South Africa: Challenging NPA inaction for TRC related prosecutions

Salc : Staff Writer

Nkadimeng v the National Director of Public Prosecutions and others

SALC is supporting the family of Nokuthula Simelane to compel the National Prosecuting Authority (NPA) to either refer the disappearance of anti-apartheid activist Nokuthula Simelane for an inquest or to make a decision whether to prosecute.

Nokuthula Simelane was abducted, tortured and forcibly disappeared in 1983 by members of the Security Branch of the former South African Police. She was a twenty-three year old university graduate and acted as a courier for Umkhonto we Sizwe, the armed wing of the African National Congress, moving between Swaziland and South Africa.  Her remains have never been found.  In 1996, a police docket was opened and in 2001 the Amnesty Committee of the Truth and Reconciliation Commission (TRC) granted some of the perpetrators amnesty for Nokuthula’s abduction, including certain police officers who the Committee found had lied about the brutal torture.  This was notwithstanding the full disclosure requirement laid down in the TRC law.   None of the perpetrators applied for amnesty for her murder.

Despite repeated requests by the family to the authorities, no decision had been taken to refer her case to an inquest, neither had a decision been made whether to prosecute the perpetrators who did not apply for amnesty for murder or kidnapping.

In May 2015 Nokuthula’s family filed an application before the Gauteng Division of the High Court seeking to compel the NDPP to make a decision. In addition,Nokuthula’s family submitted that the untenable delay and inaction from the South African authorities constitutes a violation of the family’s rights to human dignity and equality, and is inconsistent with the rights to life, freedom and security of person.

The NPA filed its notice of intention to oppose the application but also re-opened discussions with Nokuthula’s family.

In February 2016 the NPA announced its intention to prosecute four of the suspected perpetrators for the murder of Nokuthula Simelane. The NPA has charged Timothy Radebe with kidnapping and murder, whilst Willem Coetzee, Anton Pretorius and Frederick Mong have been charged with murder. (State v Msebenzi Timothy Radebe and 3 others). All suspects are out on bail. The  legal proceedings to compel the NDPP to prosecute will be held in abeyance.

State v Msebenzi Timothy Radebe and 3 others

The trial was set to begin on 25 July 2015 but the matter was immediately postponed pending a resolution with regard to legal fees. Willem Coetzee, Anton Pretorius and Frederick Mong, are of the opinion that the South African Police Service (SAPS) should cover their legal fees as they allege that the charges stem from conduct that took place in their capacity as police officers of the then South African Police. The SAPS declined their request.

Timothy Radebe has requested that the state disclose parts of the docket but his request has been denied. He indicated his intention to launch an application seeking to gain access to parts of the docket. The application was set to be heard  on 20 September 2016 but Timothy Radebe failed to bring his application. On 20 September the court postponed the trial to 25 November 2016. According to the accused, an application to review SAPS refusal to cover legal fees will be brought.

Bail has been extended on the same conditions.

Founding Affidavit Thembi Nkadimeng

Supporting Affidavits: Family membersFrank DuttonDumisa NtsebezaVusi PikoliAlexander BoraineAnton Ackermann