In the first apartheid-era political murder trial to take place in South Africa since 2007, the defence is facing a dilemma so absurd it reads like a Joseph Heller novel. Why should a post-apartheid democratic state have to foot the (very substantial) legal costs of Security Branch police officers accused of the abduction, torture and murder of an anti-apartheid activist? By KEVIN BLOOM.
“She was very beautiful. But by the time they were finished with her, she could not be recognised.”
These words, spoken by an applicant for amnesty at the Truth and Reconciliation Commission, refer to the last time that Nokuthula Simelane was seen alive. In the TRC final report, the words appear on page 234 of Volume 2, and they lend a poignant urgency to what is otherwise a dry exposition of the activities of the Security Branch of the apartheid police. The sub-section in which we read the words is entitled “Abduction, interrogation and killing” – it deals with a category of killings “where the primary purpose was to obtain information, and death followed, apparently in order to protect the information received”.
There were many other reasons that the Security Branch killed, of course, but the good people at the TRC saw fit to put Simelane’s death in this class. How could they have known that almost two decades later it would create a dilemma for Advocate Johan Gaum in thematter of “The State versus Msebenzi Timothy Radebe and 3 Others”?
To remind you, what we’re talking about here is the first apartheid-era political murder trial to take place in South Africa since 2007, a trial that was meant to begin in the North Gauteng High Court on 25 July this year. Gaum, who represents the “3 Others” charged with the murder in 1983 of Nokuthula Simelane, opened the session by informing the judge that the South African Police Service (SAPS) was still debating whether or not to pay his clients’ legal fees. Given that Gaum’s clients – Willem Coetzee, Anton Pretorius and Frederick Mong – were, like Radebe, former members of the Security Branch, this was no ordinary request for a postponement.
The current police chiefs could not have been arguing that SAPS wasn’t liable for the wrongs of the apartheid police, because that argument doesn’t fly in domestic or international law (ref: Germany). No, the only ground to deny legal support would be if the accused had not been acting in the course and scope of their employment with the police.
In other words, SAPS must be suggesting that the accused were off on a private frolic. Presumably, SAPS believes that practices like abduction, torture and murder are not part of policing work and were inconsistent, at least notionally, with official procedure even under apartheid.
To return, then, to Gaum’s dilemma. To secure his client’s legal fees, he has to submit that they were doing their jobs as policemen when they rendered the “very beautiful” Nokuthula unrecognisable. Indeed, in their amnesty applications, the three admit as much – they acknowledge the kidnapping and assault as part of their Security Branch duties, yet deny the murder. That the former Security Branch acted with unrestrained brutality is not controversial. Abduction and torture were employed routinely to blunt the “total revolutionary onslaught”. But so was murder – hence the subsection in the TRC final report entitled, “Abduction, interrogation and killing”.
Unfortunately for the family of Simelane, who have been waiting for justice now for 34 years, the High Court can’t fast-track a matter just because it reads like a Joseph Heller novel. Gaum’s dilemma, although not a classic catch-22, isn’t all that far off. The TRC report flatly contradicts any suggestion that the activities of men like Coetzee, Pretorius and Mong were private frolics – meaning that Gaum, who told the judge that he would take SAPS to court if they refused to pay his clients’ fees, can hardly ignore the report when making his argument. And yet, in the very same breath that the TRC report confirms abduction and torture as core weapons in the Security Branch’s arsenal, it confirms murder as the go-to method in the silencing of troublesome activists and the prevention of exposures.
Take, for instance, the “primary finding” of the TRC report from volume 5, page 212, paragraph 77:
“The predominant portion of gross violations of human rights was committed by the former state through its security and law enforcement agencies.”
To assuage any doubts as to what these gross violations may have entailed, the report in the same paragraph goes on to mention “the extrajudicial killings of political prisoners and others”.
Then there is paragraph 82, the final sentences of which read as follows:
“Evidence placed before the Commission indicates, however, that from the late 1970s, senior politicians – as well as police, national intelligence and defence force leaders – developed a strategy to deal with opposition to the government. This entailed, among other actions, the unlawful killing, within and beyond South Africa, of people whom they perceived as posing a significant challenge to the state’s authority.”
Which brings us to the heart of the matter. The TRC found that from the late 1970s to the early 1990s the South African state, primarily through its policing and military structures, entered a “realm of criminality”. This period coincides with the reign of PW Botha, who as defence minister in 1978 deposed John Vorster in a palace coup. Running on the ticket that Vorster’s “weak” deployment of police wasn’t going to combat the revolutionary threat, Botha shunted South Africa’s security apparatus into what was called the “Total Strategy”. On pages 218 to 222 of volume 5 of the TRC Report, we get a rundown of what this strategy entailed (the following four items are from an original list of 10):
Torture, including not only the intentional infliction of pain but also detention without trial and solitary confinement;
Abduction, involving the forcible and illegal removal or capture of people, often from beyond the borders of South Africa;
Severe ill treatment including sexual assault, abuse or harassment… and the mutilation of body parts;
Extrajudicial killings in the form of state-planned and executed assassinations, attempted killings, disappearances, abductions and so-called ‘entrapment killings’, where individuals were deliberately enticed into situations.
In addition, the Goldstone Commission’s “Third Force” report concludes that the apartheid police’s Security Branch was involved in rampant criminality, including “murder, fraud, blackmail and political disinformation”.
Implying, however Gaum chose to argue that SAPS should foot his clients’ legal bill, sitting in his briefcase would still be the indictment delivered in January 2016 by chief prosecutor Shaun Abrahams to the four accused.
And here, in summary, is what it says in that indictment (and why it appears typical of a PW Botha-era Security Branch operation):
In 1983, the four accused were all attached to the Soweto Intelligence Unit of the South African Police Security Branch, where they were involved with intelligence gathering and controlling various classes of agents and informants. The unit by then had met with some success, and had managed to infiltrate the ranks of the African National Congress and its military wing Umkhonto we Sizwe (MK) in Swaziland. One day the unit received information that a meeting would take place in September 1983 between a deep cover agent and an MK operative at the Carlton Centre in Johannesburg. When Willem “Timol” Coetzee, the unit’s commander (referred to in the indictment as “Accused 2”; the nickname is courtesy of his early work at the Security Branch’s Indian Desk), told Brigadier H Muller, the overall commander of the Soweto Security Police, about the meeting, it was agreed that the MK operative should be abducted and “turned”. Coetzee gathered his team (referred to in the indictment as “Accused 1-4”), and set to work.
On the day of the operation, the deep cover agent, one Norman Lungile Mkhonza, lured the MK operative, a 23-year-old female named Nokuthula Aurelia Simelane (referred to in the indictment as “the deceased”), down into the underground parking of the Carlton Centre mall. It was there that she was “apprehended and kidnapped by inter alia Accused 1-4”, or more specifically, where she was “manhandled and bundled into the boot of a police vehicle together with Accused 1 [Msebenzi Timothy Radebe], who assisted to subdue her inside the boot.” The deceased was then taken to the Custodium Flats in the Johannesburg suburb of Norwood, where she was kept for a few days and “interrogated and continuously assaulted and tortured by Accused 1-4.”
After that the operation moved out of the city and to a secluded farm in Northam owned by the family of Accused 2, where the deceased was kept for a period of four to five weeks.
“At the Northam farm, the deceased was handcuffed and shackled with leg irons. Accused 1-4 continued to severely assault and torture the deceased, whilst they interrogated her. Towards the end of her stay on the farm, the deceased’s overall physical condition had generally deteriorated to such an extent that her face was barely recognisable and she could not walk unassisted. The deceased then disappeared while being in the hands of Accused 1-4 from 1983 up to date.”
Returning again to 2016 and Gaum’s plea for legal costs, a question now presents itself: why should a democratic post-apartheid South Africa have to foot the bill for such charges? Answer: because the rule of law demands it. In the 1980s the accused were young men, no more than cogs in the machine. Policemen like them were useful and indoctrinated idiots dutifully doing the dirty work of their masters – and their masters, who have most likely evaded detection through backroom deals, have happily hung the De Kocks and Coetzees of the world out to dry.
For anybody who cares to wade through the ugly detail, South African case law is replete with cases in which it has been held that policemen act in the course and scope of their employment even where their actions amount to conduct outside the law. There simply has to be a sufficient connection between the alleged unlawful conduct and police work. Nothing more. How else did the police justify coughing up around R3-million a month for more than two years to pay for the SAPS legal team at the Marikana Commission when the aroma of extrajudicial executions on and around the koppie (scene 2) stank to the heavens?
(Note: the predatory state refused to cough up the legal fees of the surviving miners until compelled to do so by the High Court).
The circumstances of Nokuthula Simelane’s case suggest an obvious and overwhelming connection between the alleged conduct of the accused and the modus operandi of their employer. It appears that SAPS is the victim of yet more substandard legal advice from state lawyers. Unless it is intent on changing established legal precedent, it is on a hiding to nothing.
With the commencement of the trial set for 20 September 2016, when it is expected that the judge will hear an application by the accused to make parts of the prosecution’s docket available to them, there’s a lot to wade through before we get to the evidence. The dispute on legal fees could wind its way through three courts before we return to courtroom GD of the North Gauteng High Court and the cross-examination of the accused. Also, as stated inparts I and II of this series, the National Prosecuting Authority has been dragging its heels on apartheid-era political murder cases ever since it was formed in 2001 – the only reason that NPA head Shaun Abrahams got it together to write up the above-mentioned indictment was because Thembi Nkadimeng, Simelane’s sister, approached the High Court to compel him.
As to why Abrahams needed to be compelled, it’s an answer that bears repeating. Because, according to the testimony of former chief national prosecutor Vusi Pikoli, who quoted in his sworn affidavit attached to the Nkadimeng application the words of ranking ANC Cabinet ministers, any prosecutions of apartheid-era crimes “could open the door to prosecutions of ANC members”.
It’s hardly a surprise, then, that it’s only a handful of foot soldiers who are facing justice. Going after the real culprits, the masters of apartheid’s foot soldiers, could open that dreaded door wide. If the door were opened just a crack, and a single mastermind were prosecuted, it could prompt one of PW Botha’s generals to expose the apartheid-era CVs of some interesting ANC names.
And so there we may very well have it – the reason we are no closer to cross-examining the men who took the real decisions to “disappear” Nokuthula Simelane and others like her who died for South Africa’s liberation. DM