The Pretoria high court has ordered the South African Police Service to pay the legal fees of three apartheid-era security policemen who are accused of murdering Umkhonto weSizwe fighter Nokuthula Simelane.
Judge Cynthia Pretorius handed down judgement on June 5 after the gruelling litigation led to numerous delays in the trial of Willem Coetzee, Anton Pretorius, and Frederick Mong. All three were members of the apartheid security branch and have confessed to the Truth and Reconciliation Commission (TRC) to being involved in abducting and torturing Simelane in September 1983.
Simelane was just 23 at the time of her disappearance. Her family have waited decades to hear what became of her, but have since accepted she is dead. She is believed to have been abducted because the Security Branch wanted to recruit her. When she refused to join their ranks, she was brutally tortured.
Her body has yet to be found, and in the 33 years since her death, her family do not know how she died. Simelane’s sister, Thembisile Nkadimeng, has led the battle for her family’s justice.
In 2015, after being fed up with the National Prosecuting Authority’s ineffectiveness in dealing with her sister’s case, Nkadimeng obtained a court order which ordered the NPA to take action. It was only then that Coetzee, Pretorius, and Mong were indicted.
But their trial has been postponed after the three were refused legal assistance by the Gauteng police commissioner Major-General Deliwe Suzan De Lange in May 2016. They then approached the Pretoria high court to have De Lange’s decision reviewed and set aside and Judge Pretorius, on Tuesday, agreed to their request.
In a bid to end the delays and finally get the court to commence the trial, Nkadimeng joined the litigation over legal fees, siding with the three security branch policemen who tortured her sister. She asked the court to order that the SAPS pay their legal fees. Her only motive for this request was to ensure the trial resumes as soon as possible after 33 years of waiting, she said.
“We did not expect the former South African Police to investigate themselves. However, we firmly believed that the new democratic South Africa would take the necessary steps. We were wrong as it took the family many years to force the authorities of the democratic South Africa to consider a prosecution. This was the second betrayal of Nokuthula and everything she stood for. This betrayal cut the deepest as it seemed that even her own comrades, who are now in government, sought to sweep things under the carpet. This deprived me and my family of closure and our right to dignity,” Nkadimeng, who is also the mayor of Polokwane, said in her affidavit.
Simelane’s father and brother died before they could bury her body. Her mother, Sizakele, is 76 and suffering with nervous tension, fearful that she will die without knowing what happened to her daughter, too.
In her judgement, Judge Pretorius had scathing words for the state and the manner in which it had treated the court. De Lange, in her capacity as police commissioner, had been late to file papers on numerous occasions, even when it was her own legal team that proposed the dates and times for deadlines.
Judge Pretorius found that SAPS’s disregard for the court time limits, which amounted to more delays, added further insult to the Simelane family’s suffering.
“Not only did the respondents not adhere to the time limits and court rules, but the state machinery had throughout, failed the deceased and her family abysmally,” Pretorius said in her judgement.
“The fourth applicant [Nkadimeng] has been pleading for years, and had to resort to litigation to have the state institute criminal proceedings against the three applicants [the security policemen],” Pretorius said.
De Lange gave a number of reasons why she refused to allow funding for the security cops’ legal fees. Her reasons included that only Mong remained a member of the SAPS, while Pretorius and Coetzee had left the police. Paying their legal fees would therefore add debt to the SAPS, because they were no longer under the SAPS’ employ, she said.
De Lange also said that each of the apartheid policemen “exceeded his powers when executing his duties”, meaning that, in the SAPS’s view, they were not authorised to murder Simelane. Another reason for the refusal to pay the fees, she said, was that it would be against the state and public interest to do so. There are more reasons she gave, each of which was rejected by Judge Pretorius.
The judge said that at the time of Simelane’s murder all three were members of the police, and the police therefore incur the costs of their former employees’ litigation for charges they face as a result of actions they took on the job. Judge Pretorius cited affidavits submitted by former TRC commissioner Dumisa Ntsebeza and investigator Frank Dutton, who both said that state sanctioned extra-judicial killings had become part and parcel of the apartheid regime, particularly the police, during the 1980s.
Judge Pretorius also rejected De Lange’s claim that it would be against the public interest for the SAPS to pay legal costs for Mong, Coetzee and Pretorius.
“It would be in the public interest if this trial commences as soon as possible to ensure justice not only to the applicants, but to the fourth applicant and her family, and society as a whole. It is further in the public interest that the applicants should have proper legal representation and a fair trial as soon as possible,” Pretorius said.
She found that the only way the three security policemen could obtain proper legal services was through funding from the SAPS.
The three security policemen could face jail time when they are tried, because they do not have amnesty. The three appeared before the TRC where they were granted amnesty for kidnapping Simelane. They denied murdering her, and the TRC found they were dishonest about the brutality of the torture they inflicted on her. They do not have amnesty for murder.
The loss of Nokuthula Simelane was “viciously tortured and disappeared,” said Judge Pretorius. She was abducted outside the Carlton Centre in Johannesburg sometime during September 1983. It is clear that Coetzee, Pretorius and Mong were involved in her abduction. The security branch ultimately intended to recruit her and, when she refused, they attempted to beat her into submission.
“Nokuthula was detained at a safe premises, interrogated, tortured, and assaulted by the three applicants for a number of weeks,” Judge Pretorius said.
“Nokuthula was treated in the most reprehensible, inhumane manner while in the custody of these members. She was repeatedly punched, kicked, slapped, suffocated with a bag, electronically shocked and denied toiletries and basic medicine,” the judge continued.
After the torture, Simelane could not walk without assistance, and her face was so brutally beaten that she was unrecognisable.
The three cops said that they dropped her at the eSwatini (then Swaziland) border once she agreed to help the Security Branch, but she was never seen again. Her family do not know what happened to her and her remains have yet to be found. They believe, however, that those involved in her death know where her body is.
“My mother is elderly and ill. It would assist if she died having buried the remains of her daughter and knowing that justice has been done,” Nkadimeng said in her affidavit.