SAPS ordered to pay legal fees of security cops accused of murdering MK fighter

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 judgment 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 was 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 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 find out what happened to her. Her mother, Sizakele, is 76 and suffering with nervous tension, fearful that she too will die without knowing what happened to her daughter.

In her judgment, 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.

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 judgment.

“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. She gave more reasons , each of which were rejected by Pretorius.

The judge said that at the time of Simelane’s murder all three were members of the police, and the police should therefore incur the costs of their former employees’ litigation for charges they face as a result of actions they took on the job. 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.

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 if they are convicted, because they do not have amnesty for murder. The three appeared before the TRC where they were granted amnesty for kidnapping Simelane. They denied murdering her, but the TRC found they were dishonest about the brutality of the torture they inflicted on her. 

The loss of Nokuthula 

Simelane was “viciously tortured and disappeared,” said 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,” 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. 

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Raeesa Pather
Raeesa Pather
Ra’eesa Pather is a Cape Town-based general news and features journalist.

Related stories

Advertising

Subscribers only

Pandemic hobbles learners’ futures

South African schools have yet to open for the 2021 academic year and experts are sounding the alarm over lost learning time, especially in the crucial grades one and 12

Q&A Sessions: George Euvrard, the brains behind our cryptic crossword

George Euvrard spoke to Athandiwe Saba about his passion for education, clues on how to solve his crosswords and the importance of celebrating South Africa.

More top stories

Uganda: ‘I have never seen this much tear-gas in an...

Counting was slow across Uganda as a result of the internet shutdown, which affected some of the biometric machines used to validate voter registrations.

No way out for Thales in arms deal case, court...

The arms manufacturer has argued that there was no evidence to show that it was aware of hundreds of indirect payments to Jacob Zuma, but the court was not convinced.

Inside George Mukhari hospital’s second wave

The Bhekisisa Centre for Health Journalism and James Oatway visited George Mukhari academic hospital to document the second-wave realities experienced by doctors and nurses

Power shift at Luthuli House

Ace Magashule’s move to distance himself from Carl Niehaus signals a rebalancing of influence and authority at the top of the ANC
Advertising

press releases

Loading latest Press Releases…