COSAS 4 suspects to be charged with 'crime against humanity' - FHR/Webber Wentzel

Organisation say apartheid was comprehensively criminalised by UN General Assembly in 1973

Historic Crimes Against Humanity Indictment in COSAS 4 Case

24 November 2021

The Director of Public Prosecutions (Johannesburg) has taken a momentous prosecutorial decision in the COSAS FOUR case, which significantly advances the cause of justice for apartheid-era victims. For the first time crimes against humanity charges have been included in an indictment in South Africa. Significantly, apartheid as a crime against humanity is included in the revised indictment against the accused in the COSAS FOUR.

Eustice ‘Bimbo’ Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi were members of the Congress of South African Students (COSAS) who were lured by the Security Branch to a pumphouse near Krugersdorp on 15 February 1987.  The police had rigged the pumphouse with explosives which they detonated once the four were inside.  All were killed except for Musi who was seriously injured.

A provisional indictment was served on TLHOMEDI EPHRAIM MFALAPITSA and CHRISTIAAN SEBERT RORICH when they appeared in the High Court, Johannesburg on Friday, 19 November 2021. The matter was postponed to 1 December 2021 to hear the outcome of Mr. Rorich’s application for State’s legal representation. It is hoped that the trial will take place in the first term of 2022.

Both accused face charges of kidnapping, crime against humanity of murder (read with section 232 of the Constitution), alternatively murder (read with sections 91, 92 and 258 of the Criminal Procedure Act) and the crime against humanity of Apartheid.

Crimes against Humanity

In respect of the crime against humanity of murder the State alleges that the accused unlawfully and intentionally killed the deceased as part of a systematic attack or elimination of political opponents of the apartheid regime, with knowledge of that attack. In respect of apartheid as a crime against humanity it is alleged the accused killed the deceased as part of an institutionalized regime of systematic oppression and domination, by one racial group over other racial groups, and with the intention of maintaining that domination.

It is further alleged that at all material times the planning and execution of the abduction and murder of the COSAS Four occurred as part of a systematic attack against political opponents of the apartheid regime, and which the international community condemned as the crime of apartheid.

The Constitutional Court has held that ‘international law obliges South Africa to punish crimes against humanity and war crimes, and that ‘the practice of apartheid constituted crimes against humanity.’[1] The Constitutional Court also confirmed that crimes under customary international law can be prosecuted directly under section 232 of the Constitution.[2]

Crimes against humanity have been prosecuted as crimes under customary international law since 1945, when they were first defined by the International Military Tribunal at Nuremberg. The Tribunal held that the term crimes against humanity ‘contains within itself the accumulated evil of the whole’.[3] 

Crimes against humanity are defined by a set of ‘inhuman acts’ committed in a particular context, namely as part of a widespread or systematic attack directed against any civilian population. In the COSAS Four case it is alleged that the perpetrators committed their acts as part of a widespread and systematic attack against black civilians and opponents of the Apartheid regime.

Apartheid was declared a crime against humanity by the UN General Assembly in 1966.[4] It was comprehensively criminalised under the Apartheid Convention in 1973.[5] The Truth and Reconciliation Commission (“TRC”) also found that apartheid, as a form of systematic racial discrimination and separation, constituted a crime against humanity and that between 1960 to 1994 the South African government and its security forces were the primary perpetrators.[6]

The South Gauteng Director of Public Prosecutions, Adv Andrew Chauke, and the lead prosecutor in the COSAS Four case, Adv Jabulani J. Mlotshwa, are to be commended for taking this groundbreaking and courageous step.

Background on Rorich and Mfalapitsa

Mfalapitsa is a former Askari. Rorich is a former explosives expert with the erstwhile Security Branch.  Both Mfalapitsa and Rorich were denied amnesty for the murders of the COSAS Four. Jan Carel Coetzee, Brigadier Willem Frederick Schoon (who authorised the operation) and Abraham Grobbelaar were also denied amnesty but died before they could face charges.

Rorich resigned from the police as a Lt Colonel on 30 March 1997. He was previously commander of the Security Branch in the Middleburg and Witbank regions. He was granted amnesty for the murder of Zweli-Banzi Nyanda and Keith McFadden in Mbabane, Swaziland. He was also granted amnesty for the murder of unnamed 2 persons (one a young child) at 2 transit houses in Swaziland in 1980. Rorich planted the devices that blew up the 2 houses. He was also granted amnesty for the murder of Bongani Gaga Zondi in Swaziland in 1988. He did not apply for amnesty for his alleged role in the abduction and torture of Joe Pillay in Swaziland on 19 February 1981. He did not apply for amnesty for allegedly authorising the burning of The Sacred Heart Church Hall in Witbank on 21 March 1988. He has to date not faced criminal charges in respect of these incidents.

Issued by Lindiwe Sibiya, Media and Communication Officer, FHR, 24 November 2021

[1] S v Basson 2005 (1) SA 171 (CC), para. 37.

[2] Section 232 of the Constitution provides that ‘customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’.  In National Commissioner v Southern African Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC) the Court stated that ‘crimes against humanity [are] criminalised under section 232 of the Constitution’ (para. 39).

[3] The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22nd August 1946 to 1st October 1946), p. 421.

[4] General Assembly Resolution 2202 (XXI) adopted on 16 December 1966.

[5] Convention on Suppression and Punishment of the Crime of Apartheid (1973).

[6]   TRC Report, Vol 5 Ch 6, Findings and Conclusions, at p. 222.