The Pretoria high court erupted with cries of “Long live the undying spirit, Caiphus Nyoka, viva!” on Thursday as self-confessed apartheid killer policeman Johan Marais was imprisoned for 15 years for gunning down the 23-year-old East Rand activist in cold blood almost 38 years ago.
The sentence, handed down by judge Mokhine Mosopa on the 66-year-old Koevoet and Reaction Unit veteran who had joined the police at the age of 16, is the first success in a new slew of trials of former apartheid security force members alleged to have committed gross human rights violations — but left untried for two decades in the wake of the Truth and Reconciliation Commission (TRC).
Nyoka, a leader of the ANC-affiliated Congress of SA Students (Cosas), had been fingered by the Security Branch as a “terrorist” supposedly involved in a plot to blow up the local police station and the Daveyton mayor’s house, so Maj Leon Louis van den Bergh of the East Rand Security Branch allegedly ordered his swift execution.
Instead, Marais claimed in his guilty plea last November that Van den Bergh ordered Nyoka be arrested in the early hours of August 24 1987, and fellow policeman Sgt Pieter Stander had ordered Nyoka’s killing, which happened after Sgt Abram Hercules Engelbrecht left the room.
Wearing balaclavas, Marais and, allegedly, Stander, who is standing trial separately with Van den Bergh and other policemen, pumped twelve bullets into the youth’s head, neck and chest as he lay half-dressed in bed.
He was unarmed, despite successful police claims at the 1988 Nyoka inquest that he had a weapon.
Mosopa ruled that premeditated murder was a more likely scenario, given the many police units that cordoned off the roads leading to the house.
The judge said he hoped Marais would reconsider his decision not to testify against his former colleagues. Marais had previously told Business Day that some of the other accused had visited him at his home — against instructions by prosecutors — and were “not happy” with his confession in which he had fingered them.
The TRC’s recommendations in 2003 that about 300 cases, including that of Nyoka, be further investigated was sabotaged by a conspiracy in which presidents Thabo Mbeki and Jacob Zuma and a select group of cabinet ministers met police and army generals from 1998 to 2003 to prevent post-TRC prosecutions.
That conspiracy and subsequent cabinet interference in the National Prosecuting Authority’s attempts to prosecute apartheid-era perpetrators is now at the heart of a R167m constitutional damages claim against the state by survivors and families of victims of apartheid.
Though, unlike the ongoing “Cosas 4” case in which an askari and former policeman are charged with the international crime of apartheid, Marais was not similarly charged. Still, Mosopa read out key sections of the 1973 apartheid convention in his judgment.
Mosopa said that though Marais been “exposed to serious violence and trauma” during his time in Koevoet on the border and later in the police, he had not taken the opportunity to confess his crime during the TRC twenty years ago.
The court was unconvinced that his belated confession in 2019 after a botched suicide attempt, nor a letter to the Nyoka family in January this year begging for forgiveness, demonstrated remorse.
“The right to life of the deceased was taken away,” Mosopa concluded, “in pursuit of a policy that was declared a crime against humanity by the UN”, and which was so at the time of Nyoka’s assassination.
“It is unfortunate that the political heads of your time are not standing trial today,” the judge said.
Marais had told Business Day he was resigned to jail time, but his Legal Aid-appointed defence advocate Sanet Simpson said after Thursday’s sentencing she may appeal as “15 years is too severe”.
A crowd of family members and supporters wearing ANC-tricoloured T-shirts chanted and sang Nkosi sikelel’i-Afrika after the sentence was read out.
“This T-shirt I am wearing is from 1987 and was given to me by my father, Moses Nyoka,” one of the murdered youth’s sisters, Malene Nyoka, told Business Day just after Marais was taken downstairs to the cells to begin serving his sentence.
“He told me before he passed that I would wear it one day when we got justice for Caiphas,” she added tearfully.
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