PRESS RELEASE
To: All Media
ATT: News Editors, Human Rights Reporters
For Immediate Release
13 November 2024
FHR and LRC Welcome Dismissal of Mfalapitsa’s TRC Amnesty Review Application, Urge Focus on Securing Trial
Press statement issued by the Foundation for Human Rights and the Legal Resources Centre
The Foundation for Human Rights (FHR) and the Legal Resource Centre (LRC) welcome a well-reasoned judgment in the matter of Tlhomedi Mfalapitsa v Minister of Justice and Others, in which Judge Wilson dismissed Mfalapitsa’s application to overturn the 2001 refusal of his amnesty request and replace it with a decision to grant him amnesty.
Tlhomedi Mfalapitsa and Christiaan Siebert Rorich are accused in the trial over the 1982 murders of anti-apartheid activists Eustice “Bimbo” Madikela, Peter “Ntshingo” Matabane, and Fanyana Nhlapo, as well as the attempted murder of Zandisile Musi—known collectively as “the COSAS 4”.
The judgment in the Mfalapitsa amnesty review application establishes a powerful precedent, demonstrating that justice systems can and will act in the pursuit of truth and fairness, and that acts of violence cannot go unanswered, no matter how much time has passed.
At the same time, the FHR and LRC are concerned about the possibility of further delays in the COSAS 4 trial, which is set to begin on November 18, 2024, at the Johannesburg High Court.
From November 18, Judge Dosio will hear objections to the international charges under section 85(1) of the Criminal Procedure Act (CPA), raised by one of the accused, Christiaan Siebert Rorich. The COSAS 4 families have applied to intervene as amicus curiae in the s 85(1) CPA objection to advise the court on the important issues of international criminal law, and to argue that international charges should be upheld.
However, the future of the trial faces a high risk of collapse due to Rorich’s attorney, who states that their counsel is prepared only to proceed with the section 85(1) objection and not with the criminal trial itself. The position of Rorich’s attorneys is in a clear defiance of repeated court orders, and is a blow in the face of families who have waited for justice for 42 years.
The trial in the COSAS 4 matter is both historical and significant – it will be the first time that charges under international law, specifically the crime against humanity of murder and the crime against humanity of apartheid, will be brought against two individuals in a South African court.
The 42-year long wait for justice and closure has caused profound harm to the families of the COSAS 4. Zandile Musi, the only survivor of the 1982 attack passed away in 2021 without seeing justice done. The commencement of the trial will be the first huge step for the family members in seeking justice to come to terms with their loss.
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For media queries | Foundation for Human Rights: Humairaa Mayet at hmayet@fhr.org.za or at 073 373 4077
For media queries | Legal Resources Centre: Moray Hathorn at moray@lrc.org.za or at 063 003 0640
Background to the case
Eustice “Bimbo” Madikela, Peter “Ntshingo” Matabane, Fanyana Nhlapo, and Zandisile Musi were students from Kagiso, a township in Gauteng, and members of the Congress of South African Students (COSAS), an organisation affiliated with the then-banned African National Congress (ANC). Collectively known as the COSAS 4, their lives were forever altered on February 15, 1982, when they were lured to an explosive-rigged pump house by informers associated with the Security Branch.
Thlomedi Ephraim Mfalapitsa, once a friend of Musi’s brothers in the ANC’s military branch, later became an ‘Askari’, collaborating with the Security Branch. Carel Coetzee, Willem Frederick Schoon, and Abraham Grobbelaar masterminded the operation. Mfalapitsa and Rorich, along with other perpetrators, carried out their orders, resulting in the deaths of Madikela, Matabane, and Nhlapo, and the grievous injury of Musi.
To access the full record of papers in the COSAS 4 matter see: https://unfinishedtrc.co.za/future-cases/#COSAS-3-Zandisile-Musi
The COSAS 4 families are supported by the Foundation for Human Rights and represented by the Legal Resources Centre on a watching brief in the criminal trial.
Latest procedural case history
Christiaan Siebert Rorich and Thlomedi Ephraim Mfalapitsa are charged with kidnapping, murder and crimes against humanity of murder and apartheid (read with the section 232 of the Constitution) for unlawfully and intentionally killing the three students and attempting to kill the fourth one, in the context of “a systemic attack or elimination of political opponents of the apartheid regime”.
Since the last 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 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.
In the series of the latest development, on 24 October 2024, the Rorich’s Attorney, Kobus Muller, wrote to the Director of Public Prosecutions, stating, inter-alia, that their counsel is available only on 20 – 22 November 2024 “to consider the progress in the two civil applications and to determine the dates for the continuation of the criminal trial.” He stated that his counsel is not available to proceed with the trial.