The SCA dismissed an appeal by the national police commissioner and national director of public prosecutions in the matter.
The SAPS and the National Prosecuting Authority appealed against a judgment of the High Court in Pretoria which set aside a decision by the SAPS not to investigate complaints by the Southern Africa Litigation Centre.
That court held South Africa was obliged under international law to probe atrocities allegedly committed by officials in Zimbabwe. It found the NPA could prosecute the Zimbabweans concerned if they ever set foot in South Africa.
The Zimbabwean officials are accused of masterminding crimes against humanity by instituting a state-sanctioned reign of terror in their own country.
The SCA rejected a police submission that crimes against humanity were only deemed to have been committed once the perpetrators set foot in South Africa. The court held police could investigate, irrespective of whether the alleged perpetrators were in the country.
It further found the SAPS was obliged to initiate an investigation under international law into the alleged offences. The court found that on the police’s own version there was enough evidence to initiate an investigation. This included determining whether the alleged perpetrators were in South Africa.
Witnesses from Zimbabwe could be interviewed in South Africa without necessarily affecting Zimbabwe’s sovereignty.
“No doubt, in conducting that investigation, the police will consider issues such as the gathering of information in a manner that does not impinge on Zimbabwe’s sovereignty,” the judgment read.
“The police are free to consider whether a request should be made to Zimbabwean authorities for a prosecution to be initiated there.”
The full Bench found there was no universal rule or practice against the initiation of investigations in the absence of the alleged perpetrators. The court said it could not tell the police how to investigate such issues.