IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: CCT 02/14 SCA Case No: 485/12 NGHC Case No: 77150/09 In the application of:
THE TIDES CENTER Applicant for admission as amicus curiae
In re:
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE
Applicant
and
SOUTHERN AFRICAN HUMAN RIGHTS LITIGATION CENTRE
First Respondent
ZIMBABWE EXILES FORUM Second Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
MORAY HOWARD HATHORN
do hereby make oath and state that:
1. I am an attorney of the High Court of South Africa, practising as a partner in the firm Webber Wentzel, situated at 10 Fricker Road, Illovo Boulevard, Johannesburg. I am the attorney of record in this application for The Tides Center, a non-profit public benefit corporation (EIN 94-3213100), registered in the federal state of California in the United States of America (“US”).
2. I am authorised to depose to this affidavit and bring this application on behalf of The Tides Center.
3. The facts contained in this affidavit are, unless otherwise stated or indicated by the context, within my personal knowledge, and are, to the best of my knowledge and belief, true and correct.
INTRODUCTION
4. This is an application in terms of Rule 10 of the Constitutional Court Rules for the admission of The Tides Center as amicus curiae in the proceedings between the National Commissioner of the South African Police Service ("SAPS") and the Southern African Humans Rights Litigation Centre and Another, under Case Number CCT 02/14. The Tides Center was previously admitted as an amicus curiae in this matter before the Supreme Court of Appeal.
5. AIDS-Free World, a project of The Tides Center, is a not-for-profit international advocacy organisation. It has an interest in this matter because it campaigns for the effective prosecution of sexual violence as crimes against humanity, in
order to achieve justice for its victims. I shall refer to The Tides Centre (including AIDS-Free World) as "AFW".
6. In this affidavit, I shall deal with the following issues in turn:
6.1. First, the identity of AFW and its interest in these proceedings;
6.2. Secondly, the steps taken by AFW to obtain the consent of the parties in terms of Rule 10;
6.3. Thirdly, the position of AFW in these proceedings and its submissions on the material issues before this Court;
6.4. Fourthly, the relevance of these submissions, how they would assist the Court, and how they differ from those of the other parties;
6.5. Fifthly, if AFW is admitted by this Court, AFW’s submissions on an appropriate timetable for the filing of argument and the future conduct of this matter.
THE INTEREST OF AFW
7. The Tides Center is a non-profit public benefit corporation based in California, US. I attach hereto as MHH1 a copy of the articles of incorporation of the Tides Center.
8. Article IV of the articles of incorporation records, inter alia, that the Tides Center “is organised and operated exclusively for charitable and educational purposes”.
9. The Tides Center has five principal areas of charitable interest: social justice, community affairs, economic public policy and enterprise development, international affairs, and environment and natural resources. The Center is responsible for approximately 160 projects worldwide, with expenditures totalling around $99 million. I attach as MHH2 a letter from Mr Kriss Deiglmeier, Chief Executive Officer at the Tides Center, confirming the above.
10. AFW is a project of the Tides Center. AFW is an international project which works to end impunity for international crimes of sexual violence, a major contributing factor in the spread of the HIV/AIDS epidemic, and in particular, instances where such violence constitutes crimes against humanity.
11. In achieving these objectives, AFW has an interest in the role domestic courts and organs of state will play in preventing, and/or ensuring justice for the victims of, widespread and systemic rape. AFW aims to eliminate instances of sexual violence and discrimination against women and to ensure that appropriate sanctions are attached to perpetrators of crimes against humanity.
12. AFW was actively involved in the investigation of alleged mass rape of female Zimbabwean supporters of the MDC in and around the general election in Zimbabwe in 2008. The evidence gathered by AFW revealed, among other things, that in the course of the orchestrated campaign of mass rape, the violent rapes of two women were allegedly committed in South African territory.
13. An extensive memorandum of evidence was presented to the SAPS and the NPA in December 2012, requesting that an investigation be launched on the
basis of the evidence. Copies of the memorandum are not attached hereto to avoid prolixity, but will be made available to this Court, should this be requested.
14. The SAPS indicated that investigations into the incidents of rape will commence once it has been established that the jurisdictional facts as set out in section 4(3) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“the ICC Act”) are satisfied.
15. The content of these jurisdictional requirements in section 4(3) is centrally implicated in the appeal before this Court.
16. In light of the above, it is contended that AFW has an interest in this matter.
CORRESPONDENCE WITH THE APPLICANT AND RESPONDENTS
17. AFW was admitted as an amicus curiae in this matter before the Supreme Court of Appeal. I attach a copy of the order of the Supreme Court of Appeal to this effect, dated 6 May 2013, as MHH3.
18. Before electing whether to apply to participate as amicus curiae in the Constitutional Court, the AFW obtained the written submissions of the parties in this Court, in order to ascertain whether AFW might be of assistance to this Court.
19. After consideration of the parties’ written submissions, AFW is of the view that it can bring to the Court submissions that are not only distinct from those of the parties, but would also be of use to this Court. I deal with these submissions below. I point out that the submissions AFW intends to make are different from the submissions that it made in the Supreme Court of Appeal: the issues traversed by AFW at that stage have in important measure been addressed by the parties and, in AFW’s assessment, different concerns arise at this stage.
20. I attach as MHH4 a copy of a letter of authority, dated 1 May 2014, from Ms A Keton, the Legal Director of the Tides Center, confirming the appointment of Webber Wentzel as attorneys of record to represent the Tides Center in this application to this Court.
21. After consideration of the parties’ written submissions, on 29 April 2014 AFW wrote to the Applicant and the Respondents seeking their consent for AFW's admission as amicus curiae. In both cases, bearing in mind the limited time remaining until the hearing of this matter, AFW requested that the parties inform it of their decision by 10:00 on Friday 2 May 2014.
22. A copy of the letter to the Applicant and the Respondents is annexed hereto marked MHH5.
23. The Applicant has not yet responded to AFW’s request. On or about 12:00 today, I personally called the State Attorney, who represents the Applicant, to try to obtain a response, but the call went unanswered.
24. In the interests of total openness, I attach as MHH6 a letter that was received from the Applicant in response to the application of AFW to be admitted as an amicus curiae in the Supreme Court of Appeal. I point out that the concerns of the Applicant were addressed and AFW was admitted as an amicus curiae. In any event, the submissions of AFW before this Court, if AFW is admitted, will be of a different nature to the submissions made before the Supreme Court of Appeal.
25. On 2 May 2014 at 09:27, the attorney for the Respondents replied via email, stating that his clients will be granting consent for AFW to be admitted, and that a letter to that effect would be sent shortly. A copy of this email is attached hereto marked MHH7. The aforesaid letter was transmitted to the Tides Center's attorneys at 12:22 on 2 May 2014, and is annexed hereto marked MHH8.
26. In the event that any party wishes to oppose this application, AFW has stated, in the notice of application to which this affidavit is annexed, that any opposing affidavits are to be filed by 6 May 2014, or by a date determined by the Court.
27. The limited nature of the time afforded to the parties to oppose this application is unfortunately a necessity if reasonable time is to be left, before the hearing on 19 May 2014, for AFW to file submissions and for the parties to be able to file responses thereto.
28. On the basis of the above facts, AFW applies to this Court, and/or to the Chief Justice, to be admitted as an amicus curiae in terms of Rule 10 of the Rules of this Court.
THE POSITION AND SUBMISSIONS OF AFW
29. It is not disputed by any party that Section 205 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and the South African Police Service Act 68 of 19951 impose a duty on the SAPS to investigate all crimes under South African law.
30. The ICC Act recognises crimes against humanity, regardless of where they were committed, as crimes in South Africa and under South African law.
31. This matter concerns the obligations on SAPS to investigate international crimes.
32. AFW submits that SAPS must investigate and take reasonable action concerning allegations of international crimes even where there is no clear prospect of the alleged perpetrator being in South Africa from time to time.
33. This is because SAPS’s investigations will inherently achieve other important results, including:
1 See the preamble to the SAPS Act.
33.1. Most importantly, the collection of evidence to give to international and/or foreign courts, so that those courts can take appropriate action against the alleged offenders;
33.2. The reinforcing of SAPS’ duty to cooperate with regional and international criminal investigations;
33.3. Such investigations have an important benefit even if the offender is in a state which is presently not friendly to the international law regime, as it forecloses opportunities for travel and impunity for the offender and thereby ensures that countries such as South Africa are not regarded as safe-havens for offenders; and
33.4. After collection of evidence and the production of a prima facie case, SAPS will be in a better place to take the decision on whether to take steps, such as extradition applications, to secure the presence of the alleged perpetrator. Whether an alleged perpetrator intends to travel to South Africa on his or her own initiative is accordingly not the only consideration.
34. Put differently, the parties and the SCA appear to adopt an approach that places undue emphasis both on a prosecution in South Africa and which fails to acknowledge the importance of mechanisms such as extradition available to secure the attendance of an alleged perpetrator. Furthermore, by emphasising the prospect of a domestic prosecution, undue emphasis is placed on the
presence requirement, this being material to whether a South African court can assert jurisdiction.
35. But this is not correct.
36. South Africa is not alone in the fight against international crime, nor is South Africa expected, under international law, to invest resources only into those crimes and prosecutions which occur in South African territory.
37. International and regional law envisages cooperation between states in the fight against impunity. Indeed, AFW submits that international and regional law requires such cooperation.
38. Crimes against humanity have been recognised in customary international law2 and various multilateral international treaties and conventions3 as crimes at the international level. Due to their particularly heinous nature, crimes against humanity attract universal jurisdiction which allows national courts of signatory states to the Rome Statute to prosecute "core crimes"4 based, inter alia, on a common interest of the international community to end impunity for such "core crimes".
2 A Cassese et al (eds) The International Criminal Court: A Commentary vol I (2002) at 64.
3 Article 7 of the Rome Statute. See also article 5 of the Torture Convention. See further IT-95-17 / 1 T10 (Trial Chamber of ICTY, Judgment, 10-12-1998), 121 ILR 213, 260 ("Furundzija Case") which categorises Torture as a crime under customary international law. Torture is designated as a form of crime against humanity under the Rome Statute. See further Article 5 of the African [Banjul] Charter on Human and Peoples' Rights.
4 Article 5 of the Rome Statute, read with the preamble, recognises genocide, crimes against humanity, war crimes and the crime of aggression as crimes over which "every State [has a duty] to exercise its criminal jurisdiction" in an attempt "to end impunity for the perpetrators of these crimes and this to contribute to the prevention of such crimes".
39. The Rome Statute represents an international agreement between various States, including South Africa, which requires the domestication of crimes against humanity, and their effective investigation and prosecution by each of the State parties and the International Criminal Court ("ICC").5 South Africa is also obliged under the Rome Statute, various other international instruments6 as well as domestic legislation7 to assist the ICC and other States in the investigation of crimes against humanity.
40. South Africa has thus assumed an unambiguous obligation in international law to recognise crimes against humanity as crimes in South Africa, to investigate and prosecute these crimes and to assist other States and the ICC in investigating and prosecuting crimes against humanity in their jurisdictions.
41. An important part of this assistance must be that SAPS will investigate, within reason and subject to the usual constraints on its investigative powers,
5 Section 4(1) of the ICC Act designates and criminalises crimes against humanity as a crime under South African law, providing that "despite anything to the contrary in any other law of the Republic, any person who commits a crime [defined as the crime of genocide, crimes against humanity and war crimes in section 1 of the ICC Act], is guilty of an offence an liable on conviction to a fine or imprisonment".
6 Article 86 of the Rome Statute and Article 9 of the Torture Convention. See also UN General Assembly Resolution 2583 (XXIV) of 15 December 1969 which reiterates the importance of proper investigation into crimes against humanity by "[Calling upon] all states concerned to take the necessary measures for the thorough investigation of…crimes against humanity, as defined in article 1 of the Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity…and for the detection, arrest, extradition and punishment of all…persons guilty of crimes against humanity…". See also Article 2 of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Istanbul Principles") recommended by General Assembly Resolution 55/89 of 4 December 2000 which provides that "states shall ensure that complaints and reports of torture or ill treatment are promptly and effectively investigated, Even in the absence of an express complaint, an investigation shall be undertaken if there are other indications that torture or ill-treatment might have occurred", Torture is recognised as a crime against humanity under Article 7(1)(f) of the Rome Statute.
7 For instance, the International Co-operation in Criminal Matters Act, 1996.
international crimes even where the ultimately-intended prosecution is not within South Africa.
42. Consider this example: A crime against humanity of widespread and systemic forcible deportations is committed in, hypothetically, Botswana. Many of the victims (or other sources of evidence) subsequently flee to South Africa,8 and bring their evidence to the attention of SAPS. The perpetrators, however, make credible statements to the effect that they will never come to South Africa.
43. The fact that the perpetrators are unlikely to come to South Africa would not, AFW submits, relieve SAPS of the duty to investigate the evidence. This duty remains untrammelled. SAPS should first investigate the evidence, and thereafter, a number of options may arise:
43.1. The evidence may be insufficient to justify any further investigation and the matter is closed;
43.2. SAPS can make the evidence available to the relevant authorities in Botswana (assuming the authorities are not complicit in the crime and there is a reasonable prospect of prosecutions in Botswana);
43.3. SAPS can make the evidence available to the Prosecutor of the International Criminal Court, or to another appropriately empowered international or regional tribunal;
8 AFW does not seek to submit that SAPS’ investigative powers extend beyond the borders of South Africa.
43.4. SAPS can retain the evidence and remain in readiness to arrest and prosecute any of the perpetrators should they come to South Africa; or 43.5. SAPS can take steps to compel the presence of the perpetrators in
South Africa, for example by extradition or the issue of an international arrest warrant.9
44. Which of the above options SAPS would employ would depend on the facts and its own lawfully-exercised discretion. The only point that AFW makes is that SAPS cannot refuse to investigate merely because the perpetrators are unlikely to come to South Africa.
45. To be clear, AFW does not advocate an absolutist position that would require SAPS to investigate all crimes without constraint. If the identical crime of forcible deportation occurred in, for example, Canada, and none of the victims or evidence was in South Africa, SAPS might reasonably not pursue an investigation into that crime notwithstanding that the crime was identical to the one committed in Botswana.
9 The ICC Act read with the National Prosecuting Authority Act, 1998. The Priority Crimes Litigation Unity ("PCLU") was created by Presidential Proclamation on 23 March 2003 and is located in the office of the National Director of Public Prosecutions. The PCLU's mandate is to manage and direct investigations and prosecutions arising from, inter alia, the Rome Statute The PCLU has no investigative capacity and is reliant on the SAPS an the Directorate for Priority Crimes Investigation ("DPCI") in this regard. Crimes against humanity are, by virtue of the ICC Act, crimes within South Africa. The preamble to the ICC Act sets out South Africa's commitment to bring "persons who commit such atrocities to justice…in a court of law of the Republic in terms of its domestic law where possible". Further, section 3 of the ICC Act provides, as one of its objects, the enabling "as far as possible and in accordance with the principle of complementarity…the national prosecuting authority of the Republic to prosecute and the High Courts…to adjudicate in cases brought against any person accused of having committed a crime in the Republic and beyond the borders of the Republic in certain circumstances". As such, any application for an international arrest warrant must be made to the PCLU and the DPCI.
46. Within the range of factors that can reasonably impact on an investigation, the presence of the alleged perpetrator – despite having assumed such prominence between the parties in this matter – is of only secondary importance.
47. Practically, such presence would only be necessary once the investigation establishes a prima facie case which may lead to prosecution in South Africa.
48. The more important questions/considerations facing SAPS hence concern, for example, the availability of evidence.
49. The existence or content of the duty to investigate thus cannot be solely or primarily related to the likelihood of the alleged perpetrator being present in South Africa in the future.
THE NOVELTY AND UTILITY OF AFW’S SUBMISSIONS
50. AFW contends that the above submissions reflect a proper interpretation of South Africa’s international and domestic remedies. Furthermore, the submissions are distinct from those of the other parties, and indeed from the interpretation of the Supreme Court of Appeal.
51. It is important to understand the significance of AFW’s core submissions in the context of the facts of this case, as the arguments in this matter have thus far been driven in a rather casuistic and fact-dependent fashion.
52. To summarise very briefly, the genesis of this case was the submission of a dossier of evidence to, inter alia, the Applicant by the Respondents, concerning alleged crimes against humanity in Zimbabwe.10
53. SAPS refused to investigate the alleged crimes, on the basis, inter alia, that SAPS’s competence to investigate crimes did not extend to crimes beyond South Africa’s borders,11 that there was no prospect of the alleged perpetrators arriving in South Africa,12 and that accordingly no prosecution could be successful as South African law does not permit trials in absentia.13
54. Although the Supreme Court of Appeal (rightfully) rejected the claim that SAPS cannot investigate crimes that were committed outside of South Africa, it (wrongly) appeared to operate off the assumption that SAPS need only concern itself with prosecutions within South Africa, and hence accepted that the prospect of a perpetrator being in the country was essential.
55. So at paragraph 66 of its judgment, the Supreme Court of Appeal held:
10 The SCA judgment, paras 7-15.
11 The SCA judgment, para 29 and 47.
12 The SCA judgment, paras 28-29.
13 The SCA judgment, para 50.
“I can understand that, if there is no prospect of a perpetrator ever being within a country, no purpose would be served by initiating an investigation. If there is a prospect of a perpetrator’s presence, I can see no reason, particularly having regard to the executive and legislature’s earnest assumption of South Africa’s obligations in terms of the Rome Statute, and for the reasons set out in the paragraph that follows, why an investigation should not be initiated.”
(Emphasis added.)
56. At paragraph 67, the Supreme Court of Appeal further held that SAPS had erred, because:
“The investigations by Marion concerning visits to the country by the alleged perpetrators do not discount entirely the possibility of future visits.”
57. The Respondents also appeared to accept that the presence, even if only anticipated presence, of the alleged perpetrator in South Africa was an important consideration,14 as did SAPS.15
58. AFW respectfully submits that the parties and the Supreme Court of Appeal erred in this approach.
59. The danger in this approach is that it would allow the SAPS to refuse to investigate any alleged crime where SAPS could reasonably claim that the perpetrator was unlikely to enter South Africa. Indeed, SAPS has argued that publicity surrounding this case obviates the need for an investigation, since it has made the perpetrators presence in South Africa unlikely.
14 The SCA judgment, para 52.
15 The SCA judgment, para 57.
60. This is not a factor which SAPS can or should take into consideration.
61. The reasoning of the Supreme Court of Appeal results in an unduly restrictive approach to the power and duty to investigate international crimes. Indeed, there is a real danger that future investigations into international crimes – such as the investigations into mass rape that AFW has been conducting – will be derailed or undermined by a lack of support from SAPS, because SAPS will rely on the fact that the perpetrators lie beyond South Africa’s borders or publicity surrounding a potential investigation has made their presence unlikely.
62. This Court is accordingly presented with the opportunity to place South African jurisprudence vis-à-vis the investigation of international crimes on the correct, principled, legal basis. The precedent that is set by this case will materially affect the manner in which SAPS approaches investigations of international crimes not only in respect of the facts of the case before it but into the future.
63. AFW submits that it can be of assistance to the Court in its task.
THE FUTURE CONDUCT OF THIS MATTER
64. In the event that AFW is admitted as an amicus curiae in this Court, AFW requests that it be granted leave to make both written and oral submissions.
65. AFW’s oral submissions will, subject to questioning by the Court, be brief and counsel will abide any time restrictions imposed by the Chief Justice / the Court.
66. It is further submitted that a reasonable timetable for the filing of written submissions would be:
66.1. AFW is to file its submissions by 12 May 2014; and
66.2. any party who wishes to reply to AFW’s submissions is to do so by 16 May 2014.
67. It is understood that other parties may also seek to be admitted as amici curiae. However, it is not at this stage known what submissions are intended to be made. In the event of these parties also being admitted as amici curiae, AFW undertakes, insofar as possible, to liaise with such amici curiae to avoid undue duplication of submissions.
CONCLUSION
68. AFW respectfully contends that its submissions on the above issues will be beneficial to this Court in the determination of the issues before it and differ materially from the submissions made by the parties.
69. AFW thus requests that it be admitted as an amicus curiae and permitted to participate in these proceedings in the manner set out in the notice of application to which this affidavit is attached.
_______________________
MORAY HOWARD HATHORN
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at on this the ______
day of MAY 2014, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
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