TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Thursday, 24 March 2022
LEGAL ARGUMENT TO BE HEARD IN COSAS 4 CASE TO PREVENT MISCARRIAGE OF JUSTICE
Tomorrow (25 March) the presiding officer in the COSAS 4 case, Judge Mokgoatlheng, will hear 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. The hearing will take place in the Johannesburg High Court (courtroom 4A) on 25 March at 10.00 am.
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 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.
After decades of delay, former Askari, THLOMEDI EPHRAIM MFALAPITSA, and Security Branch explosives expert, 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.
The legal representatives of the Cosas Four families have 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. The accused in this matter were members of the former Security Branch (SB) of the SAP charged with the murder of MK operative, Nokuthula Simelane. Thembi Nkadimeng, the sister of the late Nokuthula Simelane, intervened in the litigation and argued that the accused, as former police officers carrying out authorised orders, were entitled to legal defence paid by the SAPS, the legal successor in title to the SAP. The Court found that:
- The SAPS was the successor in title to the SAP and assumed the latter’s liabilities and responsibilities.
- That kidnappings and extra judicial killings carried out by the SB were authorised and part of state sanctioned policy. The crimes were executed by the applicants in the course and scope of their employment with the SAP.
- The State had failed the deceased and her family “abysmally” due to decades long delays.
- The refusal of the SAPS to provide legal representation to the accused contributed to further delays, which compounded the suffering of the family.
The SAPS elected not to appeal the Coetzee judgment and are accordingly bound by it. In the Simelane case, 2 of the accused (Mong and Radebe) and 2 key witnesses died while the litigation dragged on for more than 2 years. If the accused in the COSAS 4 case died while the litigation unfolded it would amount to an entirely avoidable travesty of justice.
Earlier this week the attorneys for the COSAS 4 families asked the Court to consider exercising his powers in terms of section 173 of the Constitution to avoid a possible miscarriage of justice. Judge Mokgoatlheng called on the parties, as well as the SAPS, to appear in court on Friday morning to provide legal argument on this question.
Background on the COSAS 4 case
Some 40 years ago, on 15 February 1982, three young students Eustice Madikela, Ntshingo Mataboge, Fanyana Nhlapo were brutally killed, while Zandisile Musi was seriously injured by members of the Security Branch of the South African Police. These men were members of the Congress of the South African Students (COSAS) and became known as the COSAS 4. The COSAS 4 were lured into an old discarded pumphouse by an Askari (informer), Thlomedi Ephraim Mfalapitsa, under the guise that they would be given training on how to use certain weapons. The Security Branch had rigged the pumphouse with explosives and once Mfalapitsa left the pumphouse was locked and the explosives were detonated. 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. They were buried without a post-mortem examination, even though their deaths were obviously from unnatural causes. The law requires a post-mortem examination in deaths arising from unnatural causes. It is also a legal requirement that an inquest be held in an unnatural death where there is no prosecution. In more than 38 years there has been no inquest or prosecution, notwithstanding the fact that the perpetrators are well known to the authorities.
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.
Background on Rorich and Mfalapitsa
Mfalapitsa is a former Askari. Rorich is a former explosives expert with the erstwhile Security Branch. Both Mfalapitsa and Rorich were denied amnesty for the murders of the COSAS Four. Jan Carel Coetzee, Brigadier Willem Frederick Schoon (who authorised the operation) and Abraham Grobbelaar were also denied amnesty but died before they could face charges.
Rorich resigned from the police as a Lt Colonel on 30 March 1997. He was previously commander of the Security Branch in the Middleburg and Witbank regions. He was granted amnesty for the murder of Zweli-Banzi Nyanda and Keith McFadden in Mbabane, Swaziland. He was also granted amnesty for the murder of unnamed 2 persons (one a young child) at 2 transit houses in Swaziland in 1980. Rorich planted the devices that blew up the 2 houses. He was also granted amnesty for the murder of Bongani Gaga Zondi in Swaziland in 1988. He did not apply for amnesty for his alleged role in the abduction and torture of Joe Pillay in Swaziland on 19 February 1981. He did not apply for amnesty for allegedly authorising the burning of The Sacred Heart Church Hall in Witbank on 21 March 1988. He has to date not faced criminal charges in respect of these incidents.
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 can be viewed on this link.
For media enquiries contact:
Lindiwe Sithole, Media and Communication Officer, FHR at firstname.lastname@example.org and 082 634 7154
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 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.