South Africa

South Africa

An apartheid murder reckoning (part II): Jury still out on NPA’s courage

With municipal elections looming, a bold showing by the NPA on the first trial day of the 1983 torture and disappearance of Nokuthula Simelane could’ve scored the ruling party some points. But that didn’t happen. What happened instead was more of the same: more obfuscation, more delays, more doubts about whether apartheid-era security operatives will ever be brought to book. By KEVIN BLOOM.   

 Justice delayed is justice denied.

We can’t put that statement in quotes because we don’t know who said it—and it’s possible that we don’t know who said it not because it’s so old (which it is) but because it’s so obvious (which, obviously, it also is). Either way, and perhaps proving both points, the claims on the statement’s provenance run from a Mishnaic rabbi of the first century CE (Pirkei Avot 5:7); to the redactors of the Magna Carta of 1215 (clause 40); to William Penn, founder of the American colony of Pennsylvania, in the late seventeenth century; to William Ewart Gladstone, four-time British prime minister, in the mid-nineteenth century; to Martin Luther King in his “Letter from a Birmingham Jail” in 1963; to US chief justice Warren E Burger in an address to the American Bar Association in 1970.

The statement below, on the other hand, we can put in quotes.

“If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected—those, precisely, who need the law’s protection most!—and listens to their testimony.”

That’s James Baldwin in The Price of the Ticket, a collection of four decades’ worth of the great author’s writings on race in America, published in 1985.

And so now, stuffing these two statements in our knapsack, let’s take a light-speed journey through the courtrooms of time and space. Let’s search, as we go, for those courtrooms in which the two statements conjoin, the courtrooms where policemen, lawyers, judges and protected members of the middle class have all come together in the interests of delaying justice. Let’s pass quickly through the countless courtrooms in which this has happened in other times and places, and land, if we can, in a courtroom that presents the most sublime example of the aforesaid in our own time and place.

Welcome to court GD of the North Gauteng High Court, Republic of South Africa, 22 years after the fall of the regime that was responsible for perpetrating what the United Nations has deemed a “crime against humanity”. In this very same courtroom, a world famous athlete with no legs was tried for the murder of his girlfriend—and it was here that he was eventually sentenced, in July 2016, to all of six years in prison. But as blatant as that particular assault on our legal system was, it is for an entirely more injurious assault that we find ourselves in courtroom GD.

As Daily Maverick reported on 17 July 2016, the North Gauteng High Court was due to play host on 25 July to the trial of former apartheid police operatives Willem Coetzee, Msebenzi Radebe, Anton Pretorius and Frederick Mong, who are accused of the murder in 1983 of Nokuthula Simelane, with Radebe answering for the added charge of Simelane’s kidnapping. As we also reported, this was to be the first real prosecution of an apartheid-era political crime since 2007, a major test of the government’s obligation to bring to trial perpetrators who were denied amnesty by—or who did not apply for amnesty from—the Truth and Reconciliation Commission. Above all, we observed, it was a chance for the prosecution authority to show that while less than a handful of mid-level functionaries had faced justice since 1996—take a bow, monsieurs De Kok and Basson—such blanket impunity wasn’t going to fly in the future.

Sure, it was never going to be straightforward. To refresh your memory, the only reason that the National Prosecuting Authority had agreed to indict the four was because Simelane’s sister, Thembi Nkadimeng—the current mayor of Polokwane—had brought an application to the High Court in May 2015 to force the NPA’s hand. And why did the NPA need to be “forced” into doing its job? Because, according to the testimony of former chief national prosecutor Vusi Pikoli, who quoted in his sworn affidavit the words of ranking ANC cabinet ministers, any prosecutions of apartheid-era crimes “could open the door to prosecutions of ANC members.”     

There were many other statements to this effect that the Daily Maverick didn’t cite in the first article, for instance the supporting affidavit in the Nkadimeng application of Dumisa Ntsebeza, former president of the Black Lawyers Association and member of the Judicial Service Commission, which lamented the “shameful lack of political will to deal with the issues of reparations and accountability for the apartheid-era victims of gross human rights violations.” Or the supporting affidavit of Anton Ackermann, former head of the all-important Priority Crimes Litigation Unit (PCLU) in the NPA, who said he was “effectively stopped from pursuing the investigation and prosecution of the so-called political cases arising from South Africa’s past.” Or the supporting affidavit of Alex Boraine, former deputy chair of the TRC, which “noted with despair that the South African Police Service (SAPS) and the NPA have done very little to pursue those cases in which amnesty was denied or not applied for.”   

It would seem, then, that the “policemen” part of the James Baldwin quote has been dealt with—assuming that the “members of the middle class” are the four accused in the Simelane matter, that just leaves it for us to look at the “lawyers” and the “judge”, and to consider how justice has been further delayed. Before we take our seats in the empty gallery of courtroom GD, however, we may want to cast our eyes on a certain passage from Thembi Nkadimeng’s founding affidavit

“My sister disappeared more than 30 years ago and the investigation docket has been in existence for some 18 years,” she testified in paragraph 70. “The docket has been with the NPA for nearly 14 years and with the PCLU for some 11 years.  It was referred to Advocate Chris Macadam in the PCLU in 2010 and has been under his control for some four years. It appears from correspondence received from the SAPS and the NPA during 2013 that here has been little or no investigation for the bulk of all these time periods. There can be no doubt that the delays have seriously undermined the prospects not only of a successful prosecution, but also the prospects of getting to the truth and recovering of Nokuthula’s remains.”

* * *

Thus informed, we come at last to our destination: the gallery of courtroom GD at 10.20 AM on 25 July 2016, where we are listening to Advocate Johan Gaum, who represents the three white accused, tell Judge Nomonde Ngqibisa-Thusi that SAPS are still debating whether or not to pay his clients’ legal fees. Apparently, although the police chiefs have already refused to foot the bill, they’ve been asked to reconsider. They couldn’t have reconsidered before the start date of the trial? This question the judge does not ask. So the case docket has been with the NPA since 2001, but a further postponement is necessary? This question the judge also does not ask.   

And neither does the NPA’s assigned prosecutor, Raymond Mathunja—who’s case load includes the controversial Robert McBride and Glynnis Breytenbach matters—point out such inconsistencies. What Mathunja does say, after remarking that the NPA are ready to proceed with the trial, is the following: “This is an old matter and most of the witnesses and the accused themselves are of advanced age.”

If Thembi Nkadimeng and the rest of Nokuthula Simelane’s family were in the gallery, we might’ve been able to catch a facial expression. But not a single family member is present—presumably because they’d been informed that another delay was a fait accompli. In the event, the judge postpones the trial to 20 September 2016, although it appears that not even this date is going to see a start to the case. Seems there’s been an application by the accused to make parts of the prosecution’s docket available to them, and that’s what we’ll be hearing come September.

In 25 minutes, everyone is out the court. Daily Maverick makes a beeline for Advocate Gaum, with the aim of asking what appears to be the most pertinent and pressing question.

“Do you have any idea why SAPS are refusing to foot the bill?”

“Yes I do,” he says.

Advocate Gaum is a big man, at least a foot taller than the Daily Maverick’s correspondent, and twice as heavy. Like the accused, he is also a veteran of the apartheid-era police, having served in the force from 1977 to 1999, rising to the rank of colonel. He seems happy today; Daily Maverick waits a few moments for him to continue.

And another few moments.

“Could you, um…”

“No I can’t,” he smiles.    

Gaum’s reluctance is understandable. The only ground to deny legal support would be if the accused had not been acting in the course and scope of their employment with the police. The SAPS of today no doubt claim that illegal practices such as abduction, torture and murder have never been part of official policing duties. It’s likely, if not downright certain, that security branch veterans of the 1970s and ‘80s would barely be able to contain themselves in the face of such a claim.   

Gaum advised the court that if SAPS does not budge on the legal fees, his clients will go to court to compel the police to pay. Meaning, the thing could wind its way through three courts before it is resolved. At this stage in the Simelane matter, 33 years after the disappearance and 18 years after the opening of the case docket, the judge is the family’s—and yes, the country’s—last real hope. The question as to whether she’ll accept another delay on 20 September could be dependent on a deeper question, one it’s just not polite to ask about a judge.

But here goes: Is she for Baldwin’s “unprotected”, or is she for the status quo? DM

Photo: Nokuthula Simelane was kidnapped, tortured and disappeared by apartheid forces in 1983.

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