An open letter to the Minister of Police:
Dear Honorable Minister Bheki Cele,
We write to you on behalf of the families of the apartheid-era victims in the Cosas 4 and Caiphus Nyoka cases, whom we support in their efforts to achieve justice and closure.
The Cosas 4 murders occurred over 40 years ago; Nyoka was murdered over 35 years ago. The window of opportunity to bring justice to the perpetrators in these cases is rapidly closing. Most of the suspects are already dead and the few that remain are in their later years and could die at any time or become medically unable to stand trial.
Maide Selebi, sister of the late Eustice Madikela; Tryphina Mokgatle, the sister of the late Zandisile Musi; Thandi Nhlapo, the niece of the late Fanyana Nhlapo; Tshepo Matabane, son of the late Ntshingo Matabane (the families of Cosas 4); and Alegria Nyoka, Nyoka’s sister have asked us to bring to your attention their disappointment at the refusal of the South African Police Service (SAPS) to pay the legal costs of the former officers accused of the 4 Things murders. and Nyoka in official police operations during the 1980s.
Had it not been for the denials, both trials could well have concluded this year, providing much-needed closure for the families and their communities. It would also have demonstrated the state’s commitment to finalizing long-delayed apartheid-era cases.
The refusals will cause the delay of several years of both trials, which will lead to their probable collapse. This SAPS approach has become the biggest obstacle to the completion of the few remaining apartheid-era cases. Ironically, this means that the work of the Priority Crimes Investigation Directorate to unearth evidence of these decades-old crimes is likely to come to nothing.
The refusal goes against the 2018 ruling in the Coetzee case, in which the Pretoria High Court ordered the SAPS to pay the legal fees of former Security Section officers charged with the murder of Nokuthula Simelane in 1983. His office refused to appeal this ruling.
The litigation delayed the criminal trial for years, during which time two of the four defendants died. That case is now further delayed, possibly for years, as one of the two remaining defendants prepares to challenge an assessment declaring him mentally fit to stand trial.
Although there is no material distinction between the Coetzee case and the Cosas 4 and Nyoka cases, the SAPS has refused to pay reasonable legal costs in these latter cases. The refusal in the Things 4 case is also in defiance of a court order issued by Judge Ratha Mokgoathleng on May 4, 2022. His office has appealed this order on purely technical and procedural grounds. This appeal will take years to resolve.
SAPS’s intransigence on this matter is also inconsistent with its past practice of covering the legal costs of ex-police officers in reopened investigations into the in-custody deaths of Ahmed Timol, Neil Aggett and Hoosen Haffejee. Had the SAPS refused such payments, these landmark cases could not have proceeded.
While paying the legal fees of the police officers who murdered the anti-apartheid activists sticks down their throats, the officers in question were acting under orders and committed such offenses in the course and scope of their employment with the former SAP. The extrajudicial execution of opponents of apartheid was a state-sanctioned policy at the time. The SAPS is the legal successor to the SAP and must assume its legal responsibilities, as the Coetzee court held.
It is not clear why you would want to associate yourself with an approach that would likely see the last remaining cases of the apartheid era collapse. Aside from the long-delayed Simelane case, there are currently only two apartheid-era cases before the courts: Things 4 and Nyoka.
The political interference that suppressed the investigation and prosecution of the apartheid-era cases has ensured that they can never be resurrected. This is because most of the suspects and witnesses have already died. Only a handful of these cases are likely to make it to court.
Consequently, the impact on the police budget will be modest. Given that the financial implications for the state are not unduly substantial, you have to ask yourself what is driving the SAPS approach that is revolutionizing decades-delayed criminal trials involving cases of great importance to South Africa’s fight for freedom and democracy.
The families are of the opinion that there are elements within the SAPS who wish to protect the apartheid-era perpetrators from justice by orchestrating further delays, which will result in the collapse of the few remaining cases.
In this regard, it is revealing that the former Department of Security defendant in the Cosas 4 case, Lt. Col. CS Rorich, does not oppose his appeal of the May 4, 2022 injunction requiring him to pay his legal costs.
We urge you to change course and not inadvertently further the interests of apartheid-era perpetrators. It is his strategy to design endless delays to escape justice. Their current approach to the issue of legal fees directly favors them.
After waiting 40 years for justice and closure, families should not have to endure the pain, suffering and indignity of further delay. If the defendant dies or becomes mentally incapacitated to stand trial at the end of the trial, the damage caused to the family and the community will be irreversible and incalculable. The responsibility for such an outcome will fall squarely on your doorstep.
Feel free to contact the writer if you need more information or if you would like to meet with the foundation and the families.
Sincerely,
Dr. Zaid Kimmie, Executive Director, Foundation for Human Rights
