Landmark ruling enables justice for SA’s apartheid-era crimes
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.
The five alleged perpetrators worked for the apartheid state at the time and were linked to the incident decades ago following revelations at the 1999 Truth and Reconciliation Commission (TRC). Yet, it wasn’t until 2021 that two of them were indicted – Christiaan Siebert Rorich and Tlhomedi Ephraim Mfalapitsa. The other three have since died.
This will be the first time that apartheid, as a crime against humanity, is prosecuted anywhere in the world
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 over 20 years ago.
The Johannesburg High Court 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 João 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 high court decision paves the way for other prosecutions of crimes against humanity in South Africa
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.
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.
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.
In 2003, the TRC’s amnesty committee handed over 300 cases to the NPA for further investigation
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, 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 judgement’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.
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