Forty years ago, three eager youths from Kagiso township met at a disused pump house near an abandoned mine outside Krugersdorp, excited that their uMkhonto we Sizwe contact — a trusted family friend recently returned from exile — was going to induct them into the armed wing of the ANC and SACP.

Their contact, Thlomedi Ephraim Mfalapitsa, had gone into exile in the aftermath of the June 1976 uprising which saw hundreds of youths undertake the perilous journey out of South Africa to sign up with liberation movements.

But “Weston”, as they knew him, turned out to be an askari working for the Security Branch death squad at Vlakplaas. He betrayed the youths. Three were killed and one was left seriously wounded. He died last year without ever seeing justice served on his betrayer.

Read more in Daily Maverick: “Time for justice for the Cosas 4: How the police blew up ‘4 kids with an idea’ in 1982”

On trial for murder — finally

Today, 40 years later, after decades of agony for the families of the “Cosas 4” — referring to the ANC-aligned Congress of SA Students — Mfalapitsa and his accomplice, former Ermelo Security Branch explosives expert Warrant Officer Christian Sievert Rorich, are finally preparing to go to trial for the murders.

This comes after high-level political interference in the National Prosecuting Authority (NPA) prevented it from prosecuting scores of cases recommended by the Amnesty Committee of the Truth and Reconciliation Commission (TRC).

But, the families of the dead argue, seemingly deliberate court delays by the police are pushing their decades-long pursuit of justice over the horizon. In August, Minister of Police Bheki Cele filed an application for leave to appeal against a court order that the SA Police Service should pay Rorich’s legal fees. This delays the trial even further.

Expectations around the trial are high as it is the first time that an accused is being charged with an international crime against humanity – that of apartheid. The accused also, in the alternate, face charges of murder.

Such charges are rarities as they are not considered “low-hanging fruit” like common murder, and require a muscular prosecutorial stance that often has to defy state reluctance to allow the incursion of the jurisdiction of international law, even though acceded to on paper.

Read more in Daily Maverick: “Former apartheid-era Security Branch officers charged with crimes against humanity”

Askari given military training

Back in 1976, Mfalapitsa was trained in Zambia, Tanzania and East Germany as an MK guerrilla. His military career was a failure — two infiltrations were aborted and he was captured by the Botswana police and sentenced to three-and-a-half years in prison. He had become deeply disillusioned with being forced to participate in actions “in which [ANC/MK] people were killed just for indiscipline and grievances”, he later told the TRC.

So, unknown to his friends back in Kagiso, Mfalapitsa defected from MK, but was caught by police on his return to SA in November 1981. He begged to be allowed to be debriefed and set free. But they refused and turned him in an askari — an apartheid agent — sending him to a farm called Vlakplaas on the Hennops River south of Pretoria. It was home to a shadowy Security Branch death squad called C1, then commanded by Captain Jan Carel Coetzee who reported to Brigadier Willem Schoon.

On returning to Kagiso, Mfalapitsa met Zandisile Musi, whose older brothers had gone into exile with him. Mfalapitsa was used by his C1 handlers to lay a trap for Musi and three friends — Eustice “Bimbo” Madikela, Ntshingo Mataboge and Fanyana Nhlapo, who wanted to join MK. 

A tragic betrayal

The pump house to which Mfalapitsa and another notorious C1 askari, Joe Mamasela, took them in a kombi on 17 February 1982 had been rigged with explosives by Rorich, Mfalapitsa later told Captain Coetzee’s TRC hearing. 

He left the youths in the pump house on the pretext of fetching weapons from the kombi — then Rorich detonated the explosives. Madikela, Mataboge and Nhlapo were killed and Musi seriously wounded. Coetzee admitted at his hearing that the victims were just “four kids with an idea” and that his plot was “not a legal order”.

Musi died last year without being able to testify, and now the Foundation for Human Rights (FHR) and the victims’ families have warned that the Cosas 4 case and at least one other — that of Daveyton youth leader Caiphus Nyoka, executed at home by a police death squad on 24 August 1987 — are under threat as the SAPS refuses to pay for the defence of the accused.

Legal fees for apartheid killers

Taxpayer-funded legal support for alleged apartheid killers remains controversial among many survivors. But if, as Coetzee admitted in the Cosas 4 case, such men were acting under the orders of superior officers, the state does bear responsibility for their defence.

And the ageing accused themselves — Mfalapitsa is now a pastor, riven with regret by his deeds, according to filmmaker David Forbes who has written about the case — are owed their day in court as much as their victims’ families who have waited so long for justice.

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In September 2019, Johan Marais, the Security Branch sergeant who shot Caiphus Nyoka in the head 35 years earlier, attempted suicide in shame at his cold-blooded assassination of the youth. While recovering in hospital, the white-haired, 60-year-old Marais confessed to police and Rapport journalist Dawie Boonzaaier that he had pulled the trigger. He and two others, Abraham Hercules Engelbrecht and Leon Louis van den Berg, now face murder charges.

In the Cosas 4 case, the FHR, Madikela’s sister Maide, nephew Thabiso Selebi and Nyoka’s sister Alegria decried the fact that, despite a June court order that the police must pay Rorich’s legal fees, they had failed to do so, had failed to apply for a review of the order in the given time, and that their counsel had failed to appear in court in July to explain their non-compliance.

Cele fights court ruling

Bheki Cele’s papers argued that the court erred in ruling on an administrative decision by the SAPS, the reasons for which the court was unaware, and that “the charges clearly and indisputably do not fall within the normal execution of police duties by a police officer” who had retired in 1987, and that Rorich could rather apply for legal aid — or apply to the police to review their decision.

But on Tuesday, 11 October, Maide Selebi will argue in papers that Cele and the police are in contempt of court for defying the court order. Her point is buttressed by a 2016 high court ruling that made a precedent by setting aside a decision by the SAPS refusing to fund the defence of former Security Branch members charged with the abduction, torture and “disappearance” of MK operative Nokuthula Simelane in 1983.

Selebi will argue that the crimes against humanity and of apartheid charges actually fall squarely within the murderous remit of the benighted Security Branch.

In the Nyoka case, another court is due to hear on 6 February 2023 whether the police will pay for the defence of Marais’ co-accused Engelbrecht and Van den Berg — but the families fear that in line with the Cosas 4 case, they will refuse. In that case, too, the National Prosecuting Authority may decide to add crimes against humanity charges against the accused.

Moray Hathorn is the pro bono Webber Wentzel counsel for two of the Cosas 4 families and the Nyoka family. Hathorn says “there is room to say that the police are really intentionally delaying these matters” — perhaps because they are short of money, or are still trying to suppress such prosecutions.

The FHR and the families noted with alarm that delays caused by the police in the Simelane murder trial — the long legal wrangle over the police refusal to pay the accused’s legal fees — had seen two of the accused die of old age in the years since the indictment was issued in 2016.

They said such obstructionism by the police amounted to “an abuse of the court process [that] has seriously undermined the cause of justice”. DM

Michael Schmidt is a veteran investigative journalist who writes on transitional justice issues. His last book, Death Flight (Tafelberg, 2020) revealed the ultra-secret negotiations over 1997-2003 between ANC cabinet ministers and former apartheid police and defence force generals allegedly aimed at preventing prosecutions flowing from the TRC.