To: All Media
ATT: News Editors, Human Rights Reporters
For immediate Release
Friday, 14 April 2023
Renewed hope for justice: Police Minister decides against filing an application for leave to appeal in COSAS 4 legal cost battle
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 the decision by the Minister of Police not to appeal to the Supreme Court of Appeal (SCA), an order granted on 12 January 2023 and judgment delivered on 31 January 2023 in the legal costs issue. The order and judgment by the High Court dismissed the Police Minister’s application for leave to appeal against a judgment issued on 4 May 2022, directing the South African Police Services (SAPS) to pay the reasonable legal costs for Christiaan Siebert Rorich – one of the accused in the COSAS 4 matter. The Judge also dismissed the Minister’s application for condonation of late filing of the appeal.
Rorich and Thlomedi Ephraim Mfalapitsa are on trial for the murder of Eustice ‘Bimbo’ Madikela, Itumeleng Peter Matabane (also known as Ntshingo), Fanyana Nhlapo, and serious injury of Zandisile Musi. The four anti-apartheid activists were members of the Congress of South African Students (COSAS), and they were collectively known as the “COSAS 4”.
On 22 March 2023, the State Attorney representing the Minister of Police, Mr Kobus Meier, informed the legal team at the LRC who acts for the COSAS 4 families that the Minister of Police had decided against proceeding with the appeal to the SCA, which means that the SAPS will now have to fully comply with the judgment of the court to pay reasonable legal costs for Rorich. The FHR and the LRC call upon the State Attorney and the defence counsel for Rorich to proceed with the finalisation of the fee arrangements as soon as possible in order to avoid further delays in the matter.
The decision by the Minister of Police is a result of successful advocacy efforts by civil society and the media. The issue of legal costs in the COSAS 4 matter attracted significant media coverage. On 5 December 2023 the FHR published and sent an open letter to the Minister of Police pleading that he reconsiders the SAPS’ position on the legal cost issue. Although there has been no response to this letter from the Ministry, the decision by the Police Minister not to continue with the appeal process before the SCA is a welcome development.
The payment of legal costs for former officers of the former South African Police should be expedited in all TRC cases, including Caiphus Nyoka, Musa Sbo Phewa and Ntombikayise Khubeka matters.
The payment of the reasonable legal costs by the SAPS in all TRC cases would pave the way for the families of the victims to finally see long-denied justice being done for their loved ones. The government has an obligation under international law to guarantee the rights of victims’ families to truth and to justice, which can only be fulfilled if there are no undue delays to the trials in the apartheid-era cases.
For media enquiries contact:
Mx Kholekile Mnisi, Media and Communications Specialist, FHR at email@example.com or 0656130977
Eustice ‘Bimbo’ Madikela, Peter “Ntshingo” Matabane, Fanyana Nhlapo and Zandisile Musi were students from Kagiso, Gauteng, and members of the Congress of South African Students (COSAS), an organisation which was affiliated with the then banned African National Congress (ANC).They are collectively known as the COSAS 4. Madikela, Matabane and Nhlapo were killed and Musi was seriously injured on 15 February 1982 after they had been lured by two “askaris” (informers), Joe Mamasela and Thlomedi Ephraim Mfalapitsa to an old pump house in which Security Branch Officers had planted explosives. Mfalapitsa had previously been a close friend of Musi’s brothers in exile, who, like him, had been members of the ANC’s military branch Umkhonto weSizwe (MK).Unbeknown to Musi, Mfalapitsa had later turned “askari” and joined the South African Police (SAP) as a Security Branch officer. Mfalapitsa was ordered by his superiors in the Security Branch to lure Musi and the other 3 students to a pump house at a mine near Krugersdorp, under the false pretence that he intended to give them military training.
Some of the Security Branch officers involved in the murder of Madikela, Matabane and Nhlapo, and serious injuring of Musi appeared before the Truth and Reconciliation Commission (TRC). Carel Coetzee, Willem Frederick Schoon, Abraham Grobbelaar, Christiaan Siebert Rorich and Ephraim Mfalapitsa were denied amnesty and the case is one of those which were referred by the TRC to the NPA for investigation and prosecution. Although he did not apply for amnesty, Mamasela testified in camera (section 29 investigative hearing) before the TRC. In August 2021, Mfalapitsa and Rorich were charged with kidnapping and murder, and charges of crimes against humanity of murder and the crime against humanity of apartheid were subsequently added to the indictment in November 2021.
Background to the Legal costs battle
Initially, the SAPS refused to pay the reasonable defense costs for former Security Branch officer Christiaan Siebert Rorich raising mainly procedural arguments to justify the decision. The initial refusal by the SAPS to pay for Rorich’s legal costs was surprising, bearing in mind that they had readily agreed to pay the legal fees of former police officers in other apartheid-era cases i.e., Timol, Aggett, Haffejee and Haron inquests. The SAPS, for instance, paid millions of tax-payers money to cover legal fees of Joao Rodrigues, an accused in the Timol murder trial. The refusal to pay legal costs for Rorich was also inconsistent with the judgment in in Willem Helm Johannes Coetzee & Others v Minister of Police & Others, Gauteng Division,Case No. 72747/2016. The court ruled in Coetzee that the SAPS, as the successor in title to the South African Police (SAP), was obliged to pay the reasonable legal costs for Willem Coetzee, Anton Pretorius and Frederick Mong in the Nokuthula Simelane case. The SAPS did not appeal the Coetzee decision.
The judgment on the legal costs question in the COSAS 4 matter was delivered on 4 May 2022. Judge Mokgoatlheng ordered the SAPS to pay the reasonable legal costs for Rorich and to notify him about the decision by 24 May 2022.On 16 August 2022, the Minister of Police filed an application for leave to appeal against the judgment on the legal costs question; and an application for condonation for the late filing of the application for leave to appeal. On 29 September 2022 Ms Maide Selebi, Eustace Madikela’s sister , filed an application to intervene in the main application for leave to appeal by the Minister of Police , as 4th respondent. Ms Selebi also opposed the Minister’s applications for leave to appeal and condonation. On 11 October 2022 a hearing was conducted in relation to the legal costs matter.
On 12 January 2023, Judge Mokgoatlheng issued an order dismissing the Police Minister’s application for leave to appeal, and application for condonation of the late filing of the application for the notice of appeal. The full judgment with reasons for the order was delivered on 31 January 2023.
It is important to quote an extract from Coetzee, whereby the court found that,
“It would be in the public interest if this trial commences as soon as possible to ensure justice not only to the applicants, but to the fourth applicant and her family as well, and society as a whole. It is further in the public interest that the applicants should have proper legal representation and a fair trial as soon as possible. The commencement of the trial has already been unduly delayed due to the decision not assist the three applicants with payment”.
Bearing in mind that the crimes in the TRC cases were committed a long time ago, failure by the SAPS to pay reasonable legal costs for former SAP officers in the TRC cases, would pose a real risk that the accused may be deemed mentally unfit to stand trial or die before the commencement of trial, thereby collapsing these cases.
To access the full record of papers in the COSAS 4 matter see: https://unfinishedtrc.co.za/future-cases/#COSAS-3-Zandisile-Musi
For more information contact:
Mr Moray Hathorn (Legal Resources Centre) at Moray@lrc.org.za or Ms Kasia Zdunczyk (Foundation for Human Rights) at firstname.lastname@example.org .
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 four main human rights programs: the Gender Based Violence and Femicide Programme (known as “The Masibambisane Programme”), the Unfinished Business of the Truth and Reconciliation Commission Programme, the Community Engagement 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.
Legal Resources Centre
The Legal Resources Centre (LRC) is a human rights organisation, which was established in in 1979 to use the law as an instrument of justice, challenging the legal structures of apartheid. Using strategic litigation and advocacy, the LRC works to address the structural and intergenerational economic and social injustice in South Africa with a focus on land and education rights. Some of the COSAS 4 families are represented by the LRC since February 2023. Previously, they were represented by Webber Wentzel Pro-Bono Department.