Judge denies postponement of trial of former apartheid cops accused of activist's murder 37 years ago

The murder trial of three former apartheid police officers that was scheduled to start on Monday was rolled over to Tuesday by the Pretoria high court sitting in the Benoni magistrate's court. 

The three men, Leon van den Berg, Abram Engelbrecht and Pieter Stander are accused of the murder of an East Rand student activist, Caiphus Nyoka, more than 37 years ago. 

On Monday, Stander's lawyer brought an application for a postponement of the trial as the state had not furnished the defence team with a plea statement from Johan Marais, 65. 

Marais who was stationed at Unit 6 in Dunnottar in Ekurhuleni, pleaded guilty in the Pretoria high court last Tuesday to killing Nyoka in 1987. 

This is one of the cases that was referred to the National Prosecuting Authority (NPA) by the Truth and Reconciliation Commission. At the time of his murder, Nyoka was a student activist in Daveyton and a member of the Congress of South African Students.

He was also the South African Youth Congress organiser of the Transvaal Student Congress on the East Rand as well as president of the student representative council at Mabuya Secondary School.

The three accused also opposed the media application to film the court proceedings, citing fears of possible victimisation. 

After the state prosecutor advocate Esther Kabini successfully argued that the defence had failed to provide reasons for opposing the media application, judge Ismail Mahomed allowed the media to film the proceedings subject to certain conditions. 

The order stated, among other things, that the media is not allowed to broadcast Nyoka's family's testimony and that pictures of the accused may be taken only while they are outside court and not during the proceedings. 

Kabini told the court the state has not yet received Marais' statement and did not indicate if he will be called to testify as one of the witnesses. The court heard that Marais was willing to give the statement, subject to some of the preconditions that the state was not willing to accept. 

“It is in that context that we proceed with the matter. If he [Marais] gives that statement, we will discuss the matter with our colleagues,” said Kabini, asking the court to allow the trial to continue. 

“We want to give the family closure,” she said.

In his judgment on the application for a postponement, Mahomed said he thought about granting the state time to see if Marais would change his mind. 

“He might, he might not, I don't know. If he changes his mind in the next appearance the parties will know if he is going to be a state witness or if he will furnish his statement.

“In the intervening period, the parties can speak to Marais, speak to him and maybe convince him, and who knows? Who knows? He might change his mind and the statement will then be handed to the defence,” he said.

Mahomed said the other alternative was to take Kabini's words at face value that the state was ready to proceed and then “when this issue raises its ugly head during the trial we will revisit the issue”.

“I am looking at alternatives to show that I am applying my mind. The more I think of this matter, the more Ms Kabini's words reverberate in my mind. We don't need Mr Marais. We have a case whether he testifies or not,” he said. 

The court heard the families have waited for a considerable period of time and the matter has been set down for three weeks. The defence lawyers for Van den Berg and Engelbrecht also indicated they were ready to proceed. 

“I think the most sensible thing in this matter is that a postponement is refused in this matter. The order of this court is that we proceed,” said Mahomed. 

NPA spokesperson Lumka Mahanjana said they welcomed the ruling by the court to allow the state to proceed with the matter.

“As you are aware accused number three in the matter, Stander, asked for a postponement so that they can get the statement that will be furnished by Johan Marais to the state,” she said. 

She said they hoped that in the next three weeks, they would not have any hindrances and the trial would continue as planned. 

“There was a new indictment that the accused were furnished with. Initially, they were facing three charges which were defeating the administration of justice, a charge of murder and conspiracy to commit murder. That indictment has now been amended and they are now facing a charge of murder,” she added. 

Nyoka's family lawyer and spokesperson Jos Venter from Webber Wentzel law firm, said they welcomed the decision not to postpone the case.

“In his ruling, the judge has recognised that this is a matter that has been going on for 37 years. That's fantastic we have judiciary recognition of the delays and the prejudice that the families of the apartheid crimes have suffered.

“The family is excited for the trial to proceed. Last week Tuesday when Mr Marais pleaded guilty in the Pretoria high court, it gave us a sense of truth and the events that transpired,” he said. 

“That was the first time in 37 years that the family knew what happened when Caiphus was killed. The family wants truth and justice and a conviction of murder for his death” he said. 

The trial is set to start in the high court on Tuesday when the state will call its first witness. 

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