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Daily Maverick
06-05-2025
- Politics
- Daily Maverick
Landmark ruling: Justice for anti-apartheid activists moves closer after decades of delay
The country is preparing for its first crimes against humanity case, reigniting hope for victims and their families. This April, a South African high court confirmed that those accused of murdering three young anti-apartheid activists and injuring another student 43 years ago could be prosecuted. At the time of the attack, the victims were all members of the Congress of South African Students (Cosas). The two accused in what is locally known as the Cosas 4 case had sought the presiding judge's recusal, but their application was denied. The ruling is significant not just because the victims' families have waited nearly half a century for justice, but because the charges include murder and apartheid as crimes against humanity. This is the first time a South African court will hear a criminal case involving crimes against humanity. This development is also important because it will be the first time that apartheid, as a crime against humanity, is prosecuted anywhere in the world. While the Cosas 4 case concerns only one incident, the high court decision paves the way for other prosecutions of crimes against humanity in South Africa. Unpacking the Cosas 4 case helps shed some light on this. On 15 February 1982, four students belonging to Cosas — Eustice 'Bimbo'' Madikela Mathlapo (17), Peter 'Ntshingo' Matabane (18), Fanyana Nhlapo (18) and Zandisile Musi (19) – were allegedly lured to a mine in Krugersdorp, west of Johannesburg. The mine was rigged with explosives, and when they arrived, the detonation killed three and seriously injured Musi. Two of the five alleged perpetrators — Christiaan Siebert Rorich and Tlhomedi Ephraim Mfalapitsa — worked for the apartheid state at the time. For decades, they were linked to the incident following revelations at the 1999 Truth and Reconciliation Commission (TRC). The other three policemen implicated have since died. Indicted Yet, it wasn't until 2021 that they were finally indicted. The delay has been attributed to alleged political interference between 2003 and 2017, an uncooperative police service, and differing opinions on whether the accused could be charged for crimes committed before South Africa's freedom from apartheid. The case has been embroiled in legal challenges by the two accused. First, their lawyers argued they should not be charged with crimes against humanity because there should be a statute of limitations for these offences since they occurred more than 20 years ago. The Gauteng Division of the High Court in Johannesburg disagreed, ruling in favour of the National Prosecuting Authority's (NPA) argument that there was no statute of limitations for crimes against humanity, similar to other serious offences like murder. Second, the accused contended that the alleged incident occurred before South Africa was party to international conventions on crimes against humanity, including apartheid. They argued that only crimes committed after the Rome Statute of the International Criminal Court came into effect on 1 July 2002 could be prosecuted. The NPA countered that apartheid and other crimes against humanity were part of customary international law, and that the constitution required South African courts to abide by international law. So, there was a duty to investigate and prosecute such crimes. The court agreed with the NPA, effectively opening the door for prosecutions of many apartheid-era cases where the alleged offences amount to international crimes. Similar arguments were made in 2019 by the Southern Africa Litigation Centre in the case against Joao Rodrigues, who was accused of murdering anti-apartheid activist Ahmed Timol in police custody in 1971. Though preparations were at an advanced stage, Rodrigues died before he could be prosecuted. The landmark Cosas 4 decision affirms that there shouldn't be impunity for atrocities committed in South Africa before or after 1994. This marks a milestone in the pursuit of accountability and justice. But it is arguably the 'easy' part. Proving that these atrocities amounted to crimes against humanity will be hard. Widespread and systematic attack The prosecution must show that the offences were carried out as part of a widespread and systematic attack against a civilian population. That means demonstrating that the kidnapping, murder and injury of the Cosas 4 was not an isolated incident, but part of the apartheid government's policies and practices. To guard against the accused getting off scot-free if the crimes against humanity threshold cannot be met, Rorich and Mfalapitsa were also alternatively charged with the common law crimes of kidnapping and murder. Whether found guilty of either of the charges, Rorich and Mfalapitsa face life imprisonment. This means that attempts to stop future prosecutions of apartheid-era crimes are essentially dead in the water for three reasons. First, in terms of South Africa's Constitution, customary international law forms part of South African law, and crimes against humanity, including apartheid, are considered core international crimes. Second, the State is obliged to investigate and prosecute international crimes committed in South Africa. Finally, that obligation applies regardless of when the crimes were committed because there is no time limit on prosecuting international crimes. Powerful message Last month's ruling sends a powerful message that justice can prevail, even decades later. It came as a result of families' persistence, prosecutors who (finally) acted on the State's obligations, and a judge who fearlessly applied the law. Significantly, it charts a clear way forward for other courts to deal with crimes against humanity. The decision also strengthens the cause of South African organisations like the Legal Resources Centre, Foundation for Human Rights, Southern Africa Litigation Centre and Centre for Applied Legal Studies, which continue to advocate on behalf of families of victims of apartheid-era crimes. On 30 April 2025, following a lawsuit by survivors and victims' families, President Cyril Ramaphosa announced that the government would establish a commission of inquiry into allegations of political interference in efforts to prosecute these cases. Ultimately, justice should be for victims and their families, for whom healing often requires truth-telling and accountability. The Cosas 4 judgment's findings are precisely what the TRC's amnesty committee hoped for when it handed over 300 cases to the NPA in 2003 for further investigation. There are many other cases in the pipeline. These will not be without their challenges, but for now, one thing is clear (at least in law) — apartheid and apartheid-era crimes can still be prosecuted. DM Ottilia Anna Maunganidze is the Head of Special Projects at the Institute for Security Studies (ISS).
Daily Maverick
22-04-2025
- Politics
- Daily Maverick
Understanding the landmark court ruling on apartheid-era crimes
The ruling in the Johannesburg High Court paves the way for the prosecution of hundreds of apartheid-era crimes. This is how the judge reached his decision. In a landmark judgment against members of the apartheid security forces, the Johannesburg High Court has ruled that the state can prosecute apartheid-era crimes, because apartheid is a crime against humanity and there is no time bar on the prosecution of such crimes. The case concerned the criminal trial of Christiaan Siebert Rorich and Tlhomedi Ephraim Mfalapitsa facing charges of kidnapping and murder as crimes against humanity, and the crime of apartheid specifically. They were members of the Apartheid Security Branch charged with the kidnapping and murder in 1982 of the 'Cosas 4' – teenagers Eustice 'Bimbo' Madikela, Peter 'Ntshingo' Matabane, Fanyana Nhlapo and Zandisile Musi – who were anti-apartheid activists and members of the Congress of South African Students (Cosas). The prosecution of these crimes, however, was only initiated in democratic South Africa nearly 40 years later – in 2021. The accused made two main legal arguments. First, they argued that crimes against humanity only became offences in South Africa in August 2022 after the country ratified the Rome Statute and passed legislation to this effect. They argued therefore that these acts were not regarded as crimes in South African law at the time they took place. In terms of the Constitution, an accused has a right to a fair trial which includes the right not to be prosecuted for an act that was not a crime at the time it took place. They also argued that even if it were a crime, the power to prosecute lapsed after 20 years and to prosecute them 40 years later would violate their right to a fair trial. Finally, they argued that there had been political interference in their prosecution and that the charges were brought too late which denied them a right to a speedy trial without undue delay. The National Prosecuting Authority and the Legal Resources Centre, which was admitted as a friend of the court, argued that crimes against humanity including apartheid are a part of customary international law and that the Constitution requires courts to abide by international law. They said crimes against humanity originate from the prosecution of Nazi generals during the Nuremberg Trials after World War 2 and have become part of international law since then. They argued that apartheid is a crime against humanity because it involved inhumane acts committed as part of a widespread and systematic campaign against black civilians and opponents of the regime. The charges against Rorich and Mfalapitsa related to acts committed in furtherance of this objective, they said. The main questions the court had to consider were: Whether apartheid was a crime against humanity and thus a crime at the time the acts were committed; and Whether any attempt to prosecute such crimes had an expiry date. In his ruling on 14 April, Judge Dario Dosio noted that the Constitution explains that customary international law is automatically law in South Africa unless it is inconsistent with the Constitution. This means it is not necessary for South Africa to have formally signed and ratified a treaty concerning that law, nor is it necessary for Parliament to pass legislation to this effect. This approach had been confirmed by the Constitutional Court on several occasions, he said. Turning to apartheid, the judge defined it as a system of racial segregation and discrimination which was designed to maintain the domination of the white minority over the black majority. He pointed out that enemies of the state had been subjected to imprisonment, kidnapping, torture, police brutality and assassinations. The United Nations General Assembly had declared apartheid a crime against humanity in 1966. More importantly, in 1973, the Apartheid Convention came into effect – an international treaty which criminalised apartheid and sought its suppression and punishment worldwide. In democratic South Africa, the Truth and Reconciliation Commission confirmed that apartheid was a crime against humanity. The judge concluded that apartheid had been a crime against humanity for at least 79 years. Referring to decisions of the Constitutional Court, Judge Dosio said that it had been accepted that crimes against humanity under customary international law can be prosecuted in terms of the Constitution. Based on this logic, the court found that these constitutional provisions provided a pathway for the prosecution of crimes against humanity which occurred in South Africa before 1994. Turning to the question of whether there is a time bar date for prosecutions, he found that there was not. He referred to the Convention on Statutory Limitations which set out that there are no statutory limitations (expiry dates) on the prosecution of crimes against humanity. This convention dates from the aftermath of World War 2 when war criminals during the Nuremberg and Tokyo tribunals raised such arguments. The judge said that in other countries the courts had made a similar finding, that there was no expiry date for prosecution for crimes against humanity. These included Argentina, Australia, Canada, Chile, Estonia, Germany, Latvia, Spain, the US, Uganda and Uruguay. The Inter-American Court had come to the same conclusion. As a result, though South Africa is not a signatory to the Convention on Statutory Limitations, the judge found there can be no time bar for the prosecution of crimes against humanity committed in South Africa. Based on these findings he found no violation of the accused's right to a fair trial. Turning to the question of political interference and undue delay in the prosecution, the judge noted that it was regrettable that the National Prosecuting Authority had taken so long to prosecute apartheid-era crimes referred to it by the Truth and Reconciliation Commission. Despite this, he said, the interests of justice still required the prosecution of such crimes, given their gravity and impact on South African society both in the past and the present. The judgment paves the way for the prosecution of hundreds of apartheid-era crimes which were referred to prosecution by the commission. DM
