Apartheid-era criminal cases referred for criminal prosecution by the Truth and Reconciliation Commission (TRC) are slowly edging towards court as an NGO, the Foundation for Human Rights, keeps up the fight for justice.
Three of the 22 cases the foundation is working on — the murder, kidnapping and torture of Nokuthula Simelane, sister of justice minister Thembi Simelane; the Cosas Four attack; and the murder of student activist Caiphus Nyoka — are already before court.
The inquest into the Highgate Pub massacre in East London in 1993 has been scheduled for January, while the judicial inquiry into the deaths of the Cradock Four is set for June next year.
The foundation, which was created to address the legacies of apartheid, wants perpetrators to face the law. Its “unfinished business of the TRC” project focuses on criminal accountability for individuals who did not apply for or were not granted amnesty.
Project officer Mosa Leteane said the foundation worked with law enforcement and pro bono lawyers across South Africa to represent families.
In the Cosas Four case, now being heard in the Johannesburg high court, former Vlakplaas askari Thlomedi Mfalapitsa and ex-apartheid police officer Christiaan Rorich are being prosecuted for the 1982 plot in which three activists were killed and one severely wounded.
Both are charged with committing a crime against humanity, which, according to the charge sheet seen by the Sunday Times, is a crime “committed as part of a systematic attack or elimination of political opponents of the apartheid regime with knowledge of that attack”. They are alternatively charged with murder.
The UN’s 1973 Apartheid Convention declared apartheid a crime against humanity and said “inhuman acts resulting from the policies and practices of apartheid, as well as similar policies and practices of racial segregation and discrimination, are crimes violating the principles of international law”.
South Africa only acceded to the convention in June this year. Should the crime against humanity charges proceed and convictions follow, the court will be guided by sentencing guidelines for serious crimes such as murder and kidnapping, which carry jail terms that generally vary between five and 25 years.
While more than 100 countries have acceded to the UN law, no-one has been charged under it. As Mfalapitsa is the first accused in the case, he is the first person in the world to be charged with the crime of apartheid.
In his affidavit, signed in May this year, Mfalapitsa argued that the constitution prevented the state from bringing the crime against humanity charge, which he described as one of the “most grave crimes in terms of international law”.
The charge sheet also states that “section 232 of the constitution provides that customary international law is law in the republic, unless it is inconsistent with the constitution or an act of parliament”.
Asked why the National Prosecuting Authority had used this charge, NPA Gauteng spokesperson Phindi Mjonondwane said: "[Mfalapitsa and Rorich] are charged under the doctrine of common purpose, and therefore the actions of each can be attributed to [both] of them. Crimes against humanity apply to anyone; more shall be revealed during trial.”
The accused have challenged the charge sheet and argue that the state’s right to prosecute a crime that took place more than 40 years ago has lapsed.
Leteane said a ruling by the court allowing the use of the apartheid charge would help the foundation’s project and get “apartheid recognised as an international crime against humanity by South African courts”.
“Acts committed under apartheid-as-a-crime have never been charged before, and that's why this is so important,” she said.
“There is no prescribed domestic framework or sentencing. All crimes are dealt with in terms of the Inquest Act and Criminal Procedure Act.
“Second, recognising apartheid as a crime against humanity would widen jurisdiction ... [and] allow countries to use international and hybrid tribunals as a complementary or alternative forum.”
Leteane described the Cosas Four trial as a “significant shift in South Africa’s legal history in that future TRC cases can rely on the same charge”.
“South Africa will be the first country to prosecute apartheid as a crime against humanity in a domestic court.”
South Africa will be the first country to prosecute apartheid as a crime against humanity in a domestic court
— Mosa Leteane
Cosas members Eustice “Bimbo” Madikela, Peter “Ntshingo” Matabane and Fanyana Nhlapo died in an explosion while Zandisile Musi was severely injured. They were allegedly lured into a trap after asking Mfalapitsa, who they thought was loyal to the ANC, to help them leave the country for military training.
The youths went to an abandoned mine pump house near Krugersdorp, which had been rigged with explosives. It was later said they had “blown themselves up” while receiving illegal military training.
Leteane said in most cases, by the time the victims of apartheid crimes and their families brought a matter to the foundation, they had likely exhausted all avenues within the criminal justice system and required special intervention.
“Through years of litigation, we have observed that our criminal justice system is wholly unprepared to grasp the gravity and nature of these crimes. As former apartheid officials have aged, there will be no-one left to prosecute, in addition to the evidentiary challenges.”
Leteane said although the foundation had managed to get three cases before court, the delays were not over.
The Simelane case has been postponed to January as the high court in Pretoria is holding an inquiry into the mental state and fitness to stand trial of accused Willem Coetzee.
Simelane, who was in her 20s at the time, was abducted, allegedly tortured and murdered by Security Branch members in 1983 in Johannesburg.
On Thursday, the Pretoria high court, sitting in the Benoni magistrate’s court, postponed to December 2 the case arising from the 1987 murder of Nyoka after a lawyer for one of the accused, Pieter Stander, 61, withdrew without providing reasons.
Nyoka was a student activist in Daveyton and a member of the Congress of South African Students.
Former police officers Stander, Leon Louis van den Berg, 72, and Abram Engelbrecht, 60, are accused of murdering Nyoka after raiding his home. Last week a fourth accused, Johan Marais, 65, pleaded guilty to killing Nyoka.
Nyoka’s friend Crosby Marasela told the Sunday Times he was relieved that the matter was now finally in court.
“It was tough as I sometimes lost hope but now at least justice is being done and the perpetrators will face consequences.”
Marasela and Nyoka served on the SRC of Mabuya Secondary School in Daveyton. Nyoka was president while Marasela served as secretary.
He said Nyoka introduced him to student politics and that they cofounded the Daveyton Student Congress after the banning of Cosas in the mid-1980s.
“He did not deserve to die like that, he was found asleep and unarmed,” Marasela said.
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