The judge in the world’s first-ever trial for the crime of apartheid will rule next Wednesday on whether he should recuse himself because he knew that the two accused former security policemen, who blew up four youths in 1982, were refused amnesty by the Truth and Reconciliation Commission (TRC).
Judge Dario Dosio heard argument in the Johannesburg high court on Wednesday from counsel for former Vlakplaas askari Ephraim Mfalapitsa — once number three to uMkhonto we Sizwe chief Joe Modise — and former security branch explosives expert Christiaan Rorich, why he should turn the imminent trial over to another judge.
The two accused were among five apartheid policemen denied amnesty at the TRC in 2001 for luring Congress of SA 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. The other three accused have since died.
On Monday, Dosio issued his historic ruling that state prosecutor Hlengane Ngobeni could proceed to trial against the accused with the crime against humanity of apartheid, and the crime against humanity of murder as main charges, alongside the attempted murder charge relating to Musi.
Rorich’s counsel, advocate Jaap Cilliers, immediately gave notice of his intent to apply for Dosio to step aside for another judge to try the case. Advocate Innocent Mthembu for Mfalapitsa followed suit the next day.
The case is highly unusual for being the first time a judge anywhere in the world has allowed prosecution for the crime of apartheid.
Thanks to the accused’s hearing before the TRC’s amnesty committee a quarter of a century ago, what was actually done and by whom on that night back in 1982 is well known — in granular detail.
Yet, Mthembu argued before Dosio on Wednesday, he was not concerned about what might be known about the case by the public — but he was worried that advocate Howard Varney, appearing as amicus for the victims’ families, had told Dosio in court last November that the accused had been refused amnesty by the TRC.
Cilliers agreed, arguing that this possibly “malicious” submission by Varney meant the judge had been made “aware of the fact that he [Rorich, and by implication, Mfalapitsa] admitted to committing these offences,” before the TRC, and was now facing the exact same offences; and so Dosio’s “mind might be clouded”.
In addition, Cilliers argued that prosecutor Ngobeni had denied Rorich the right to a defence by counsel of his choice by failing to negotiate with Cilliers on his availability for trial, and that as a result alternative senior counsel had had to be briefed, should the judge decide the trial proceed “come hell or high water”.
Ngobeni admitted that he had only consulted the authority who planned the court roll on suitable trial dates, but riposted that neither defence counsel had asked for Dosio’s recusal when they had known since at least January last year that the judge was aware of the amnesty refusal.
In fact, he argued, the mere knowledge that the accused had been denied amnesty had imparted no evidence to Dosio: “Nothing was disclosed with regard to proceedings at the TRC.”
He claimed the accused’s “last-minute strategy” of recusal “amounts to a thinly veiled attempt to disrupt and prolong the trial,” an accusation that Cilliers denied.
The sole survivor of the bombing, Musi, died without seeing justice on June 28 2021. His sister Nomandlovu Mokgatle told Business Day: “He could have been here; this repeated delay is just playing us.”
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