TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Wednesday, 27 July 2022
Conduct of SAPS & State Attorney obstructs apartheid-era trials
Refusal by SAPS to pay legal costs of police accused further delays trials
Press Statement issued by:
Foundation for Human Rights, Webber Wentzel, Maide and Thabiso Selebi, sister and nephew of the late Eustace Madikela (one of the COSAS 4), and Alegria Nyoka, elder sibling of the late Caiphus Nyoka (on behalf of the Nyoka family)
The conduct of the SAPS in refusing to pay the legal fees of apartheid era police officers charged with murder is obstructing criminal trials from proceeding. The refusal of the SAPS is in defiance of an earlier judgment which ruled that it was obliged to pay such fees as well as a court order directing them to do so.
The criminal trials involving the murder of the COSAS 4 and Caiphus Nyoka could potentially be delayed by years while the accused are forced into needless litigation. This would amount to a travesty of justice, as accused persons who are elderly, could pass away during the delay, as occurred in the Nokuthula Simelane murder case. Two of the four accused in that case, Fredrick Mong and Timothy Radebe, died during the six years delay since the issuing of the indictment in 2016, the bulk of which was caused by the litigation over the SAPS refusal to pay the legal fees of the accused. This was only resolved when the Pretoria High Court ruledthat the SAPS were legally responsible for such costs.
COSAS 4 murder trial
The trial in the matter of former askari, Tlhomedi Ephraim Mfalapitsa, and Security Branch explosives expert, Christiaan Sebert Rorich, who are charged with the murder of the COSAS activists was delayed again on 19 July 2022, when the State Attorney representing the South African Police Service (SAPS) failed to appear in court. This was in violation of the court’s order for the state attorney to appear and explain the non-payment of Rorich’s legal fees. The SAPS are in brazen defiance of Judge Mokgoathleng’s earlier order obliging SAPS to pay the reasonable legal costs of Rorich. The conduct of the State Attorney and SAPS is contemptuous of the court process and is needlessly delaying the start of the trial.
The COSAS 4 is the collective name given to Eustice ‘Bimbo’ Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi who were members of the Congress of South African Students (COSAS) and who were lured by the Security Branch to a pumphouse near Krugersdorp on 15 February 1987. The police had rigged the pumphouse with explosives which they detonated once the four were inside. All were killed except for Musi who was seriously injured.
Tlhomedi Ephraim Mfalapitsa and Christiaan Sebert Rorich were charged with the kidnapping and murder of the COSAS 4 in August 2021. In November 2021, historic charges of crimes against humanity were added to the indictment.
On 18 January 2022, the court ordered Major General Colin Hendricks, the SAPS Provincial Head of the Gauteng Legal Division, to process and finalise the application for state funded defence for Rorich by 26 January 2022, failing which he was ordered to appear in court to explain his failure and why he should not be held in contempt of court. Hendricks did appear in court on 26 January to explain the delay.
On 15 February 2022, Rorich’s attorneys informed the court that SAPS had declined to pay the legal costs of Rorich, and they intended to review this decision. The refusal of SAPS was inconsistent with the ruling of Pretorius J in Willem Helm Johannes Coetzee & Others v Minister of Police & Others, Gauteng Division, Case No. 72747/2016 (the Coetzee judgment), which set aside the decision of SAPS not to fund the legal defence of the accused who were former Security Branch members charged with the murder of MK operative, Nokuthula Simelane. The SAPS elected not to appeal the Coetzee judgment and are accordingly bound by it.
Since a review of the SAPS refusal would delay the trial by years, the COSAS 4 families asked the court to invoke its inherent powers, as well as its powers under the Criminal Procedure Act, to order the SAPS to pay the legal costs of Rorich, to avoid a grave miscarriage of justice. Such an order was issued on 4 May 2022. Since then, SAPS has failed to comply with the court order and indicated that it intended to appeal the court order, but no application for leave to appeal has been filed and it is now out of time to do so.
The SAPS and their lawyers, the State Attorney, failed to appear in court on 19 July 2022. The Court ordered the State Attorney to appear on 17 August 2022 to explain why he did not meet with the defence team to discuss a fee structure, and why he did not seek leave to appeal. On this day a trial date will be set. However, it is not clear how a trial date can be set in the absence of an arrangement to pay the legal fees of Rorich. It is also not clear why the lawyers for Rorich have not invoked section 3 of the State Liability Act 20 of 1957 to execute against SAPS property to satisfy the court order of 4 May 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 19 July 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.
Caiphus Nyoka murder trial
A similar delay may arise in the Caiphus Nyoka murder trial. Nyoka was a student activist and also a member of the Congress of South African Students (COSAS). On 24 August 1987, he was shot dead by the police in the early hours of the morning at his home in Daveyton. In late 2019, former Security Branch officer, Johan Marais, confessed to a Rapport journalist that he had shot Nyoka in cold blood. A murder indictment was issued by the National Prosecuting Authority in February 2022. Two of the former police accused applied to the SAPS for the payment of their legal fees. The SAPS have still not made a decision in this regard. It is feared that following a delay the SAPS are likely to refuse legal support, as they have done in COSAS Four.
On 23 June 2022, in a provisional hearing at the Benoni Magistrates Court the matter was postponed to a “final provisional date” pending inter alia the decision of the SAPS on the application of accused 2 and 3 for funding of their defence. The matter was remanded to 2 August 2022.
Call to the SAPS
The Foundation for Human Rights, the Nyoka family and Maide and Thabiso Selebi call on the SAPS to expeditiously pay the reasonable legal costs of apartheid-era police officers who are now facing criminal charges for crimes committed while on police operations.
The SAPS is legally obliged to pay such costs in terms of the Coetzee judgment in the Nokuthula Simelane case, as well as the court order of 4 May 2022 issued by Mokgoatlheng J 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 reasons for current delays in apartheid-era cases.
It is entirely unclear why the SAPS is putting up such resistance when so few cases are at stakes. Given the political suppression of hundreds of apartheid-era cases referred by the Truth and Reconciliation Commission to the NPA, the vast majority cannot be revived at this late stage as suspects and witnesses have died. It is likely that only a handful of cases will see the light of day in a court.
It would constitute an abuse of the court process for the SAPS to now dispute the Coetzee judgment when it declined to appeal that judgment. Forcing the accused in the COSAS 4 and Nyoka cases to launch fresh civil proceedings to review the refusal of the SAPS is likely to delay these trials for years.
The accused are elderly and may very well die during the delay. This would amount to a grave miscarriage of justice given that the cases have already been delayed for decades. If any of the accused died, or became medically unfit to stand trial, while the litigation unfolded, it would amount to an entirely avoidable travesty of justice. Such an injustice would be irreversible and would have to be laid squarely at the doors of the SAPS.
The COSAS 4 and Nyoka families have endured decades of pain waiting for closure. Suspending the criminal proceedings for years, to permit civil reviews to unfold, would add deep insult to the considerable injuries already suffered by the families.
For media enquiries contact:
Lindiwe Sithole, Media and Communication Officer, FHR at firstname.lastname@example.org and 0826347154
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 provides free legal services to poor and vulnerable members of the public through its pro bono legal practice group. Moray Hathorn who acts for the families is the senior attorney and human rights activists who has served as attorney in several high-profile human rights cases including the reopened inquests into the murder of Ahmed Timol and Dr Neil Aggett.
 This scandalous travesty of justice remains unresolved to this day. See: CALL FOR AN INDEPENDENT PUBLIC & OPEN COMMISSION OF INQUIRY INTO THE SUPPRESSION OF THE TRC CASES