Judge lashes minister Cele, police and state attorney for Cosas 4 delays

Police minister Bheki Cele was on Tuesday accused of not complying with a court order, with the judge remarking that in his 25 years on the bench, and 50 years in legal practice, he had “never been treated so contemptuously”.

More on that later. Tuesday October 11 was the day that unemployed widow Maide Christina Selebi took on the minister of police, the state, a former security policeman who murdered her brother, and the askari (turned MK guerrilla) who betrayed him to the police.

Selebi was applying to intervene in a pretrial matter between the former security branch explosives expert Christian Siebert Rorich and the askari, Tlhomedi Ephraim Mfalapitsa, and the police, who have refused to pay Rorich’s legal fees for his murder and crimes against humanity trial.

Judgment in this pretrial matter, which saw “learnt friends” cross swords as advocate  Dawie Joubert SC defended the minister and the SAPS, while advocate Howard Varney appeared for the families, will be delivered in the South Gauteng high court, by justice J Mokgoatlheng, on November 28 2022.

The two accused sat quietly and unobtrusively in a corner of the dock, hoping, perhaps, they would not be seen. I took photos of them, both were clearly uneasy about it.

The kidnapping and murder trial proper, which the SAPS have successfully delayed now for a year, concerns the murder in February 1982 of four young Kagiso activists who would become known as the Cosas 4. Selebi’s brother, Eustace “Bimbo” Madikela, was one of them. The security police plotted to blow up the four (one of whom was still at school), though the commander of the operation, Capt Jan Carel Coetzee, admitted at the TRC that he knew nothing about the four, and that they were just “four kids with an idea”. Rorich’s explosives detonated a trap set by the askari in an abandoned mine pump house near Krugersdorp.

We are not asking for criminal sanctions – yet – but that a declaration of the minister being in contempt of court might serve as a warning, and show it will not be tolerated and may be met with stiffer sanctions (in future).

—  Adv Howard Varney

The 67-page notice of motion and supporting documents clearly outline the abject failures of the SAPS and its senior legal personnel, which point to either the deliberate obstruction of justice or serial incompetence on an industrial scale.

The minister of police has applied for leave to appeal for the May 4 court order which instructed SAPS to pay Rorich’s legal fees. The problem is that the application is “out of time” as court rules give clear deadlines for filing such applications, in this case May 25.

The minister also applied for condonation of the late filing, but this was also a problem as the SAPS representatives had missed so many court appearances that they could now face a contempt of court ruling and punitive costs.

Advocate Joubert kicked off proceedings with minister Cele’s notice of application to appeal the court order of May 4, in which judge Mokgoathleng ordered the SAPS to pay Rorich’s legal fees. But Joubert made a basic error in saying that the judgment had been made on June 9 (when it was signed) and not when it was given (May 4).

He made another when he claimed that Rorich “elected not to apply for legal aid”. In fact, Rorich is not eligible for legal aid, due to the means test applied.

A third mistake was that SAPS claimed he resigned in 1987, when he resigned in 1997.

Joubert then argued that the court had erred in setting aside the administrative decision by the SAPS — without taking into account that a petty administrative niggle could derail the trial and provoke a serious miscarriage of justice and let off people charged with the very serious crimes of kidnapping, murder and attempted murder.

Joubert laid bare another error in his argument when he claimed that the charges did not fall within the “normal execution of police duties by a police officer”. What no-one seemed to pick up was that Joubert used the duties of a police officer as described in the postapartheid SA Police Act 68 of 1995, when the crimes had been committed in 1982.

This point aroused lively debate between the judge and Joubert, with judge Mokgoathleng saying: “We know this history. We know that the police killed people illegally.” He quoted the murders of the Mxenge lawyers, the assassination of Ruth First by parcel bomb, and others as examples of how this was the security branch’s day-to-day business.

In a meticulously crafted application and rebuttal, lawyers for Selebi argued that the attempt to appeal is just another Stalingrad tactic by the SAPS to prevent the prosecution of apartheid-era criminals who were denied amnesty by the Truth and Reconciliation Commission.

The accused, both in their “twilight years”, are just two of the original known six security branch personnel who were involved in the murders. Like so many other apartheid-era crimes, the other perpetrators have all died, evading justice and preventing closure for the traumatised families of the victims. Selebi is the only survivor of the Madikela family.

Her application also alleges that the minister and the police are in contempt of the May 4 2022 court order, and seeks to avoid any delays that may be occasioned by an appeal. She says the appeal application was lodged without consulting them, and her family was not cited in the application for condonation, though on August 17 2022 the legal representatives for the minister of police had accepted that the families had a direct and substantial interest in the matter, and had agreed to the joinder of the families as respondents. The accused are not opposing the SAPS either.

Selebi says her intervention is to “prevent a grave miscarriage of justice from unfolding”. She also pointed out that the “impact of the long delay has been compounded by the political interference which saw the suppression of the Cosas 4 case and hundreds of other apartheid-era cases”, which had drawn the “ire and censure of the full bench of the high court” as well as the Supreme Court of Appeal.

She summarised her rights to intervene as being in the interests of justice, her constitutional right to have her family’s  dignity respected, the rule of law, that constitutional obligations must be performed without delay, SA’s international law obligations and the special responsibility to pursue cases arising from the TRC process.

Selebi said further delays “may permit the accused to escape justice” which would “compound the suffering of the families”, particularly in light of the state policy of suppressing apartheid-era cases post TRC, and unjustly reward the perpetrators.

“During apartheid, the perpetrators of state-sponsored crime enjoyed almost total impunity. They were shielded from justice. The failure of the new South African state to timeously finalise such cases is deeply offensive to the rule of law and our new constitutional order,” her papers stated.

“The families accepted the necessary and harsh compromises that had to be made to cross the historic bridge from apartheid to democracy. They did so on the basis that there would be a genuine and expeditious follow-up of those offenders who spurned the process and those denied amnesty. This part of SA’s historic pledge with victims has not been kept.”

Advocate Varney says: “It’s extraordinary that minister Cele can put his name to a case that could result in a miscarriage of justice. The police are now the biggest obstruction to the process of justice for the TRC cases.”

Varney went through the unexplained 10-week delay by SAPS and state attorney officials. It’s mind-boggling. Judge Motkgoathleng replied: “How is it that two experienced lawyers in Johannesburg can’t communicate? For 10 weeks!” and throws his hands up in disbelief.

Joubert: “It is what it is, M’Lord.”

Joubert argued against the application by judge Mokgoathleng in his May 4 court order of a previous court order in another post-TRC trial called the “Coetzee judgment”. In that matter, an extremely similar case (the abduction and murder of an activist, in this case Nokuthula Simelane in 1983) the SAPS also attempted to avoid paying for the defence of a former security policeman and eventually was forced to pay up. The SAPS never appealed that judgment, which means that the police are bound by it today, but this is disputed by Joubert.

Judge: “I'm not reviewing the decision, my decision is bound by the Coetzee judgment. This court conducted an inquiry. I gave everyone an opportunity to argue their points before me, but the minister was not represented. We called the state three times, we bent over backwards for the state (but they didn't come here).”

Varney: “M’Lord, 40 years have elapsed since the crime took place. Three perpetrators have escaped justice: they have died. The accused have appeared 19 times. The police who were involved in the murders of Timol, Aggett and Hafajee were supported by the SAPS.  When (former minister Adriaan) Vlok and (former police commissioner) Johan van der Merwe were charged with the attempted murder of the Rev Frank Chikane, their defence was paid for by the police.

“No excuse has ever been offered by the SAPS or the state attorney for their absences from court, and neither of them made any attempt to inquire as to what happened in court. That kind of conduct is not only cavalier and reckless, but also disrespectful.”

It was at this point that the judge made his remarks about never having been treated with such contempt in his entire legal career.

Varney presses on: “They (SAPS and the state attorney) have shown they are above the law. They have defied the judge and appear to get away with it. We suggest such contemptuous conduct should not go unanswered. We are not asking for criminal sanctions — yet — but that a declaration of the minister being in contempt of court might serve as a warning, and show it will not be tolerated and may be met with stiffer sanctions (in future).”

Varney: “What (GP head: legal services, state attorney advocate Jakobus) Meier would have us believe is that internal (administrative) problems delayed things for 10 weeks. It’s just a blame game.” 

The key players in the administrative snafu are named in court papers as: Col Desre Grobler, from SAPS legal services; Reggie Pooe, senior assistant from the state attorney’s office in Johannesburg; and Maj-Gen C Hendricks (provincial head, legal services, Gauteng).

Joubert has his head in his hands. 

Judge: “It took 10 weeks to file an application. It should take an hour.”

Varney: “The criminal trial has been delayed a year. It appears to be of no consequence to them. It is wilful, indifferent, gross negligence on behalf of the SAPS. A flagrant breach of the rules, and no explanation (let alone an acceptable explanation), it is just contemptuous.

“This case is so important we must overlook these lapses. The minister has said this case was important to him, but not why. They have taken decisions that have led to the abandonment of several hundred murder cases.”

Joubert yawns, several times, studies the ceiling.

Varney: “All postponements in 2022 have been caused by the failure of SAPS to deal with the costs issue. The administration of justice has been deeply impacted. They can’t show any merit in their argument. They just want the court to take their say-so.”

“At some point, we have to draw a line in the sand,” said Varney.

Judge: “Any case that takes 40 years is exceptional, and now we must indulge in niceties like a review which could take five years? What kind of official comes to this court knowing the decision may delay the case for years. They want justice to ‘step aside’ while justice is delayed.”

The court adjourned for judge Mokgoathleng to write his judgment which will be heard at a later date, but before December.

The criminal trial of apartheid murderers inches closer.