In a global precedent-setting decision, the Johannesburg high court on Monday ruled that two apartheid policemen accused of blowing up four youths 43 years ago can be prosecuted for the first-tier international crime of apartheid.
Former Vlakplaas askari Ephraim Mfalapitsa and former police security branch explosives expert Christiaan Rorich were denied amnesty at the Truth and Reconciliation Commission (TRC) in 2001 for luring Congress of South African Students (Cosas) members Eustice “Bimbo” Madikela, Peter Mataboge, Fanyana Nhlapo and Zandile Musi into an explosives-loaded trap that killed all but Musi on February 15 1982.
Judge Dario Dosio shot down the argument of Rorich’s defence counsel, Adv Jaap Cilliers, that the international crime of apartheid, first codified by the UN in 1973, cannot apply as the Apartheid Convention was not signed by SA until May 2024, decades after the killings.
Adv Howard Varney, appearing for the families of the dead, had argued that such international crimes, alongside genocide, war crimes and other crimes against humanity, formed part of international customary law. These, notably, did not require states to sign or to pass their own enabling legislation, because they were agreed to be crimes by the community of nations.
Dosio agreed that the crime of apartheid was already a crime under customary international law when the crime was committed, apartheid SA’s refusal to sign the convention notwithstanding.
Though the Apartheid Convention has been considered by some to be defunct since the ending of apartheid, it applies to any country: the 1977 addition of Protocol I to the Geneva Convention on warfaring — which apartheid SA also refused to sign — named apartheid as a grave breach, and the 1998 Rome Statute establishing the International Criminal court regards the crime of apartheid as a crime against humanity.
As such, Dosio’s ruling has far-reaching implications for the likes of Israel regarding the Palestinians, Sri Lanka regarding the Tamils and Myanmar regarding the Rohingya.
The “Cosas Four” case represents the front line in a complex moral war between those like the Foundation for Human Rights (FHR) with its R167m constitutional damages suit against the National Prosecuting Authority (NPA) for failing to prosecute perpetrators of apartheid-era atrocities, and those like the Foundation for Equality Before the Law (FEBL) which tries to defend apartheid state-employed accused.
Former president Thabo Mbeki and his then justice minister Brigitte Mabandla have asked to be added as respondents in the damages case as the applicants accuse them of suborning the independence of the NPA to prevent prosecutions flowing from the TRC.
The constitutional damages case and the 19 TRC cold cases, which the NPA says it is now reviving, have put the fox in the hen house of former apartheid security officers. Yet both the FHR and FEBL lament that the state refuses to pay for the defence of retired officers.
There is only one point of agreement between the opponents: Rorich’s defence has asked for Dosio to recuse himself, and argument will be heard on Wednesday.
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