A last minute attempt to escape prosecution following the death of the members of the Congress of South African Students (known as the Cosas four) more than four decades ago, apartheid police officer Thlomedi Mfalapitsa, will have to face the music.
The Gauteng High Court, Johannesburg this week turned down an application by Mfalapitsa to review and set aside the finding by the amnesty committee which refused him amnesty in May 2001 for the 1982 incident during which three of the youths were killed. The fourth died during later years.
As part of his application to the amnesty committee, Mfalapitsa admitted his role in the murder, and tried to persuade the committee that his conduct had a proportionate link to a political objective.
In a majority judgment, the amnesty committee was not convinced that such a link existed and denied his application. That left the now elderly Mfalapitsa vulnerable to prosecution.
He now asked the court to set aside the amnesty committee’s decision to refuse the indemnity he sought and asked that the court substitute the committee’s decision for one granting him amnesty.
That would have resulted in permanently preventing his prosecution for the murder of the Cosas Four.
But following the refusal of his application by Judge Stuart Wilson, he is due to face various charges, including murder, later this month in the Johannesburg high court, together with co-accused Christiaan Rorich - nearly forty-three years since the boys died.
Judge Wilson noted in his judgment that on February 15, 1982, Mfalapitsa, locked four teenage boys in a building on an abandoned mine. The building had been rigged with explosives. Mfalapitsa had told the boys that he would train them to carry out acts of resistance to the Apartheid regime.
He took them to the mine under the pretext of teaching them how to use explosives. He told the boys to wait in the building while he fetched equipment necessary to conduct the lesson. Once he had locked the door, Mfalapitsa ran.
That was allegedly the signal for Rorich, who is not a party to these proceedings, to detonate the explosives. Three of the youths, Eustice “Bimbo” Madikela, Ntshingo Mataboge and Fanyana Nhlapo, were killed instantly. The fourth, Zandisile Musi, survived with life-changing injuries, but has died in the years since the explosion.
These youths became known as the “Cosas Four”. After the Apartheid state collapsed in the early 1990s, Mfalapitsa and Rorich unsuccessfully applied for immunity from prosecution for their part in murdering the Cosas Four.
Judge Wilson commented that Mfalapitsa’s application is hopelessly out of time. However, the court has decided to overlook his delay in bringing the review application, and to dismiss the application on its merits.
The majority judgment of the amnesty committee found that there were courses of action open to Mfalapitsa, and to the other applicants for amnesty before it at the time, short of the murders and the maiming that they committed.
In analysing the committee’s findings, Judge Wilson said the killing the Cosas Four was substantially more than was required in order to eliminate any threat they posed to the Apartheid regime in general or to the identified objects of their paramilitary plans in particular.
“To the extent that it may be contended that Mr. Mfalapitsa had to kill the boys because he was commanded to do so, I think the majority of the amnesty committee was right to point out that he played a critical role in taking up the threat they posed and in provoking the order to kill that he eventually received.”
Judge Wilson added that Mfalapitsa encouraged the boys to become the threats that he was later ordered to eliminate. He was his commanders’ only source of information about the boys and their activities.
“I think that the majority decision was correct to point out that the boys had not yet become a source of any imminent threat. But even if they had, it was only because Mr. Mfalapitsa had made them so.”
Judge Wilson said in these circumstances, Mfalapitsa can hardly be heard to complain that he had no choice but to carry out the order to kill them. “He took active steps which he must have known would create the context in which the order was very likely to be given. There was no evidence before the amnesty committee that he was compelled to take any of those steps.”
The minority judgment of the amnesty committee at the time took the view that, in the fog of war, atrocities are committed on both sides, and that too close a relationship between means and ends ought not to be required.
Judge Wilson concluded that it seems to him that the majority decision was reasonable, factually accurate and entirely consistent with the applicable law. The review application must thus fail, he said.