To: All Media
ATT: News Editors, Human Rights Reporters
For immediate Release
Friday, 13 January 2023
COSAS 4 Case: Judge dismisses Police Minister’s application for leave to appeal against legal costs judgment
Press Statement issued by the Foundation for Human Rights and Webber Wentzel
On 12 January 2023, the presiding Judge Mokgoatlheng in the murder case against Thlomedi Ephraim Mfalapitsa and Christiaan Siebert Rorich issued an order dismissing the Police Minister’s application for leave to appeal against a judgment issued on 4 May 2022 directing the SAPS to pay the reasonable legal fees of Rorich. The application for condonation of the late filing of the application for the notice of appeal was also dismissed.
Rorich and Mfalapitsa are on trial for murdering Eustice ‘Bimbo’ Madikela, Itumeleng Peter Matabane (also known as Ntshingo), Fanyana Nhlapo, and seriously injuring Zandisile Musi. The four were anti-apartheid student activists and members of the Congress of South African Students (COSAS), collectively known as the COSAS 4.
The full judgment with the reasons for the order will be delivered by the 31st of January 2023. The case was adjourned to 25 April 2023 for a pre-trial hearing. Once the pre-trial hearing has been concluded, the matter will be set down for trial.
The SAPS must now pay the legal costs of Rorich, as per the Court’s order of 4 May 2022. Rorich’s attorney is now in a position to execute against the order.
However, the State Attorney has indicated that he has instructions from the Minister of Police to petition the Supreme Court of Appeal, and if necessary, the Constitutional Court. This course of action, which will take years to complete, may result in the collapse of this trial given the advanced ages of the accused and will undermine the cause of justice.
For media enquiries contact:
Mx Kholekile Mnisi, Media and Communications Officer, FHR at email@example.com or 0656130977
The COSAS 4 were members of the Congress of South African Students (COSAS), an organisation affiliated with the then banned African National Congress (ANC). On 15 February 1982 Madikela, Matabane and Nhlapo were killed and Musi was seriously injured after two “askaris” (informers) Joe Mamasela and Thlomedi Ephraim Mfalapitsa lured them to an old pump house which had been rigged with explosives by Security Branch Officers. Their families were told that they had blown themselves up. The Security Branch covered up the murders and the actual cause of the deaths remained concealed until May 1999 when some of the perpetrators Carel Coetzee, Willem Frederick Schoon, Abraham Grobbelaar, Christiaan Siebert Rorich and Ephraim Mfalapitsa applied for amnesty before the Truth and Reconciliation Commission (TRC). Mamasela testified in camera (section 29 investigative hearing) before the TRC regarding his role in the COSAS 4 case, but he did not apply for amnesty. All amnesty applicants were denied amnesty and the case was referred to the NPA for further investigation and prosecution.
The legal cost battle
Mfalapitsa and Rorich were charged with kidnapping and murder in August 2021,and charges of crimes against humanity of murder and the crime against humanity of apartheid were added to the indictment in November 2021.There have been several delays to the trial, as a result of the refusal by the South African Police Services (SAPS) to pay the reasonable legal fees for Rorich. The SAPS has argued that the crimes which Rorich stands accused of having committed, kidnapping, murder and crime against humanity, do not fall within the scope of normal police duties.
On 17 January 2022, Judge Mokgoatlheng issued a court order directing the provincial head of the Gauteng Legal Division of the SAPS to process and finalise the application for state funded defence for Rorich on or before 26 January 2022, failing which he must appear in Court on the stipulated day to explain why the application has not been finalised and why he must not be held in contempt of Court.
The Judge subsequently heard legal argument on 25 March 2022 on whether he should invoke the inherent powers of the Court in the interest of justice, as provided for in section 173 of the Constitution to order the SAPS to pay reasonable legal fees for Rorich. The legal team for the COSAS 4 families argued that the SAPS are bound by the judgment in Willem Helm Johannes Coetzee & Others v Minister of Police & Others, Gauteng Division, Case No. 72747/2016, which set aside the decision of the SAPS not to fund the legal defence of Willem Coetzee, Anton Pretorius and Frederick Mong. The Court held in Coetzee that the SAPS had assumed the liabilities and obligations of the South African Police (SAP) as it was the latter’s successor in title.
The judgment on the legal costs question was delivered on 4 May 2022. The judge ordered the SAPS to pay the reasonable legal costs for Rorich and to notify him about the decision by 24 May 2022.Despite this judgment, the SAPS failed to pay the legal costs. Instead, the Minister of Police filed an application for leave to appeal against the judgment on the legal costs question and an application for condonation for the late filing of the application for leave to appeal; on 16 August 2022.
On 29 September 2022 Ms Maide Selebi, Eustace Madikela’s sister, filed an application to intervene in the main application for leave to appeal by the Minister of Police, as 4th respondent. Ms Selebi also opposed the Minister’s applications for leave to appeal and for condonation.
On 5 December 2022, the Foundation for Human Rights wrote an open letter to the Minister of Police on behalf of the COSAS 4 and Caiphus Nyoka families, urging him to change the approach of the SAPS towards the payment of legal fees for apartheid era accused police officers. The FHR has received no response from the Minister.
On 12 January 2023, the Judge issued a court order dismissing the Minister’s applications for leave to appeal and condonation for late filing of the application for leave to appeal.
To access the full record of papers in the COSAS 4 matter see: https://unfinishedtrc.co.za/future-cases/#COSAS-3-Zandisile-Musi
For more information contact:
For more information on the “Unfinished Business of the Truth and Reconciliation Commission” Programme that is run by the Foundation for Human Rights consult our website: https://unfinishedtrc.co.za .
Foundation for Human Rights
The Foundation for Human Rights is a non-profit human rights organization that works to protect and promote human rights in South Africa. The FHR was established in 1996 to address the historical legacy of apartheid, and to promote and advance transformation and human rights based on the new constitution. The FHR implements five main human rights programs: the Constitutional Awareness and Education Programme, the Gender Based Violence Programme, the Unfinished Business of the Truth and Reconciliation Commission Programme, the Vulnerable Groups Programme, and the Community-Advice Offices Programme. Over the last two decades, the FHR has played a major role in promoting the rights of victims of apartheid crimes through supporting the recommendations of the TRC, including justice and accountability for past crimes, reparations, and access to the TRC archives.
Webber Wentzel Pro-Bono Department
Webber Wentzel Pro-Bono Department headed by Ms Odette Geldenhuys, provides free legal services to marginalised and vulnerable individuals and groups. Attorneys from the Webber Wentzel Pro Bono Unit have acted as legal representatives in a number of post-TRC matters and have played an instrumental role in moving the cases forward. The post-TRC cases that have been supported by Webber Wentzel include the matters of Ahmed Timol, Dr Neil Aggett, Imam Haron, COSAS 4, Nokuthula Simelane and Caiphus Nyoka.