TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Friday, 20 May 2022
The Nokuthula Simelane, COSAS 4 and Caiphus Nyoka matters before courts
Press Statement by the Foundation for Human Rights and Webber Wentzel
The families of apartheid-era freedom fighters who have waited for almost 40 years for justice may finally see the perpetrators responsible for the deaths of their loved ones be held to account, when court proceedings in the below-mentioned three cases begin:
Enforced Disappearance, Torture and Murder of Nokathula Simelane
- 23 May 2022 – The trial in the matter of torture, murder and enforced disappearance of Nokuthula Simelane is scheduled to commence at the Pretoria High Court. The legal representatives from Webber Wentzel Pro-Bono Department who act for the Simelane family, advise that defence is likely to ask for a further postponement of the trial due to the health problems faced by one of the accused. The matter is likely to be postponed until the 30th of May 2022.
Murder of Caiphus Nyoka
- 23 May 2022 – The hearing into the death of Caiphus Nyoka will resume in the Magistrate’s Court in Benoni. At the last court hearing on 26 April 2022, the legal representatives acting for Algeria Nyoka, filed representations requesting the DPP to include charges under international criminal law i.e., crimes against humanity of murder and apartheid. The judge ordered the postponement of the matter until the 23rd of May pending the decision of the DPP with respect to the international charges.
Murder of COSAS 4
- 24 May 2022 – The court hearing in the matter of the COSAS 4 will take place at the Johannesburg High Court. The matter was postponed when the South African Police Service (SAPS) refused to pay the costs of the defence for one of the accused, who is a former Security Branch Officer. On 25 March 2022, the legal team acting for the COSAS 4 families, filed an application in court requesting that the SAPS be ordered to pay the reasonable legal costs of the second accused, Christiaan Sebert Rorich. On the 4th of May, the Judge ordered the SAPS to pay the reasonable costs of the accused in the matter, and to notify him about the decision by the 24 May 2022. The court is also likely to discuss the dates for the trial.
Nokuthula Simelane Case
Nokuthula Simelane, a young MK operative, was abducted, tortured, and forcibly ‘disappeared’ by members of the Soweto Intelligence Unit (SIU) of the South African Police (SAP) in 1983. In 2001, the Truth and Reconciliation Commission’s (TRC’s) Amnesty Committee granted some of the perpetrators amnesty for Nokuthula’s abduction, but none of the perpetrators applied for amnesty for her murder. In 2016‚ a prosecution was brought against Willem Coetzee‚ Anton Pretorius‚ Frederick Mong, and Msebenzi Radebe‚ formerly of the Soweto Special Branch police‚ for their alleged roles in her murder. Since the indictment was issued, two of the accused, namely Mong and Radebe‚ passed away.
The Simelane matter is reflective of the South African government’s failure to effectively investigate and prosecute apartheid-era gross human rights violations, where amnesty for certain crimes was not granted nor applied for. The Simelane matter is also an example of an extraordinary perseverance by the family, who has been tirelessly fighting for justice for their beloved sister and daughter since 1996. Looking at the process between 1996 and 2022 one is shocked at what the family has been forced to endure to see perpetrators finally facing justice. The story of the Simelane family is reflective of hundreds of families whose beloved ones sacrificed their lives for a free and democratic South Africa. The process aimed at bringing perpetrators to justice in the Simelane matter can be divided into the following stages:
- 1996 – The police docket was opened in 1996 at the request of the family.
- 1998 – Once the TRC concluded its work, the Nokuthula Simelane’ case was one of several hundred cases that were handed over by the TRC to the National Prosecuting Authority (NPA) for further investigations and prosecutions. The matter did not progress as the NPA claimed that their hands were tied in the absence of a prosecutorial strategy for the TRC cases.
- 2005 – The FHR took on the Simelane matter in 2005, and assisted Simelane and Cradock 4 families in challenging the new amendments to the NPA’s Prosecution Policy, which effectively created a ‘backdoor amnesty’, before the court. In 2008, the Pretoria High Court struck down the NPA’s amendments, declaring them to be absurd and unconstitutional.
- 2008-2010 – The challenges continued even following the 2008 judgment. The investigating officer was appointed only in 2010, shortly before the family learnt that the “docket” had allegedly gone missing.
- 2013 – When the family realized that there had been no real progress in the case, they decided to pursue the option of a judicial inquest instead of the prosecution. The request for the inquest was declined on the basis that the NPA’s investigation “was still ongoing”.
- 2015 – Following the NPA’s decision refusing to open an inquest, the family and its legal representatives had engaged in extensive communication with the police and prosecutors trying to convince them to finalize the investigation, but these efforts proved fruitless. As a result, Thembi Nkadimeng, the sister of Nokuthula Simelane, filed an application to compel the DPCI to finalize the investigation of the Simelane matter and the NPA to make a prosecutorial decision. The application revealed the extent of the political interreference and the way the politicians, prosecutors and investigators colluded to have the TRC cases supressed. This has been further confirmed in Rodrigues v National Director of Public Prosecutions of South Africa. The High Court and the Supreme Court of Appeal expressed their dismay at how such political interference could take place in our new constitutional order.
- 2016: Following the Nkadimeng application in 2015, on 8 February 2016, the NPA announced it would be prosecuting Coetzee, Pretorius, Mong and Radebe for Simelane’s murder. However, the prosecution case was further delayed by the SAPS’ refusal to pay the legal fees of the accused.
- 2016-2018: The SAPS argued that the former officers had acted outside of the course and scope of their professional duties, and had carried out the kidnapping and presumed murder on their own volition. The FHR supported an application by the four accused to compel the SAPS to cover their legal costs. The SAPS was ordered to do so by the Pretoria High Court in June 2018. However, in early 2019, Radebe passed away, having never faced justice.
- 2019: On 6 June 2019, the Pretoria High Court granted a rule nisi calling upon all interested parties to show cause (if any) why an order that Simelane be presumed dead should not be made final. Thembisile Nkadimeng launched an ex parte application on 13 August 2019 for the finalization of the presumption of death. Simelane’s death certificate was issued on 21 August 2019.
- 2016-2022: During this period, the FHR and the legal team acting for the family supported by experts in international criminal law have made relentless efforts to have the charges under international criminal law included in the indictment of the accused. The FHR provided the NPA with a number of legal opinions and has also engaged extensively on the matter, to no avail. The DPP, and then NDPP, have refused to include the charges under international law in the indictments claiming that it would cause “undue delay” to the trial. They have also declined to grant a nolle prosequi certificate with respect to the international charges component claiming that it was not competent under South African law. By excluding international charges from the charge sheets, the NPA not only has acted in violation of South Africa’s international obligations but has also decided against pursuing a feasible legal strategy.
- 2022 – Following a number of postponements, the court eventually set the trial for 23 May until 17 June 2022. As per recent information, the trial is likely to be postponed until the 30th of May.
Caiphus Nyoka was a student activist and 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. An inquest into his death was held in October 1988. This inquest court ruled that the police had in fact acted in self-defence, despite family members asserting that Nyoka did not have a weapon. Nyoka’s sister, Alegria Nyoka appeared before the TRC in 1997 demanding an investigation into his killing. In late 2019, former security branch officer, Johan Marais, confessed to a Rapport journalist that he had killed Nyoka in cold blood more than 30 years ago.
Despite the Marais’s confession in 2019, the NPA decide to institute charges against the surviving perpetrators only in 2022.
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, Christiaan Sebert Rorich, were charged with kidnapping and murder in August 2021. Another Askari, Mamasela, was also involved in this incident. In November 2021, charges of crimes against humanity of murder and the crime 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 defense fees of Rorich. Following the intervention by the legal representatives of the COSAS 4 families, the court ordered SAPS to pay the legal costs of Rorich.
For media enquiries contact:
Lindiwe Sibiya, 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 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 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.