The tortuous battle to bring apartheid perpetrators of crimes against humanity to book took a step forward on Friday when judge Ratha Mokgoatlheng heard argument in the South Gauteng high court about whether the SAPS should pay reasonable legal costs for those of former police operatives.
At stake is a potential two-year delay in the trial of former Security Branch (SB) explosives expert Christian Siebert Rorich and former askari turned guerrilla Thlomedi Ephraim Mfalapitsa. Three other security police officers involved in the matter have died.
The upcoming trial will determine who was responsible for an explosion in a deserted mine pump house near Kagiso in 1982 that killed three young men, Eustice “Bimbo” Madikela, Ntshingo Mataboge (Matubane) and Fanyana Nhlapo, and seriously injured Zandisile Musi.
The four were members of anti-apartheid organisation the Congress of South African Students (Cosas) and became known as the Cosas 4.
Despite SB officers Carel Coetzee, Willem Frederick Schoon, Abraham Grobbelaar, Rorich and Mfalapitsa being denied amnesty by the Truth and Reconciliation Commission (TRC) and their case being referred to the National Prosecuting Authority (NPA) for further investigation and prosecution, nothing was done. The TRC referred to the case as a crime “so abhorrent and perverted that it cannot be allowed to be swept under the carpet”.
The Cosas 4 case was one of nearly 400 apartheid-era cases suppressed by political interference at the highest level of government. It was only in August 2021 that the NPA finally charged Rorich and Mfalapitsa with murder and kidnapping. In November crimes against humanity were added to the indictment, the first time anyone has been charged with the Crime Against Humanity of Apartheid.
Section 173 enables the court to invoke its inherent powers to safeguard the interests of justice. In this case it would involve judge Mokgoatlheng making an order compelling the police to pay Rorich’s legal costs to prevent a further delay in the trial that would prejudice the families of the victims and bring the justice system into disrepute.
The trial was delayed when Rorich’s application to the SAPS to pay his legal costs was refused in February, forcing him to consider instituting a civil action to review the decision.
This legal step would delay the trial by at least two years, so lawyers for the families of the slain men asked the court to consider exercising powers in terms of Section 173 of the constitution to avoid a possible miscarriage of justice.
Section 173 enables the court to invoke its inherent powers to safeguard the interests of justice. In this case it would involve judge Mokgoatlheng making an order compelling the police to pay Rorich’s legal costs to prevent a further delay in the trial that would prejudice the families of the victims and bring the justice system into disrepute.
The judge called on the parties and the SAPS to appear in court on Friday morning to argue this question. Advocates pitted against each other were Dawie Joubert (for the SAPS) and Thai Scott (for the families).
Joubert argued that the SAPS was not liable as Rorich had committed the crimes “outside of his duties as a police officer”. He said the SAPS’s refusal was in the “public interest” and at the discretion of SAPS administration and that it would be a “very brave step” for the court to invoke Section 173 and order the SAPS to pay Rorich’s costs.
Joubert, who admitted he had only been briefed late the day before, said the court had “no information” on Rorich’s application to the SAPS, nor the deliberations and decisions made by the service.
This seemed to irritate judge Mokgoatlheng, a former star soccer for Pirates and Chiefs, who dribbled through Joubert’s arguments, saying the court did have a lot of information and that he had spent two years on the Rorich matter, something confirmed in court by Rorich’s attorney, adv Kobus Muller, who added that Rorich intended pleading not guilty.
Rebutting Joubert’s arguments, Scott said: “The state can’t play possum with fundamental rights” as a 2018 ruling by judge Cynthia Pretorius found against the SAPS in a similar murder case, that of Nokuthula Simelane, another TRC case in which SB members were charged. The SAPS did not appeal that judgment and was therefore bound by it.
Emily Gammon, representing the Nhlapo and Madikela families, said their quest for justice has continued for 40 years and further delays would 'continue to impact on their fundamental rights of dignity and access to justice'.
Scott quoted that judgment, which found kidnappings and extrajudicial killings carried out by SB members were authorised and part of state-sanctioned policy, and executed by officers in the course and scope of their employment by the SAP.
It also found the state failed the deceased and family “abysmally” due to decades of delay, and that the refusal of the SAPS to pay legal costs for the accused delayed the trial and compounded the suffering of the family, a grave injustice.
Complex legal argument followed regarding whether Section 173 powers could be invoked. This is a point of law. While Joubert accused the court of abandoning all processes around review and argued that using Section 173 to order the police to pay up would be “a very radical decision” that would “make a quantum leap to ignore in total all administrative procedures”. He warned it would have “grave consequences in law” and said if such an order were made, the SAPS would appeal.
The NPA had nothing to add, clearly wanting to get on with the trial.
Scott reiterated that the courts confirmed they have an “inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice” and to ensure the rights of the accused and the families are upheld, and that the court was entitled to use its powers in this case.
Emily Gammon, representing the Nhlapo and Madikela families, said their quest for justice has continued for 40 years and further delays would “continue to impact on their fundamental rights of dignity and access to justice”.
Judgment will be delivered on April 26.
David Forbes is a documentary filmmaker, writer, activist and social commentator who made the award-winning film ‘The Cradock Four’ in 2010.
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