A decision by the High Court in Johannesburg this week may have significant implications for the prosecution of apartheid crimes.
Umkhonto weSizwe courier Nokuthula Simelane was abducted from the basement parking lot of the Carlton Centre 35 years ago by members of the Soweto intelligence unit of the security branch, never to be heard from or seen again by her family.
During an investigation by the Truth and Reconciliation Commission three members of the former South African Police - Willem Coetzee, Anton Pretorius and Frederick Mong - applied for amnesty for their role in Simelane's abduction and torture.
They all claimed they had been acting on orders to kopdraai Simelane - turn her to become an agent of the security branch.According to the evidence given by the three at the TRC, they dropped Simelane at the Swaziland border after three weeks of torture which included punching, kicking, suffocation and electric shocks. They said Simelane had cracked under torture, had agreed to work for them and that after being dropped off at the border, she was never seen or heard from again.
The TRC concluded that the three had lied to it about the severity and duration of Simelane's torture, but they were granted amnesty for assault and torture.
Since that decision in 2001 the family, led by Simelane's sister Thembi Nkadimeng (the mayor of Polokwane), have spent significant time and effort to get the NPA to bring murder charges against the three officers.
In February 2016 it seemed the family's search for justice would finally bear fruit and offer hope for other families seeking answers to what happened to their loved ones during the apartheid era.
However, the trial of the three security branch members was delayed when the South African Police Service refused to pay their legal costs, forcing Nkadimeng to join her sister's alleged murderers as an applicant in their "trial within a trial" to appeal the police decision.
The police argued among other things that the accused "had exceeded their powers of duty [and] that it would be against state and public interest to grant legal assistance". The SAPS further argued that because Coetzee and Pretorius had left the police in 1997 "it would be difficult to recover [their] debt". Mong, who was a junior member of the unit in 1983, is still employed by the SAPS.In her judgment on Tuesday, Judge Cynthia Pretorius overruled the SAPS. Importantly for future related cases, Pretorius said the SAPS had incorrectly applied legislation drawn up for the reconfiguration of the post-apartheid police to members who served during apartheid.
She found "that all three applicants were members of the SAP and as such qualify for legal assistance". She also found that the frequently offered argument that accused security branch members "had exceeded their powers of duty" did not hold as a reason for refusing legal assistance.
Pretorius said: "It is clear that during 1983, at the height of the resistance of the freedom fighters in the Republic of South Africa, the police used all and any methods to safeguard the apartheid regime ... it is not incumbent on me to find whether the applicants acted in a manner, at that particular time, exceeding their powers. It will be for the trial court to make such a determination."
Pretorius also noted: "It would be in the public interest if this trial commences as soon as possible to ensure justice not only to the applicants, but to [Nkadimeng] and her family as well, and society as a whole ... It has taken more than 30 years for Nokuthula's family to get to the stage where they may be granted truth, justice and closure. The severe continued delay to deal with this case can never be in the interest of justice."
It is shameful that the SAPS's bureaucratic wrangling has added another two years to the Simelane family's search for justice. Nokuthula's mother is now in her 70s and in ill health.
In the interests of justice the SAPS would do well not to appeal this judgment, and open the door to the many families still asking questions about what happened to their loved ones...