Court hearing on Zim ‘torture victims’
VICTIMS of torture in Zimbabwe found it offensive that perpetrators could visit South Africa on shopping trips, and never face any legal action.
Making this submission to the Supreme Court of Appeal in Bloemfontein yesterday, Wim Trengove SC said it was important the South African authorities played their part in ensuring there was no impunity for crimes against humanity, such as systemic torture.
Trengove was appearing in an appeal about the duties of the South African police and prosecution services to investigate claims of crimes against humanity and, where warranted, charge those involved.
The case arose in March 2007 when more than 100 people were rounded up by Zimbabwe police at the headquarters of the official opposition Movement for Democratic Change in Harare. They were held for several days and, they claim, they were “continuously and severely tortured”.
The Southern Africa Litigation Centre then became involved in collecting affidavits from those who said they were tortured, and from doctors who examined them.
On the basis of this “torture dossier”, the centre asked the South African authorities to investigate. When they refused, the centre went to court.
A variety of reasons were given for refusing.
The police said any investi- gation would be seen as sanctioned by the South African government, and so a decision to investigate could “for obvious reasons” not be taken “in isolation”.
An investigation would “compromise diplomatic initiatives in Zimbabwe”, and would make things difficult for the South African Police Services when it took over the leadership of the Southern African Regional Police Chiefs Co-operation Organisation.
During May last year Judge Hans Fabricius found in favour of a joint challenge to this decision by the police and the prosecution service, brought by the centre and the Zimbabwe Exiles Forum. He said there was a duty in terms of South Africa’s international obligations to investigate allegations of serious international crime. The refusal by the authorities to act was unconstitutional and invalid.
Dissatisfied with the outcome, the police and prosecution services asked to appeal.
At the start of his submissions yesterday, Trengove said the centre did not suggest that the SAPS “should do anything on Zimbabwean soil”.
“We are talking about investigations here, in South Africa, on the basis of evidence collected here.”
When the judges put it to Trengove that the police and prosecution objected to the “zealous” attitude of potential witnesses, Trengove said it was up to the police to consider the evidence from witnesses and decide whether it was adequate.
He said the law on South Africa’s international duties obliged this country to help investigate international crimes, regardless of whether they were ever actually prosecuted in the local courts.
Evidence gathered in this way could be made available to international investigators, and would also help dispel the impression that such crimes could be committed “with impunity”.
Earlier, counsel for the police argued that the law properly interpreted meant that in the eyes of the South African authorities, an international crime was only “deemed” to have been committed once the alleged perpetrator entered this country. Until that time no action was required by South Africa, and no investigation could be begun.
“The offender must be physically present (in South Africa) after having committed the offence” for an investigation to be triggered.
Referring to this submission, Trengove said later it would be absurd for the law to say that “if you are here in (South Africa) on a shopping trip you are an international criminal. But when you leave tomorrow you are not”.
Judgment has reserved.
TORTURE CLAIMS: Morgan Tsvangirai, MDC leader, and other activists outside court in Harare, Zimbabwe, in March 2007. They were taken to hospital for injuries, allegedly from police torture, two days after they were arrested for trying to attend an opposition meeting.