Last week the High Court handed down an important judgment that will have an effect on justice for apartheid era crimes in South Africa. After seeking closure for over 30 years, Nokuthula Simelane’s family is finally one step closer to what has seemed elusive and unattainable for so long- justice for their slain anti-apartheid heroin.

Nokuthula Simelane was a 23-year-old university student who acted as courier for the armed wing of the ANC, Umkhonto we Sizwe. On September 8, 1983, she was kidnapped by the apartheid police, then known as the South African Police.

Nokuthula was brutally tortured and beaten to the point of being unrecognisable. She was never seen again. In 1996 a police docket was opened and subsequent TRC proceedings revealed who her abductors and suspected murderers were. Amnesty for her abduction was granted, yet no one applied for amnesty for her murder. Amnesty for her assault and torture was denied. By law, those who were denied amnesty or failed to apply for amnesty remain liable for prosecution.

After years of Nokuthula’s family engaging with the National Prosecuting Authority (NPA), requesting an inquest into Nokuthula’s unlawful killing or a decision for prosecution to be made, the NPA and its various leaders since 1996 failed to act. Only after legal papers were filled by Nokuthula’s sister and Mayor of Polokwane Thembi Nkadimeng, in May 2015, seeking to compel the NPA to either refer the disappearance of Nokuthula for an inquest or to make a decision with regard to prosecution, did the NPA take action. Papers filed included sworn affidavits from former NDPP Vusi Pikoli who stated that there was grave political interference, including politicians obstructing prosecutors from pursuing apartheid era cases.

In the hopes of avoiding a messy legal battle and finally acknowledging their duty as the prosecuting authority, the NPA decided to prosecute 4 of the men suspected of having murdered Nokuthula.

Willem Coetzee, Anton Pretorius, Timothy Radebe and Frederik Mong were arrested and charged with the murder of Nokuthula on 26 February 2016. They were granted bail and their trial was set to begin on 25 July 2016 but due the dispute regarding legal fees the case was postponed four times since then.

Coetzee, Pretorius who left the South African Police Service (SAPS) in 1997, and Mong (who is still employed by SAPS) are of the opinion that the Commissioner of Police should pay their legal fees given that they were acting within the course and scope of their duties as employees of the erstwhile South African Police. The Commissioner, amongst other assertions, made the case that the accused “exceeded the power of their duties” and that it would somehow be against the state and the public interest to assist with their legal fees. Therefore, they refused to assist with the legal fees, effectively preventing the criminal trial from proceeding.

As explained by Adv Ntsebeza, the context at the time of Nokuthula’s abduction and murder was one where “state sanctioned extra-judicial killings and rampant criminality was the order of the day.” Therefore, although their actions were clearly unlawful they were still acting in the course and scope of their duties as part of the apartheid machinery. This however, is a matter that the trial court will likely determine when this trial eventually starts.

Last week, Judge C Pretorius, ruled that the Commissioner must pay reasonable legal fees as it was undeniably in the interests of justice, and because during the time of the abduction, torture and murder of Nokuthula, all three were employed by the then SAP and were acting under instructions from their superiors, the late Brigadier Hennie Muller and Brigadier Willem Schoon who is still alive. This raises another important question that has been asked for years -when will the brigadiers and senior politicians who called the shots during apartheid answer for their crimes?

Judge Pretorius also noted that the “state machinery had failed the deceased and her family abysmally” with all the delays and failure to institute criminal proceedings all these years. The NPA has had every opportunity to right the wrongs of the past and provide justice for apartheid era crimes, yet it has taken over 30 years and the trial has not even begun.

In the meantime, Nokuthula’s father and brother have passed without knowing what really happened to her and without being able to bury her remains in a dignified manner. Hopefully, the trial will begin soon and run its course without further delay. This will be the first prosecution of apartheid era perpetrators since the 2007 plea bargain in the Adriaan Vlok matter, and hopefully the first of many. The wait has been long enough and this judgment emphatically states that such untenable delay is unacceptable. No one should have to wait over 30 years for closure, justice and answers.

** This article appeared in the Star Newspaper on 14 June 2018