Landmark apartheid cases move towards court

Apartheid-era criminal cases referred for criminal prosecution by the Truth and Reconciliation Commission (TRC) are slowly edging towards court as an NGO, the Foundation for Human Rights, keeps up the fight for justice. Three of the 22 cases the foundation is working on – the murder, kidnapping and torture of Nokuthula Simelane, sister of Justice Minister Thembi Simelane; the Cosas Four attack; and the murder of student activist Caiphus Nyoka – are already before court. The inquest into the Highgate Pub massacre in East London in 1993 has been scheduled for January next year, while the judicial inquiry into the deaths of the Cradock Four is set for June. The Sunday Times reports that the foundation’s ‘unfinished business of the TRC’ project focuses on criminal accountability for individuals who did not apply for or were not granted amnesty. Project officer Mosa Leteane said the foundation works with law enforcement and pro bono lawyers across SA. In the Cosas Four case, now being heard in the Gauteng High Court (Johannesburg), former Vlakplaas askari Thlomedi Mfalapitsa and ex-apartheid police officer Christiaan Rorich are being prosecuted for the 1982 plot in which three activists were killed and one severely wounded. Both are charged with committing a crime against humanity. They are alternatively charged with murder.

The UN’s 1973 Apartheid Convention declared apartheid a crime against humanity and said ‘inhuman acts resulting from the policies and practices of apartheid, as well as similar policies and practices of racial segregation and discrimination, are crimes violating the principles of international law’. SA only acceded to the convention in June this year. Should the crime against humanity charges proceed and convictions follow, the court will be guided by sentencing guidelines for serious crimes such as murder and kidnapping, which carry jail terms that generally vary between five and 25 years. While more than 100 countries have acceded to the UN law, no-one has been charged under it. As Mfalapitsa is the first accused in the case, he is the first person in the world to be charged with the crime of apartheid. Asked why the National Prosecuting Authority (NPA) had used this charge, NPA Gauteng spokesperson Phindi Mjonondwane said Mfalapitsa and Rorich are charged under the doctrine of common purpose, ‘and therefore the actions of each can be attributed to (both) of them’. The accused have challenged the charge sheet and argue that the state’s right to prosecute a crime that took place more than 40 years ago has lapsed. The Sunday Times notes that Leteane said a ruling by the court allowing the use of the apartheid charge would help the foundation’s project and get ‘apartheid recognised as an international crime against humanity by SA courts’.

Full Sunday Times report