THE North Gauteng High Court will on Monday hear a landmark case on South Africa's obligations as a signatory to the Rome Statute of the International Criminal Court.
The Southern Africa Litigation Centre and the Zimbabwe Exiles Forum want the court to compel South Africa to abide by its legal obligations to investigate and prosecute high-level Zimbabwean officials accused of crimes against humanity.
As a signatory to the Rome Statute, which it incorporated into national law by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, South Africa committed itself to investigate and prosecute perpetrators of serious international crimes, irrespective of where they took place.
In 2008, the Southern Africa Litigation Centre sent a detailed docket to the Priority Crimes Litigation Unit of the National Prosecuting Authority, documenting acts of torture allegedly committed after a raid by Zimbabwean police on the headquarters of the opposition Movement for Democratic Change.
The centre wanted South Africa to arrest the Zimbabwean officials identified in the docket, but the NPA and the South African Police Service (SAPS) refused, saying it was impossible or impractical to investigate crimes committed in Zimbabwe.
On Monday, the centre and the forum are expected to argue in court that the refusal to investigate was based on the NPA's flawed understanding of jurisdiction in respect of crimes against humanity.
The national director of public prosecutions, the Priority Crimes Litigation Unit, the director-general of the Department of Justice and Constitutional Development and the national police commissioner have listed a number of reasons why they would not investigate and prosecute the Zimbabwean officials. One of the arguments is that international law places a strict obligation on the SAPS not to encroach on the sovereignty of another state.
The centre and the forum are also expected to argue that the NPA's assertion that the national director of public prosecutions and the Priority Crimes Litigation Unit were not empowered to initiate an investigation was flawed, and that the prosecutions chief's purported concern for "foreign relations" was speculative, blandly made and without any confirmation.
In his response filed in October 2010, Menzi Simelane, the national director of public prosecutions who is on special leave, said the arrest in South Africa of Zimbabwean cabinet ministers and heads of department would have a serious effect on the functioning of the safety and security portfolio in that country and lead to a diplomatic rift.
In their heads of argument, counsel for the centre and the forum said the reliance by Mr Simelane on unconfirmed concerns about foreign policy and South Africa's diplomatic relations was irrelevant and ought not to have been invoked to stifle the application of the Implementation of the Rome Statute of the International Criminal Court Act.
"The purpose of the act is to ensure that perpetrators of serious international crimes do not escape justice, a purpose which (the national director of public prosecutions, the justice minister and the minister of police) have ignored and undermined," they said.