How can justice be served when the state attorney obstructs it and police disobey a court order? Will we ever get answers for apartheid crimes? Will those who killed activists, children in this case, ever pay the price?
These questions are being asked more often by South Africans, who see the culture of impunity overwhelming our institutions as powerfully as the ANC swept to power in 1994, who witness the waves of sexual assault and crime now sweeping all before them.
The latest group to doubt the integrity and motives of the SAPS senior management comprises the Foundation for Human Rights, Webber Wentzel attorneys and three family members of murdered anti-apartheid activists Maide and Thabiso Selebi, and Alegria Nyoka.
After a further court delay at the end of July, the group issued a statement accusing the police of:
- refusing to pay the legal fees of apartheid-era cops charged with murder;
- obstructing justice by delaying criminal trials through their refusal;
- defying an earlier court judgment ruling that SAPS was obliged to pay such fees;
- ignoring a second court order directing the police to pay such fees.
On Wednesday, there was a further delay of more than three weeks when judge J Mokgoatlheng was not in court. Adv Tebogo Kgole (families), Dawie Joubert (SAPS), attorney Kobus Muller (for the accused) and the state attorney agreed to postpone the hearing to October 11 for argument as to why the state should or should not pay the legal costs of the accused former policemen.
The group says the police inactions could delay two criminal trials for years, during which time, elderly and sick perpetrators, family members and witnesses are likely to die. This has happened many times before.
The two cases in question are the 1987 murder of schoolboy activist Caiphus Nyoka in his bed at 2.30am and the 1982 murder of three members of the schoolboy group who came to be known later as the Cosas 4. All the killings were committed by security policemen.
On August 24 1987, Johan Marais and three other cops smashed in the steel door to Nyoka’s room and shot him 12 times. A member of the Congress of SA Students (Cosas) and SRC chair at Mabuya High School in Daveyton, Nyoka was a “person who stood for the truth”, according to his classmates. His crime had been to organise resistance against apartheid and education for pupils who were boycotting classes (Cosas’ slogan was “Each One, Teach One”).
Three other boys sleeping in the same room witnessed the murder. Marais confessed to the murder in late 2019, but it took the National Prosecuting Authority until February 2022 to issue a murder indictment.
The group says that the police inactions could delay two current criminal trials for years, during which time, elderly and sick perpetrators, family members and witnesses are likely to die. This has happened many times before.
Two of these former cops asked SAPS in February this year to pay their legal fees. No further details of the accused are known at this stage. Nearly six months later, SAPS is yet to make a decision. The group fears SAPS will refuse legal support as they did previously in the Cosas 4 case.
In that matter, four Cosas students, caught up in the romance of the struggle, sought to leave the country for training in 1982. A turnt ANC guerrilla ( “askari”), Tlhomedi Ephraim Mfalapitsa, lured the boys to a deserted mine pump house on the West Rand with the promise of arms training.
Security police explosives expert Christiaan Siebert Rorich had rigged the building earlier. The boys were locked inside and the explosives detonated. Miraculously, one of the four survived the blast. Eustice “Bimbo” Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi (who survived with serious injuries) became known as the Cosas 4.
Mfalapitsa and Rorich were charged with kidnapping and murder in August 2021. In November 2021, historic charges of crimes against humanity were added.
On January 18 2022, the South Gauteng high court ordered Maj-Gen Colin Hendricks, the head of the Gauteng SAPS legal division, to finalise Rorich’s application by January 26 2022, failing which he must appear in court to explain why he should not be held in contempt. Hendricks did appear in court on January 26, but on February 15 2022, Rorich’s attorneys told the court SAPS had refused to pay the legal costs and they intended to review the police decision.
The case was delayed again on July 19 2022, when this time the state attorney representing the SAPS failed to appear in court — a second violation of the earlier order made on May 4 2022 by judge Mokgoatlheng that the SAPS pay Rorich’s reasonable legal costs to avoid a “grave miscarriage of justice”.
The group condemned SAPS as being “in brazen defiance” of the judge’s order, and said the “conduct of the state attorney and SAPS is contemptuous of the court process” and delaying the start of the trial. SAPS has now indicated it intends appealing the court order, but it is out of time and no application for leave to appeal has been filed.
The SAPS’ refusal to pay Rorich’s fees was obviously made at a very senior level — and flies in the face of a legal precedent set by the courts in a third matter, the pretrial proceedings of four former policemen accused of murdering ANC courier Nokuthula Simelane in 1983, after she “disappeared” from police custody after being betrayed and detained at the Carlton Centre.
Former warrant officer Willem Coetzee, sergeants Anton Pretorius, Frederick Mong and Msebenzi Timothy Radebe were charged in 2016. SAPS also refused to pay their legal fees, forcing Simelane’s sister, Thembisile Nkadimeng (then mayor of Polokwane), to join the accused in a legal battle to force the SAPS to pay the fees and speed up the trial process.
The police elected not to appeal the Coetzee judgment and so are still bound by it today. But during the six-year delay caused mainly by the police, two of the Cosas 4 accused, Mong and Radebe, died, thereby evading justice.
The impasse was finally resolved when judge J Pretorius in the North Gauteng high court ruled that the SAPS were legally responsible for such costs (the so-called Coetzee judgment).
The police elected not to appeal the Coetzee judgment and so are still bound by it today. But during the six-year delay caused mainly by the police, two of the Cosas 4 accused, Mong and Radebe, died, thereby evading justice.
The failure of the police and the state attorney to appear in court on July 19 2022, resulted in the judge making an order that they appear on Wednesday to explain why the state attorney had not met the defence team to discuss a fee structure for Rorich and why the state attorney did not seek leave to appeal earlier.
The trial date was to have been set on Wednesday, but it is unclear how the trial can proceed without a fee arrangement or why Rorich’s lawyers have not invoked Section 3 of the State Liability Act 20 of 1957 to execute against SAPS property to satisfy the court order of May 4 2022.
“The conduct of the SAPS in refusing to comply with the court’s order and the failure of the state attorney to appear in court on July 19 2022 may amount to contempt of court. It certainly amounts to an abuse of the court process and has seriously undermined the cause of justice,” the group’s statement said.
The families, lawyers and the foundation believe any further delays in either the Cosas 4 or the Caiphus Nyoka case would be an injustice and that SAPS should respect the Coetzee judgment and pay the legal fees of all the accused.
On June 23 2022, in a provisional hearing at the Benoni magistrate’s court, the Nyoka matter was postponed to a “final provisional date” pending, inter alia, a review of the decision by the SAPS not to fund the legal fees of accused two and three. The matter will proceed on August 2 2022 in the Benoni magistrate’s court.
The Foundation for Human Rights, the family members of Nyoka, and Maide and Thabiso Selebi made a call on the SAPS to expeditiously pay the reasonable legal costs of apartheid-era police officers now facing charges for crimes committed on police operations.
The SAPS is legally obliged to pay such costs in terms of the Coetzee judgment, as well as the court order of May 4 2022 issued by judge J Mokgoatlheng in the Cosas 4 case. The refusal by the SAPS to pay the legal costs of former police officers has become one of the biggest obstacles delaying the prosecution of apartheid-era criminal perpetrators.
It is unclear why the SAPS is resisting when so few cases are at stake.
Given the political suppression of 300 to 400 apartheid-era cases referred by the Truth and Reconciliation Commission to the NPA in 1998, most cannot be revived as suspects and witnesses have died. It is likely only a handful of cases will make it to court.
The role of the state in creating delays appears to be a deliberate strategy used repeatedly to help many apartheid perpetrators evade justice.
Apartheid sympathisers within the SAPS and the justice cluster — as well as ANC senior leaders who did not wish to prosecute anyone for apartheid-era crimes because they themselves had been refused amnesty by the TRC — all contributed to numerous bureaucratic obstructions, deliberate delays and lies, destruction and “loss” of records, and any other means to stop the prosecutions from proceeding.
Human rights lawyers for the families had to do the work that the police and justice departments should have been doing. For the families, seeking justice became a long painful quest that left them feeling that “their” new government had betrayed them.
It was only in 2015 that an affidavit filed in the North Gauteng high court by former national director of public prosecutions Adv Vusi Pikoli, in support of the Simelane matter, revealed his work as NDPP had been improperly and illegally interfered with. Those accused in the affidavit included then minister of justice Bridget Mabandla, former national police commissioner Jackie Selebi (later jailed) and a number of cabinet ministers, none of whom ever faced any consequences for their lawbreaking behaviour. Pikoli, who had been fired by then president Thabo Mbeki, was later exonerated by the Ginwala inquiry.
Eyebrows have been raised in the courts: judges have expressed their displeasure and condemned the failures and behaviour of both the executive (for illegal interference) and the NPA (for not standing up to political interference).
If any of the accused died, or became medically unfit to stand trial, while the litigation unfolded, it would amount to an entirely avoidable and irreversible injustice, for which the SAPS would be entirely responsible, the group said.
Not only that, the Cosas 4 and Nyoka families have endured decades of pain waiting for closure. Allowing the criminal proceedings to be delayed would add deep insult to the considerable injuries already suffered, they said (next Wednesday will be 35 years since Caiphus Nyoka was murdered, and still no-one has been brought to justice).
The ANC’s silent “policy” and the government’s behind-the-scenes suppression of the post-TRC prosecutions has meant the perpetrators of apartheid’s crimes against humanity and human rights violations go unpunished. Thousands are affected.
Beyond the pain and trauma is also impunity, that justice does not have to be served if it is not in your own interests. Impunity begins with the (mistaken) belief that there is no need for consequences.
Democratic SA’s culture of impunity began in earnest when the TRC ended in October 1998. It is the reason state capture occurred and why corruption is so endemic.
These trials must be delayed no longer. The country’s future will depend in part on how they are handled. The police and the NPA now have huge responsibilities to fulfil.
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