- National Commissioner of Police v Southern African Human Rights Litigation Centre and Another 2015 (1) SACR 255 (CC)

In 2007 in Harare, the Zimbabwe police raided the headquarters of the main opposition political party whereafter they detained and allegedly tortured (Afrikaans: "martel") 100 Zimbabwean nationals. The Southern African Human Rights Litigation Centre ("the Centre") collected evidence of the torture and delivered it to the South African National Prosecuting Authority ("NPA"), along with the request that the NPA consider the evidence and decide whether to investigate what the Centre asserted was the crime against humanity of torture referred to in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ("Act 27 of 2002").

The NPA referred the Centre's representations to the SAPS who ultimately declined (Afrikaans: "geweier") to investigate. This led to the Centre and the Zimbabwe Exiles' Forum applying successfully to the South African High Court in Pretoria to review and set aside the decision by the SAPS (see Southern African Litigation Centre v NDPP [2012] 3 All SA 198 (GNP)).

Following on this, the National Commissioner of the SAPS ("Nascom") appealed to the Supreme Court of Appeal in Bloemfontein ("the SCA") where the appeal (by Nascom) was dismissed and where the SCA ordered the SAPS to investigate (see Nascom v Southern African Human Rights Litigation Centre and Another 2014 (2) SA 42 (SCA)).

Again Nascom was not impressed, whereupon a further appeal was lodged before ten judges of our Constitutional Court (“Concourt”). The issues to be determined, as well as the court's unanimous responses, were as follows:

1. Where an international crime is committed outside of South Africa, does the suspected perpetrator need to be present in South Africa for the SAPS to investigate the said crime?

Concourt's response: No - neither under international nor South African law.

2. Does our South African Constitution place a duty on the SAPS to investigate the crime against humanity of torture?

Concourt's response: Yes - this duty arises from section 205(3) of our South African Constitution*, read with section 4(1) of Act 27 of 2002* and section 17D(1)(a) of the SAPS Act 68 of 1995*.

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[This is only an extract of an article published in Pollex in Servamus: January 2018. To enquire how to obtain the rest of this article, contact Servamus’s offices at tel: 012 345 4660 or send an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it.]