Court turns down amnesty bid in COSAS 4 murders

Families of anti-apartheid martyrs, the COSAS 4, have lamented the slow wheel of justice, 30 years into democracy, after the Gauteng High Court dismissed suspect Thlomedi Ephraim Mfalapitsa’s bid for amnesty.

Mfalapitsa had approached the court to set aside a 2001 decision by the Truth and Reconciliation Committee (TRC) which refused his application for amnesty. The refusal was in relation to his alleged role in the murder of the COSAS 4.

The case involves the deaths of Eustice “Bimbo” Madikela, Peter “Ntshingo” Matabane, Fanyana Nhlapo, and the severe injury of Zandisile Musi on February 15, 1982 at the hands of the apartheid security police.

The court notes that Mfalapitsa was allegedly a foot soldier, or “askari”, in the apartheid security branches “death squad” called Vlakplaas. The boys had been members of the Congress of South African Students (COSAS), an organisation affiliated with the then-banned ANC.

Mfalapitsa had lured the boys to a mine under the guise that he would train them to carry out acts of resistance.

The building had been rigged with explosives, and the boys were made to believe they would be trained in how to use them.

It is alleged Mfalapitsa instead locked the four teenage boys in a building on the abandoned mines.

According to court documents: “He told the boys to wait in the building while he fetched equipment. Once he had locked the door, Mfalapitsa ran.

That was the signal for a Mr. (Christiaan Siebert) Rorich, who is not a party to these proceedings, to detonate the explosives. Three of the boys were killed instantly. The fourth, Zandisile Musi, survived with life-changing injuries, but has died in the years since the explosion.”

During the Truth and Reconciliation Commission (TRC) hearings, Mfalapitsa and his co-accused were refused amnesty for their part in the murder.

There, Mfalapitsa admitted his role in the murder, and sought to persuade the committee that his conduct had a proportionate link to a political objective.

However the amnesty committee was not convinced that such a link existed.

His application was subsequently denied on May 29, 2001.

Along with his co-accused Christiaan Siebert Rorich, they face charges of kidnapping, murder, and crimes against humanity. With a trial coming up next month, the court contends it left Mfalapitsa vulnerable to prosecution.

On the review application, Judge Stuart Wilson found: “Mfalapitsa’s review was instituted on 11 July 2022, over twenty-one years after the amnesty committee published its decision, and well over twenty years after the period for instituting a PAJA (Promotion of Administrative Justice Act) review of that decision expired.”

He ultimately ruled that the amnesty committee’s decision was “reasonable, factually accurate and entirely consistent with the applicable law. The review application must fail”.

The COSAS 4 families welcomed the court’s decision.

“It’s been 42 years since the tragic bombing, and 30 years into our democracy we are still waiting for justice. The fact that it’s been three years since the matter was enrolled in court, the defence has been very successful in employing delay tactics.

“In some cases in contempt of court without any consequences gives us enough reason to exercise caution in our celebrations of today’s victory. We welcome the court judgment on the review and await the start of the trial as a major milestone in our 42 years journey,” the COSAS 4 families said in a statement.

“We believe the court rightfully upheld the TRC Amnesty Committee’s decision that the murders of the COSAS 4 were not proportionate to the political objectives claimed by Mr. Mfalapitsa. It was Mr. Mfalapitsa who told the boys that he would train them, escalated the COSAS 4 into a position of perceived threat, and thus created the very justification for their murder.”

Foundation for Human Rights said the judgment was a significant step toward accountability and justice.

“The decision affirms the rule of law and underscores the importance of holding individuals accountable, even decades after the crimes in question.

It establishes a powerful precedent, demonstrating that justice systems can and will act in the pursuit of truth and fairness”.

Cape Times