Domestic application of international law
Republic of South Africa
Domestic
LegislationJudicial Decisions Truth and Reconciliation Commission Resources and
Links
Crimes Crime of Aggression
No specific provision.
Crimes Against Humanity
Crimes against humanity are defined in Part 2 of Schedule 1 of the Implementation of the Rome Statute of the International Criminal Court Act (2002) of South Africa. See:
Implementation of the Rome Statute of the International Criminal Court Act, 2002. (Act No. 27 of 2002)
Government Gazette No. 23642, Vol. 445, Cape Town, South Africa, 18 July 2002. [ENG]Genocide
Genocide is defined in Part 1 of Schedule 1 of the Implementation of the Rome Statute of the International Criminal Court Act (2002) of South Africa. See:
Implementation of the Rome Statute of the International Criminal Court Act, 2002. (Act No. 27 of 2002)
Government Gazette No. 23642, Vol. 445, Cape Town, South Africa, 18 July 2002. [ENG]War Crimes
War Crimes are defined in Part 3 of Schedule 1 of the Implementation of the Rome Statute of the International Criminal Court Act (2002) of South Africa. See:
Implementation of the Rome Statute of the International Criminal Court Act, 2002. (Act No. 27 of 2002)
Government Gazette No. 23642, Vol. 445, Cape Town, South Africa, 18 July 2002. [ENG]
Additional legislation regarding war crimes:
Implementation of the Geneva Conventions Act, 2012. (Act No. 8 of 2012)
Government Gazette, No. 35513, Vol. 565, South Africa, 12 July 2012
South African Red Cross Society and Legal Protection of Certain Emblems Act, 2007. (Act No. 10 of 2007)
Government Gazette, No. 30178, Vol. 506, South Africa, 16 August 2007
Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006. (Act No. 27 of 2006)
Government Gazette, No. 30477, Vol. 509, South Africa, 16 November 2007
Anti-Personnel Mines Prohibition Act, 2003. (Act No. 36 of 2003)
Government Gazette, No. 25820, Vol. 461, South Africa, 05 December 2003
Addition of the Convention on the prohibition of bacteriological and toxin weapons as a schedule of the non-proliferation of weapons of mass destruction act, 1993.
Government Gazette, No. 23165, Vol. 440, South Africa, 26 February 2002
Regulations relating to the Implementation and Administration of the Chemical Weapons Convention, 1997.
Government Gazette No. 18014, Vol. 383, South Africa, 23 May 1997
International Co-operation in Criminal Matters Act, 1996. (Act No. 75 of 1996)
Government Gazette No. 17587, Vol. 377, South Africa, 20 November 1996
Non-Proliferation of Weapons of Mass Destruction Act, 1993. (Act No. 87 of 1993)
Government Gazette, No. 14919, Vol. 337, South Africa, 02 July 1993
Geneva Convention Government Notice No. 937 of 1915. 03 September 1915.
Jurisdiction
Jurisdiction◼ According to ss 4 and 5 of the Implementation of the Rome Statute of the International Criminal Court Act:
"Jurisdiction of South African courts in respect of crimes
See:
4. (1) Despite anything to the contrary in any other law of the Republic, any person who commits a crime, is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.
(2) Despite any other law to the contrary, including customary and conventional international law. the fact that a person--(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official: or
(3) In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits a crime contemplated in subsection (1) outside the 50 territory of the Republic, is deemed to have committed that crime in the territory of the Republic if--
(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither--(i) a defence to a crime; nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.(a) that person is a South African citizen: or
(b) that person is not a South African citizen but is ordinarily resident in the Republic; or
(c) that person, after the commission of the crime, is present in the territory of the Republic; or
(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic."
"Institution of prosecutions in South African courts
5. (1) No prosecution may be instituted against a person accused of having committed a crime without the consent of the National Director.
(2) No prosecution may be instituted against a person accused of having committed a crime if the crime in question is alleged to have been committed before the commencement of the Statute.
(3) The National Director must, when reaching a decision on whether to institute a prosecution contemplated in this section, give recognition to the obligation that the Republic, in the first instance and in line with the principle of complementarity as contemplated in Article 1 of the Statute, has jurisdiction and the responsibility to prosecute persons accused of having committed a crime.
(4) The Cabinet member responsible for the administration of justice must, in consultation with the Chief Justice of South Africa and after consultation with the National Director and. in writing, designate an appropriate High Court in which to conduct a prosecution against any person accused of having committed a crime.
(5) If the National Director, for any reason, declines to prosecute a person under this section, he or she must provide the Central Authority with the full reasons for his or her decision and the Central Authority must forward that decision, together with the reasons, to the Registrar of the Court.
(6) A decision by the National Director not to prosecute a person under this section does not preclude the prosecution of that person in the Court."
Full text of the Implementation of the Rome Statute of the International Criminal Court Act, 2002. (Act No. 27 of 2002)
◼ According to the information provided by South Africa on the scope of universal jurisdiction in accordance with General Assembly resolution 64/117:"3.4.1 In practice, South Africa will not try a person for an international crime unless it has been criminalised under its domestic law, as is the case with the crimes provided for in the Rome Statute that was incorporated by means of the Implementation of the Rome Statute of the International Criminal Court Act (Act 27 of 2002). The basis for jurisdiction over genocide, crimes against humanity and war crimes are therefore the Act incorporating these crimes into South African domestic law, and not the principle of universal jurisdiction. This Act requires a Jurisdictional link between the crime and South African jurisdiction, namely nationality of South Africa or residence on its territory, the presence of the perpetrator, irrespective of nationality, on South African territory or on the basis of the passive personality principle (Section 4(3)).
See:
3.4.2 The Constitution of the Republic of South Africa, 1996 provides in Section 231(4) that an international agreement becomes law in the Republic when it is incorporated into national legislation. The Rome Statute has been so incorporated and can therefore be applied as South African law, as is the case with other international treaty.
3.4.3 The Constitution further provides in Section 232 that customary international law Is law in the Republic unless it is Inconsistent with the Constitution or an Act of Parliament. This raises the possibility that in a case where universal jurisdiction for an international crime becomes accepted in customary international law and such a crime is not a treaty crime incorporated into South African domestic law, jurisdiction may exist in South African domestic law by virtue of the provisions of Section 232 without a jurisdictional link existing between South Africa and the crime. However, until the Courts pronounce in this respect this remains mere speculation".
Information provided by South Africa on the scope of universal jurisdiction in accordance with General Assembly resolution 64/117.
The scope and application of the principle of universal jurisdiction (Agenda item 86), General Assembly of the United Nations, Sixth Committee (Legal), sixty-fifth session (4 October to 11 November 2010).
[General Assembly resolution 64/117 (A/RES/64/117) of 15 January 2010, "[R]equests the Secretary-General to invite Member States to submit, before 30 April 2010, information and observations on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and to prepare and submit to the General Assembly, at its sixty-fifth session, a report based on such information and observations." This document contains the reply provided by Slovenia to the said request.]
International Criminal Court
Rome Statute of the International Criminal Court: South Africa signed the Rome Statute on 17 July 1998 and deposited its instrument of ratification on 27 November 2000. However, in accordance with article 127 (1) of the Rome Statute of the International Criminal Court, the Government of South Africa notified the Secretary-General of its decision to withdraw from the Rome Statute of the International Criminal Court (Depositary Notification: C.N.786.2016.TREATIES-XVIII.10 /// Date of notification: 19 October 2016). On 7 March 2017, the Government of South Africa notified the Secretary-General of the revocation of its notification of withdrawal from the Rome Statute deposited with the Secretary-General on 19 October 2016. (C.N.121.2017.TREATIES-XVIII.10 of 7 March 2017).
Implementation of the Rome Statute of the International Criminal Court Act, 2002. (Act No. 27 of 2002)
Government Gazette No. 23642, Vol. 445, Cape Town, South Africa, 18 July 2002. [ENG]
Withdrawal process and revocation of withdrawal (2016-2017):
South Africa revokes ICC withdrawal
Mail & Guardian, Johannesburg, 08 March 2017. [ENG]
South Africa: Withdrawal of notification of withdrawal from the Rome Statute of the ICC.
C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification), 07 March 2017. [ENG]Judgment of the High Court of South Africa ruling that withdrawal process from the Rome Statute of the ICC without prior parliamentary approval is unconstitutional and invalid
High Court of South Africa, Gauteng Division, Case No. 83145/2016, Pretoria, 22 February 2017. [ENG]
El Tribunal Superior de Pretoria anuló la retirada de la CPI por falta de trámite parlamentario
Télam, Bs As, 22 febrero 2017. [SPA]South African judge blocks attempt to withdraw from ICC
By Jason Burke, The Guardian, Johannesburg, 22 February 2017. [ENG]Court Blocks South Africa's Withdrawal from International Criminal Court
By Merrit Kennedy, National Public Radio, Washington D.C., 22 February 2017. [ENG]
Statement by South Africa at the 15th Session of the Assembly of States Parties to the Rome Statute of the ICC. Radio Nizkor [MP3 Audio file]. [10min39ss]. [ENG]
Opening Statement By Mr T.M Masutha for the Republic of South Africa at the 15th meeting of the Assembly of States Parties of the International Criminal Court.
Assembly of States Parties to the Rome Statute of the International Criminal Court, 15th session (16–24 November 2016), The Hague, The Netherlands. [ENG]South Africa parliament backs govt on withdrawal from 'biased' ICC.
By Abdur Rahman Alfa Shaban, Africanews, Cape Town, South Africa, 03 November 2016. [ENG]ICC Withdrawal Welcomed and Process with Parliament - Committee.
Mr Sibongile Maputi, Parliamentary Communication Services, Parliament of the Republic of South Africa, Cape Town, South Africa, 03 November 2016. [ENG]South Africa says it will quit the International Criminal Court
By Kevin Sieff and Krista Mahr, Nairobi and Johannesburg, The Washington Post, 21 October 2016. [ENG]South Africa Announces Withdrawal From International Criminal Court
By Camila Domonoske, The Two Way, NPR, Us, 21 October 2016. [ENG]South Africa begins process to withdraw from International Criminal Court
By Michelle Nichols, Mail&Guardian, Johannesburg, South Africa, 21 October 2016. [ENG]
The Truth and Reconciliation Commission (TRC) is based on the final clause of the Interim Constitution of 1993 and passed in Parliament as the Promotion of National Unity and Reconciliation Act, No 34 of 1995.
Promotion of National Unity and Reconciliation Act, No 34 of 1995, Cap 4.
The final report of the TRC is available under the "Resources and Links" section below.
The South African Constitution.
The Department of Justice and Constitutional Development, Republic of South Africa. [ENG]. [Last accessed 25Jul17]. [External link]
Constitution of the Republic of South Africa, 1996. (With amendments up to 2009)
The Department of Justice and Constitutional Development, Republic of South Africa. [ENG]. [Last accessed 25Jul17]. [External link to pdf file]
Bill of Rights. (Chapter 2, Section 7-39)
The Department of Justice and Constitutional Development, Republic of South Africa. [ENG]. [Last accessed 25Jul17]. [External link]
Criminal Procedure Act. (Act No. 51 of 1977)
The Department of Justice and Constitutional Development, Republic of South Africa. [ENG]. [Last accessed 25Jul17]. [External link to pdf file]
Criminal Procedure Act. (Act No. 51 of 1977. Version updated 29 June 2017)
University of Pretoria Law Library. [ENG]. [Last accessed 25Jul17]. [External Link]
The Government Gazette of South Africa.
[ENG]. [Last accessed 25Jul17]. [External Link]
Acts, Bills and Notices. Government of South Africa. [ENG]. [Last accessed 25Jul17]. [External Link]
Legislation.
The Department of Justice and Constitutional Development, Republic of South Africa. [ENG]. [Last accessed 25Jul17]. [External link]
Current Legislation.
University of Pretoria Law Library. [ENG]. [Last accessed 25Jul17]. [External Link]
Legislation Search.
University of Pretoria Law Library. [ENG]. [Last accessed 25Jul17]. [External Link]
Constitutional Court Cases & Judgments (since 1994)
Constitutional Court of South Africa. [ENG]. [Last accessed 26Jul17]. [External Link]
African Human Rights Document Database - South Africa.
Centre for Human Rights, University of Pretoria Law Library. [ENG]. [Last accessed 25Jul17]. [External Link]
African Human Rights Case Law Database - South Africa.
Centre for Human Rights, University of Pretoria Law Library. [ENG]. [Last accessed 25Jul17]. [External Link]
South African Courts, Tribunals and Journals. (Database of national and provincial gazettes and judicial decisions).
Southern African Legal Information Institute. [ENG]. [Last accessed 26Jul17]. [External Link]
The Southern African Legal Information Institute.
[ENG]. [Last accessed 25Jul17]. [External Link]
Truth and Reconciliation Commission.
Official Website. [ENG]. [Last accessed 25Jul17]. [External Link]
The Truth and Reconciliation Commission report.
Official Website. [ENG]. [Last accessed 25Jul17]. [External Link]
List of International Humanitarian Law Treaties to which South Africa is a State party. [ENG]
(International Committee of the Red Cross). [ENG]. [Last accessed 25Jul17]. [External Link]