Eustice ‘Bimbo’ Madikela, Ntshingo Matabane, Fanyana Nhlapo and Zandisile Musi (collectively known as the COSAS 4) were members of the Congress of South African Students (COSAS), an organisation associated with the then banned African National Congress (ANC).
Tlhomedi Ephraim Mfalapitsa was a former member of Umkhonto weSizwe (MK), the military branch of the ANC. However, he later became a Security Branch officer in the South African Police (SAP), turning ‘askari’. Before his defection from the ANC, Mfalapitsa had enjoyed a close relationship with Musi’s brothers, who had served with him in MK, while the men were in exile. After Mfalapitsa joined the SAP, he established contact with Musi. The latter explored the possibility of leaving the country with Mfalapitsa, whom he erroneously believed to be a member of MK.
Mfalapitsa reported their discussions to his superiors, who ordered him to lure Musi and the others to a pump house at a mine near Krugersdorp, under the guise of giving them military training. On or about 15 February 1982, Madikela, Matabane, and Nhlapo were killed, and Musi was seriously injured in an explosion. The incident occurred under circumstances aimed at creating the false impression that the men had accidentally blown themselves up while undergoing military training.
The murders were covered up by the Security Branch and remained concealed until certain of the perpetrators applied for amnesty before the Truth and Reconciliation Commission (TRC).
The families were told by the police that the COSAS 4 had blown themselves up.
The actual cause of their deaths was revealed only at the TRC in May 1999 when former Security Branch officers Carel Coetzee, Willem Frederick Schoon, Abraham Grobbelaar, Christiaan Siebert Rorich and the Askari, Mfalapitsa applied for amnesty. They were denied amnesty and the case was referred to the National Prosecuting Authority (NPA) for further investigation and prosecution. The COSAS 4 case was one of the approximately 400 apartheid era cases suppressed through political interference.
On 2 September 2020, the Pro-Bono Department of Webber Wentzel filed an application on behalf of Maide Selebi (sister of Eustice Madikele) and Patience Nhlapo (cousin of Fanyana Nhlapo), which sought an order from the Krugersdorp Magistrate Court requiring the Mogale City Local Municipality, with the support of the SAPS and the NPA’s Missing Persons Task Unit, to exhume the bodies of the deceased.
After decades of delay, former Askari, Tlhomedi Ephraim Mfalapitsa, and Security Branch explosives expert, Christiaan Sebert Rorich, were charged with kidnapping and murder in August 2021. In November 2021, charges of crimes against humanity of murder and the crime against humanity of Apartheid were added to the indictment.
Since the indictment was issued the trial has been delayed by the refusal of SAPS to pay the legal defence fees of Rorich. Rorich’s legal team indicated that they will bring an application to review the refusal of the SAPS. Such legal proceedings could delay the criminal trial for several years, during which time the accused, who are elderly, may pass away.
On 25 March 2022, the presiding officer in the COSAS 4 case, Judge Mokgoatlheng, heard legal argument on the question of whether to invoke his inherent powers to safeguard the interests of justice, in terms of section 173 of the Constitution, to order the SAPS to pay the reasonable legal costs of the second accused, Christiaan Sebert Rorich. In the arguments, the legal representatives of the Cosas Four families pointed out to the SAPS, as well as to the Court, that the police 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.
On the 4 May 2022, the Judge delivered the judgment on the legal costs question in the COSAS 4 matter and ordered the SAPS to pay the reasonable costs of the accused in the matter and to notify him about the decision by 24 May 2022. However, SAPS has failed to pay the legal costs in spite of the court’s order.
Since the court appearance on May 14, 2024, when the lawyers for Rorich and Mfalapitsa requested yet another postponement of the long-delayed trial, the case has undergone extensive judicial management overseen by Judge Dario Dosio and Deputy Judge President Sutherland of the Gauteng High Court.
This case management became necessary after multiple applications by Rorich’s attorney, Mr. Kobus Muller, and Mfalapitsa’s attorney, Mr. Innocent Mthembu, throughout 2023 and 2024, each intended to delay the trial’s commencement.
Mr Mfalapitsa launched the civil review of his 2001 amnesty decision on 14 July 2023, on the eve of the criminal trial, which was set down for hearing from 21 August to 1 September 2023.
On 8 May 2024, Rorich lodged his objection in terms of s 85(1) of the CPA to the crimes against humanity charges before the criminal court. On the same day Rorich launched a civil application before the criminal court for a declarator on the same question, together with interdictory relief.
Following extensive case management meetings, Judges Dosio and Sutherland, ordered that:
- Mfalapitsa’s review application of the TRC’s amnesty decision shall be heard on 14 – 18 October 2024.
- Rorich’s civil application seeking declaratory and interdictory relief shall be withdrawn and removed from the roll;
- The criminal trial will commence on the 20th of November 2024, “the date for this trial is fixed” and no postponement may be entertained on grounds that “include the convenience of counsel or the availability of preferred counsel.”
- Rorich’s objection in terms of s85(1) of the Criminal Procedure Act, 1977 challenging the international charges, shall be heard at the commencement of the criminal trial; and
- Any interested party, may apply to the criminal trial court for permission to be admitted as an amicus in the preliminary hearing to determine the s85(1) objection.
On 26 September 2024, the Legal Resources Centre (LRC) acting on behalf of the COSAS 4 families, served an application to intervene as amicus curiae in the s85(1) objection proceedings.
On the 18th of October 2024, Mfalapitsa’s TRC review application was heard before Judge Wilson. The families of the COSAS 4 intervened in this application and argued for the dismissal of the application.
On 11 November 2024, Judge Wilson delivered the judgment and dismissed Mfalapitsa’s application to overturn the 2001 refusal of his amnesty request and replace it with a decision to grant him amnesty. In reaching this decision, the court elected to address the merits of Mfalapitsa’s application despite the substantial delay in its submission. The court upheld the TRC Amnesty Committee’s decision that the murders of the COSAS Four were not proportionate to the political objectives claimed by Mfalapitsa. It was Mfalapitsa who told the boys that he would train them, escalated the COSAS 4 into a position of perceived threat, and thus created the very justification for their murder.
Resources and legal papers
The TRC’s Human Rights Violation hearing on the murder of the COSAS 4 can be viewed on this link.
A full set of the legal papers filed with the Magistrate’s Court in September 2020 can be viewed on this link.
The court order (18 January 2022) by MOKGOATLHENG J on the legal costs question in the COSAS 4 can be viewed on this link.
Legal Argument ( 25 March 2022) on behalf of the Nhlapo & Madikela Families (legal costs) can be viewed on this link.
The court order (4 May 2022) by MOKGOATLHENG J on the legal costs question in the COSAS 4 case can be viewed on this link.
The judgment (4 May 2022) by MOKGOATLHENG J on the legal costs question in the COSAS 4 case can be viewed on this link.
The application for leave to appeal by the Minister of Police (16 August 2022) – the legal costs question can be viewed on this link.
The application for condonation by the Minister of Police (16 August 2022) – the legal costs question can be viewed on this link.
The application of Ms Selebi (29 August 2022) to intervene as a respondent and to oppose applications of the Minister of Police can be viewed on this link.
The court order (13 January 2023) by MOKGOATLHENG J on the legal cost question can be viewed on this link.
The judgment (11 November 2024) by WILSON SDJ on the Mfalapitsa’s application to overturn the 2001 refusal of his amnesty request can be viewed on this link.
The legal papers filed in the Mfalapitsa’s civil review application of the 2001 amnesty decision can be viewed on this link.
The court papers related to Rorich’s objection to the international charges under section 85(1) of the Criminal Procedure Act (CPA) can be viewed on this link.