PRESS RELEASE
TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Monday, 3 October 2022
COSAS’s 4 family opposes SAPS’s attempt to delay the murder trial
Press Statement issued by the Foundation for Human Rights and Webber Wentzel
On 29 September 2022, Ms Maide Selebi, sister of the late Eustace Madikela (one of the COSAS 4) filed a court application to intervene in the legal proceedings launched as a result of the South African Police Services (SAPS) refusal to pay the legal costs of Christiaan Siebert Rorich in the murder trial of four anti-apartheid student activists known as COSAS 4.
Eustice ‘Bimbo’ Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi were members of the Congress of South African Students (COSAS) who were lured by the Security Branch to a pumphouse near Krugersdorp in 1982. 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.
Ms Selebi opposes the application for leave to appeal by the Minister of Police against the Court’s judgment issued on 4 May 2022 directing the SAPS to pay the reasonable legal costs of Rorich. She also opposes the Minister’s application for condonation of the 3 months late filing of his leave to appeal.
Ms Selebi alleges that the Minister of Police and SAPS are in contempt of the court order issued on 4 May 2022.
Rorich is a former Security Branch explosives expert, who together with Tlhomedi Ephraim Mfalapitsa are charged with the murder of COSAS 4. In November 2021, historic charges of crimes against humanity were added to the indictment. This is the first time that crimes against humanity have been brought in South Africa. Joe Mamasela, an askari implicated in numerous assassinations of activists, who assisted Mfalapitsa by picking the four students up and driving them to a pump house near Krugersdorp, has not been charged.
On 15 February 2022, Rorich’s attorneys informed the court that SAPS had declined to pay the legal costs of Rorich, and that they intended to review this decision. To date Rorich’s attorney, Kobus Muller, has not reviewed the SAPS decision, and he is now time barred from doing so. He has also not invoked section 3 of the State Liability Act 20 of 1957 to execute against SAPS property for purposes of satisfying the court’s order.
The refusal of SAPS to pay the legal costs of Rorich was inconsistent with the ruling of Pretorius J in Willem Helm Johannes Coetzee & Others v Minister of Police & Others, 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 kidnapping and murder of MK operative, Nokuthula Simelane. The SAPS elected not to appeal the Coetzee judgment and are accordingly bound by it. In its application for leave to appeal SAPS does not argue that Coetzee was wrongly decided or that it is distinguishable from this case.
Since a review of the SAPS refusal to pay Rorich’s legal costs would delay the trial by years, the COSAS 4 families asked the court to invoke its inherent powers under the Constitution, 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.
On 4 May 2022, Judge Mokgoathleng issued an order and delivered judgment in open court. The court found that Rorich was formally employed by the South African Police (SAP) and that SAPS as the successor in title of SAP, was legally obliged in terms of the Standing Order 109 to provide the legal funding for his defence. The court ordered SAPS to commence paying with such costs within 14 days of judgment. Under court rules SAPS were meant to file their leave for appeal by no later than 25 May 2022.
SAPS ignored the court order and only filed its leave to appeal on 16 August 2022. In its application for condonation for late filing, SAPS claimed internal bureaucratic difficulties. Ms Selebi rejects this excuse and avers that SAPS is in brazen contempt of the court process. Not only did the SAPS defy the court’s order but it also failed to appear in 4 consecutive court hearings, without excuse or apology. Ms Selebi argues that the conduct of SAPS has effectively delayed the start of the criminal trial by a year. She says this was done with the knowledge that the case is 40 years old and the accused, witnesses and family members are in their twilight years.
In its application for leave to appeal, SAPS argues that the court should have waited for an application for review of the SAPS decision to be pursued before a civil court and allowed that process to be concluded first. Such a process could take up to 2 years or longer. Ms Selebi argues that such a delay could result in the trial collapsing, since the accused are elderly and could die in this period or become medically unfit to stand trial. She points out that this has happened in several other apartheid-era cases. The other suspects in this case, Jan Carel Coetzee, Abraham Grobbelaar and Brigadier Willem Frederick Schoon have already died.
SAPS also argues the criminal charges against Rorich, namely kidnapping, murder and crime against humanity, fall outside normal police duties. Ms Selebi points out that such crimes fell squarely within the modus operandi and required police work of the Security Branch. The kidnapping and murder of the Cosas 4 was an official police operation and Rorich acted under orders from his superiors.
To access the full record of papers in the COSAS 4 matter see: https://unfinishedtrc.co.za/future-cases/#COSAS-3-Zandisile-Musi
For media enquiries contact:
Lindiwe Sithole, Media and Communication Officer, FHR at lsibiya@fhr.org.za and 082 634 7154
For more information contact:
Moray Hathorn moray.hathorn@webberwentzel.com; Ahmed Mayet: amayet@fhr.org.za and Katarzyna Zdunczyk: kzdunczyk@fhr.org.za
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 (FHR) is a nonprofit 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 four 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, 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 account- ability 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.
