Landmark decision of the SA Const Court in the Southern African Litigation Centre v National Director of Public Prosecutions

On Thursday 26 March 2015, Dr. Hannah Woolaver presented on the recent landmark decision of the South African Constitutional Court in the Southern African Litigation Centre v National Director of Public Prosecutions, in which she acted as an amicus curiae. The case confirms that South African courts can, and may even have a duty to, exercise universal jurisdiction over international crimes in certain circumstances. It was also the first decision handed down by South Africa’s Constitutional Court regarding South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act), which extends jurisdiction to persons who are ‘present’ in the territory of South Africa.

The case concerned 'the extent to which the South African Police Service (SAPS) has a duty to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals’ [Para 4, 1]. Dr. Woolaver discussed several important legal issues addressed in the case, including the meaning of ‘presence’ and the relevance of political considerations in the application of the ICC Act. The Constitutional Council found that the torture allegations must be investigated by SAPS, even though the perpetrators were only located in South Africa intermittently and despite an argument that investigating these crimes could harm the South African government’s political relations with Zimbabwe. 

Dr. Woolaver drew particular attention to the crucial role played by civil society in furthering international criminal justice in South Africa. In this case, Southern African Litigation Centre had gathered extensive evidence of crimes, requested that SAPS investigate the crimes, and then litigated this case through to the Constitutional Court. This groundbreaking decision demonstrates how South African civil society organisations are continuing to ensure the government fulfils its obligations under international law.

With thanks to Emma Palmer for writing this report on the seminar.