In this significant, thoughtful and considered judgment, on which the Constitutional Court will no doubt have the final say, the court found that criminal indictments which include the crime of apartheid as a reference to the crime under customary international law in terms of Section 232 of the Constitution, and not the crime of apartheid as a crime against humanity under the International Criminal Court Act (“the ICC Act”), are not subject to any statute of limitation.
The accused were each charged with a crime against humanity, namely murder, read with Section 232 of the Constitution.
The State contended that the accused’s conduct was part of a systematic attack or elimination of political opponents of the apartheid regime and that they formed part of an institutionalised regime of systematic oppression and domination, by one racial group over another racial group with the intention of maintaining that domination.
The prosecution was instituted in 2021, some 40 years after the crimes were alleged to have been committed. Section 18(1) of the Criminal Procedure Act of 1977 limits prosecutions to 20 years but since 2002 not for genocide crimes against humanity and war crimes.
The accused argued that because the State chose to rely on customary international law and not the offense of a crime against humanity created in terms of the ICC Act that the right to prosecute was time-barred.
The court in a detailed analysis of the relevant law including international laws and customs held that under South African law crimes against humanity can be brought by the State either in terms of conventions that South Africa has signed, ratified and duly implemented such as, for example, the ICC Act, or in terms of customary international law as admitted into South African law by Section 232 of the Constitution.
Customary international law is a source of international law developed through state custom or practice and is in effect the “common law” of the international legal system.
The court held:
“Unlike treaties, no specific action is required to incorporate customary international law into the Republic’s legal system, its mere existence is sufficient and customary international law automatically forms part of the law of the Republic, unless it is inconsistent with the Constitution or an Act of Parliament…
Apartheid was declared a crime against humanity by the United Nations General Assembly in 1966. It was placed beyond any ‘statute of limitation’, i.e time bar, by an International Treaty in 1968, and comprehensively criminalised under the United Nations Convention on the Suppression and Punishment of the Crime of Apartheid in 1973 (‘the Apartheid Convention’). These sources all predate the crimes charged in the matter ….”
The court said that apartheid as a crime against humanity passed into customary international law prior to the crimes committed under consideration in the case.
The court acknowledged the principle that an accused cannot be prosecuted for an action unless it was defined as a crime punishable at the time it was committed and has a right to a fair trial including the right not to be convicted for conduct that was not an offence under either national or international law at the time it was committed.
The court went on to say that there is considerable amount of foreign and regional case law that confirms that statutes of limitations do not apply to crimes against humanity and other core international crimes.
The Convention on Statutory Limitations prohibits the application of statutory limitations including the principle of undue delay to crimes against humanity. While South Africa has not ratified the Convention on Statutory Limitations because the non-applicability of statutes of limitations to serious international crimes has become a peremptory norm of international law, South Africa is bound by that norm whether or not it was ratified by the Convention or not.
The court went on to conclude:
“The crimes which the accused are charged with are imprescriptible. Based on South Africa’s international obligations there can be no time bar for the prosecution of crimes against humanity. The seriousness of crimes against humanity must be prosecuted irrespective of when they occurred. Therefore, there is no period within which charges must be brought. A delay in prosecution is not a defence in law to these crimes, nor does it waiver the State’s right to prosecute.
The Constitutional Court decisions have already found that: (a) The state is obliged to prosecute crimes against humanity, including apartheid-era crimes that occurred before the Constitution came into force, (b) international law obliges the State to punish crimes against humanity, and (c) the practice of apartheid constituted a crime against humanity.”
The Court found that crimes against humanity are part and parcel of South African law and are not subject to any statute of limitation. The prosecution of the accused complies with the principle of legality under section 35(3)(I) of the Constitution in that prosecution through s232 does not violate the principle of legality as it does not retroactively create new crimes. Instead, it recognises and enforces pre-existing crimes under customary international law, ensuring that perpetrators are held accountable for actions that were already considered criminal at the time they were committed.