COSAS Four: Families say they could die before seeing justice after more delays in 40-year-old case

JOHANNESBURG - A former askari who’s been charged in the COSAS Four case says he had “no control” over what happened that fateful day.

This is contained in court papers Tlhomedi Mfalapitsa has filed challenging the Truth and Reconciliation Commission’s (TRC) decision to refuse him amnesty.

In February 1982, Congress of South African Students (COSAS) supporters Eustice Madikela, Ntshingo Mataboge, and Fanyana Nhlapo were killed in a bomb blast at a pumphouse in Krugersdorp, after it was rigged by the apartheid police.

Their comrade, Zandisile Musi, was also injured.

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Two men have now been charged over the crime: Christiaan Rorich, a former police officer, and Mfalapitsa, who was an informer or ‘askari’.

Their trial was meant to get underway in the High Court in Johannesburg on Tuesday but has now been postponed, in part for Mfalapitsa’s challenge to be dealt with.

In the papers, Mfalapitsa argues that the TRC’s final decision “failed to consider the volatile conditions that existed at the time” of the events in question, as well as that it “failed to consider [his] position as an askari who had just returned from exile”.

According to Mfalapitsa, the TRC “misdirected itself” in treating him as someone who “had some authority or any powers” in terms of which he could have been expected to save those who lost their lives that day.

He insisted he had “no control over” what happened, and argued further that the people whose call it was, and who he said inserted him into their plans, had died.

He wants the TRC’s decision reviewed and set aside and replaced with a minority decision, which held that those implicated in the case should have been granted amnesty.

In the interim, he also wants the prosecution interdicted from moving ahead with the case.

‘EVADING JUSTICE’

But the families of the COSAS Four have slammed Mfalapitsa’s challenge as nothing more than “a last-ditch attempt to evade justice”.

They have applied to intervene in Mfalapitsa’s challenge, and in their papers said they should have been joined from the outset, and that it’s necessary now “to prevent a grave injustice from unfolding”.

They argue that the challenge, brought more than 20 years after the decision at which it takes aim was made, and on the cusp of the start of the trial, is a “gross abuse of the court process”.

In the two or three years they estimate it would take to finalise, they say the already elderly accused “may die or become medically unfit to stand trial”.

They also argued that further delays in the matter, which has already dragged on for more than 40 years in total, “may … permit the accused to escape justice”.

BREACH OF FAIR RIGHTS

Former apartheid police officer Rorich wants the court to find that some of the charges he’s facing have in fact now lapsed.

Among the charges the accused face are crimes against humanity, of murder and apartheid.

It’s the first time in South Africa’s history that these charges have been instituted against anyone.

But Rorich argued that they had in fact now prescribed in terms of the Criminal Procedure Act, which did not allow for most crimes to be prosecuted more than 20 years after they were committed.

It does, however, make exceptions for serious crimes, including crimes against humanity. However, it refers to those levelled under the International Criminal Court Act.

And in the current case, they’ve instead been levelled in terms of the Constitution.

In the circumstances, Rorich argued that his prosecution on these charges would be in breach of his fair trial rights.