Reflections on the evolving jurisprudence concerning the presence of the accused : focusing on National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another

Master Thesis


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University of Cape Town

On 30 October 2014 South Africa's Constitutional Court unanimously stated that the South African Police Service was obligated to investigate allegations of torture in Zimbabwe. This landmark decision, based on South Africa's international obligations and domestic legislation, is rooted in the Court's interpretation of universal jurisdiction and in particular its application of the presumption of the "anticipated presence" of the accused. The case, first heard in the North Gauteng High Court in 2012 before being taken on appeal to the Supreme Court of Appeal and Constitutional Court, concerned allegations of torture against ZANU-PF officials and Zimbabwean police during the run-up to elections in 2007. This final judgment imposes a binding obligation on the South African Police Service to investigate the allegations, prior to any decision on further prosecution. This dissertation begins by providing a background to South Africa's implementation of the Rome Statute domestically before focusing on the theoretical framework of universal jurisdiction. This is followed by an examination of the South African jurisprudence, in particular the judgment of the Constitutional Court in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another. The Constitutional Court's decision to allow for the exercise of universal jurisdiction in absentia (otherwise known as "anticipated presence") must be located within the broader concept of jurisdiction. Anticipated presence is a controversial issue and this paper will explain both the Court's reasoning as well as possible implications of this judgment. The fight against impunity for perpetrators of international crimes, emphasised by both the Rome Statute and South Africa's own legislation, has been strengthened by this judgment. This paper will also examine the remaining areas of concern which were not addressed by the Constitutional Court. This Constitutional Court judgment will define the approach of South African courts in forthcoming cases concerning the application of the Rome Statute. Despite the Constitutional Court's failure to take all factors into account in its judgment, this landmark decision has changed the legal landscape considerably and will be a powerful tool to counter the culture of impunity.