The Cosas 4 case has been postponed to January 2024. Image: iStock
The Cosas 4 trial which finally went to court on Monday, has been postponed to January 2024 to allow the Southern African Litigation Centre (SALC) to file papers to be admitted as amicus curiae.
Zaid Kimmie, the Executive Director of the Foundation for Human Rights, expressed a measured sense of hope regarding the trial’s eventual progression in January.
“While we are very disappointed with the postponement, we are glad that dates have been set for October to decide whether the amicus parties will be allowed to intervene, and the trial will proceed in January.
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“The defence team have raised no further objections to these dates, so there is reason for cautious optimism that the trial will proceed,” he told the media.
Kimmie was speaking to Jacaranda FM, addressing yet another setback that has beset the case.
It has been four decades since the brutal murder and kidnapping of three of the Cosas four and the attempted murder of one took place in Krugersdorp.
On 15 February 1982, four young students, namely Eustice Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi were blown up by members of the Security Branch of the apartheid police.
The attack took place in an old pump house on a deserted mine property.
According to David Forbes, a documentary filmmaker, writer and activist, the four determined youths from Kagiso township aimed to combat apartheid by seeking refuge in exile.
The youth were affiliated with the Congress of South African Students (Cosas) in the 1980s, an organisation that fought apartheid and championed education
Unknowingly, they approached a supposed family friend, in Thlomedi Ephraim Mfalapitsa (the first accused), who was a Umkhonto weSizwe operative, but became an askari and was soon working as a spy for the apartheid police.
This supposed ally was said to have betrayed them, luring them into a deadly police trap (allegedly helped to be set up by former bomb expert and security branch officer, Christiaan Rorich- the second accused) that resulted in the deaths of three individuals.
The sole survivor of the ordeal, Zandisile Musi, would later be known as one of the Cosas 4 and tell their story.
Despite the harrowing tale and the evidence revealed by the Truth and Reconciliation Commission (TRC), the ANC government chose not to prosecute the implicated police officers.
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Mfalapitsa had, during the TRC proceedings, told of his own ordeals as a Umkhonto weSizwe operative as well as the torture regimes he underwent when he was captured and of how he was forced to turn askari, which might have led government to the decision.
Meanwhile, families, activists, and concerned citizens continued to fight for justice, pushing for the prosecution of those responsible.
Recently, families initiated a 2020 application for the exhumation of the bodies, hoping to facilitate forensic examinations and future prosecutions, but were met by a sense of reluctance from the National Prosecuting Authority.
It is believed that the NPA lawyers’ hesitancy to pursue justice likely stems from factors such as the passage of time, challenges related to evidence and legal procedures, political sensitivities, allocation of resources, and the intricacies of the case itself.
Fortunately, in 2019, law firm Webber Wentzel took over the case on behalf of the families, collaborating with the NPA and the police.
Sadly, Musi passed away in 2021 from Covid.
However, in a semblance of triumph, the case was scheduled to be heard in court on Monday, 22 August 2023. But was postponed again to January.
The family has told the media that they intend to continue in the fight for justice following Musi’s death.
Legal expert, Richard Chemaly, believes they should be able to do just this, regardless of how much time has passed.
“We have no statute of limitations when it comes to crimes.
“A good example is the conviction of Bob Hewitt back in 2015 for crimes committed in the decades before.
ALSO READ: Families of Cosas 4 apply for bodies to be exhumed, NPA says its premature
“From a legal perspective, time is not the primary stumbling block. Practically, with time, evidence starts to fade and that is the biggest effect time will have,” he said.
Chemaly explained that the legal difficulties in this matter are less a matter of time and more a matter of the lack of precedent.
“It will be the first time using a combination of section 232 of the Constitution and international laws relating to crimes against humanity with specific reference to apartheid and murder.
“This effectively means that it will be an innovative case. It also means that it’s likely to set an important precedent regardless of which way the case goes,” he concluded.
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