, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Discuss whether X may be charged by a South African court.
(a) Whether the Alleged Offences Fall Under South African Jurisdiction
The alleged offences committed by X in Zamunda—mercenary activities and the execution of over
200 victims—may be adjudicated by a South African court under the principle of extraterritorial
jurisdiction as provided for by specific statutory provisions.¹
The key statutory basis for jurisdiction is found in the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002. Section 4(3) of this Act provides that any person
committing offences such as genocide, war crimes, and crimes against humanity is deemed to have
committed the offence in the Republic if they are a South African citizen or permanent resident.² X,
being a former South African soldier, falls squarely within this category.
Additionally, the mass execution of over 200 men, women, and children constitutes crimes of
genocide and crimes against humanity as contemplated in the Rome Statute, which South Africa has
incorporated into domestic law. The Protection of Constitutional Democracy against Terrorist and
Related Activities Act 33 of 2004 also grants South African courts extraterritorial jurisdiction where
the offender is a South African citizen or resident.³
(b) The Authority Conferring Jurisdiction
The authority conferring jurisdiction on South African courts is derived from the following:
Section 110A of the Criminal Procedure Act 51 of 1977 provides that if a South African citizen
commits an offence outside the Republic and cannot be prosecuted by the courts of the country
where the offence was committed due to immunity provisions (such as under the Vienna
Convention on Diplomatic Relations), the South African courts shall have jurisdiction to try
that offence.⁴
The National Director of Public Prosecutions (NDPP) must issue written authorisation before
such prosecution may be instituted.⁵
The Prevention and Combating of Torture of Persons Act 13 of 2013 provides for
extraterritorial jurisdiction where the accused is a South African citizen or resident, irrespective
of whether the offence constitutes an offence in the foreign country.⁶
The general principle that courts only exercise jurisdiction regarding offences committed on South
African territory is subject to exceptions.⁷ The crimes alleged against X constitute such exceptions,
as they involve serious international crimes where South African courts have assumed jurisdiction
based on the nationality of the perpetrator.⁸
1 CPR3701 Study Guide, p. 20-21; Joubert (ed), Criminal Procedure Handbook (13th edn, Juta 2020) 43.
2 CPR3701 Study Guide, p. 43; Joubert (2020) 43.
3 CPR3701 Study Guide, p. 45; Joubert (2020) 45-46.
4 CPR3701 Study Guide, p. 44; Joubert (2020) 44.
5 CPR3701 Study Guide, p. 44; Joubert (2020) 44.
6 Joubert (2020) 45.
7 CPR3701 Study Guide, p. 42-44; Joubert (2020) 42-46.
8 CPR3701 Study Guide, p. 43-44; Joubert (2020) 43-44.
1. Discuss whether X may be charged by a South African court.
(a) Whether the Alleged Offences Fall Under South African Jurisdiction
The alleged offences committed by X in Zamunda—mercenary activities and the execution of over
200 victims—may be adjudicated by a South African court under the principle of extraterritorial
jurisdiction as provided for by specific statutory provisions.¹
The key statutory basis for jurisdiction is found in the Implementation of the Rome Statute of the
International Criminal Court Act 27 of 2002. Section 4(3) of this Act provides that any person
committing offences such as genocide, war crimes, and crimes against humanity is deemed to have
committed the offence in the Republic if they are a South African citizen or permanent resident.² X,
being a former South African soldier, falls squarely within this category.
Additionally, the mass execution of over 200 men, women, and children constitutes crimes of
genocide and crimes against humanity as contemplated in the Rome Statute, which South Africa has
incorporated into domestic law. The Protection of Constitutional Democracy against Terrorist and
Related Activities Act 33 of 2004 also grants South African courts extraterritorial jurisdiction where
the offender is a South African citizen or resident.³
(b) The Authority Conferring Jurisdiction
The authority conferring jurisdiction on South African courts is derived from the following:
Section 110A of the Criminal Procedure Act 51 of 1977 provides that if a South African citizen
commits an offence outside the Republic and cannot be prosecuted by the courts of the country
where the offence was committed due to immunity provisions (such as under the Vienna
Convention on Diplomatic Relations), the South African courts shall have jurisdiction to try
that offence.⁴
The National Director of Public Prosecutions (NDPP) must issue written authorisation before
such prosecution may be instituted.⁵
The Prevention and Combating of Torture of Persons Act 13 of 2013 provides for
extraterritorial jurisdiction where the accused is a South African citizen or resident, irrespective
of whether the offence constitutes an offence in the foreign country.⁶
The general principle that courts only exercise jurisdiction regarding offences committed on South
African territory is subject to exceptions.⁷ The crimes alleged against X constitute such exceptions,
as they involve serious international crimes where South African courts have assumed jurisdiction
based on the nationality of the perpetrator.⁸
1 CPR3701 Study Guide, p. 20-21; Joubert (ed), Criminal Procedure Handbook (13th edn, Juta 2020) 43.
2 CPR3701 Study Guide, p. 43; Joubert (2020) 43.
3 CPR3701 Study Guide, p. 45; Joubert (2020) 45-46.
4 CPR3701 Study Guide, p. 44; Joubert (2020) 44.
5 CPR3701 Study Guide, p. 44; Joubert (2020) 44.
6 Joubert (2020) 45.
7 CPR3701 Study Guide, p. 42-44; Joubert (2020) 42-46.
8 CPR3701 Study Guide, p. 43-44; Joubert (2020) 43-44.
