abide by its domestic and international legal obligations to investigate and prosecute high level Zimbabwean officials accused of committing crimes against humanity.
The two organizations submitted a dossier of evidence to the South African National Prosecuting Authority and police, which detailed alleged state-sanctioned torture in Zimbabwe.
The High Court and Supreme Court had already ruled that Zimbabwean officials can be investigated but the South African authorities were appealing against the rulings. The court issued a gag order on the names of the alleged perpetrators to protect the victims.
International relations and legal experts are warning that the ruling will test Harare and Pretoria’s diplomatic relations with some questioning its practicability given some of the implicated may have diplomatic immunity.
National police spokesperson Lt-Gen Solomon Makgale said the police will comply with the Constitutional Court's order to investigate claims of torture against senior Zimbabwean officials saying "in principle, this is the end of the matter. We are required to comply with the judgment. We only got the judgment today (Thursday). Our legal team is looking at it."
Fritz said, “South Africa’s highest court has set an important precedent. South Africa will not be a safe haven for perpetrators of the world’s worst crimes."
She said the "judgment represents a clear appreciation for the role of international criminal law and its importance to our domestic justice system.”
Reacting to the court outcome, ruling South African National Congress secretary general Gwede Mantashe said the judgement will be difficult to implement saying "South Africa cannot police the world".
Commenting on the development, Zimbabwe's Prosecutor General Johannes Tomana said the ruling is a non-event as Harare is not under South Africa's jurisdiction.
But Zimbabwe Exiles Forum Executive director, Gabriel Shumba said, “After eight years of legal wrangling, we are thrilled that victims of torture in Zimbabwe now have some prospect of seeing justice served.”
He added, “But the case doesn’t just hold out promise for victims of torture in Zimbabwe. Should it be reasonable and practicable for South African authorities to investigate international crimes committed elsewhere – for instance, the Democratic Republic of Congo – potentially the victims of those crimes might approach South Africa’s investigating authorities for assistance.”