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About 38 years after their deaths, the families of three Congress of South African Students (Cosas) members killed by Security Branch police officers, have applied to the court for their bodies to be exhumed for forensic examinations.
The three students – Eustice Madikela, Ntshingo Mataboge and Fanyana Nhlapho – were murdered in 1982. Another student, Zandisile Musi, who was also in the group, which became known as the Cosas 4, was seriously injured.
According to a media statement by the Foundation for Human Rights (FHR) and law firm Webber Wentzel, the law firm’s pro-bono department filed an application on behalf of the relatives last week, seeking an order from the Krugersdorp Magistrate’s Court for the exhumations.
They want the court to issue an order for the Mogale City local municipality, with the help of SAPS and the NPA missing person’s task unit, to exhume the bodies – so the Roodepoort Forensic Services can conduct the post-mortems.
The application was on behalf of Maide Selebi, Madikela’s sister; and Patience Nhlapho, who is Fanyana’s cousin. The two are also listed as the first and second applicant in the court papers dated 2 September.
“The Cosas 4 were lured into an old discarded pumphouse by an Askari (informer), Thlomedi Ephraim Mfalapitsa, under the guise that they would be given training on how to use certain weapons.
“The Security Branch had rigged the pumphouse with explosives and once Mfalapitsa left, the pumphouse was locked, and the explosives were detonated. The murders were covered up by the Security Branch and remained concealed until certain of the perpetrators applied for amnesty before the Truth and Reconciliation Commission (TRC).
“The families were told by the police that the Cosas 4 had blown themselves up. They were buried without a post-mortem examination, even though their deaths were obviously from unnatural causes. The law requires a post-mortem examination in deaths arising from unnatural causes.”
Affidavit
In their founding affidavits, which News24 had seen, the applicants stated that they sought an order for the exhumation in terms of section 3(4), 3(2) of the Inquest Act and regulation 26(1)(b) of the regulations relating to the Management of Human Remains.
“Such disinterment is to be performed so that an examination by a medical practitioner can be performed on the remains of the deceased and a post-mortem report issued as to the cause of death of the deceased in order to satisfy the requirement under section 3(2) of the Inquests Act…” stated Selebi.
Selebi also stated in the papers that the declaration of the cause of death would then be used for further investigation into the prosecution of those responsible for the murders of the deceased.
The cause of deaths of the deceased was revealed at the TRC in May 1999 when former Security Branch officers, Carel Coetzee, Willem Frederick Schoon, Abraham Grobbelaar, Christian Siebert Rorich and Mfalapitsa applied for amnesty, FHR and Webber Wentzel said in the statement.
‘ Taking matters into their own hands’
The officers were denied amnesty, and the case referred to the National Prosecuting Authority (NPA) for further investigations and prosecution, but nothing had happened.
The legal representatives of the families, as well as FHR, said they had been liaising with the NPA since October last year – but despite three meetings and communication with the NPA and SAPS there had been no movement on the matter.
“In order to avoid further delay, the families have now taken matters into their own hands and initiated the first necessary legal step to lay the basis for a prosecution of the known perpetrators,” they said in the statement.
But the NPA said it would oppose the application because it was of the view that it’s “premature as investigations are still in progress”.
Premature
NPA spokesperson Phindi Mjonondwane said the families had been kept abreast of the developments of the matter and the investigating officer also updated them.
“Initially, the TRC matters were seized with the Priority Crimes and Litigation Unit (PCLU) at NPA head office. The DPP office received this matter for the first time on 6 August 2019.
“Subsequent to receiving the case file, the Director of Public Prosecutions’ (DPP) office allocated the matter to a senior state advocate who is working closely with his supervisor (DDPP) in guiding the investigations. Numerous meetings were held between the NPA, the investigating officer and Webber Wentzel about matters of investigation/developments in this matter,” Mjonondwane said.
Mjonondwane said the NPA had arranged to meet the families on 21 March 2020 but that was not possible following the declaration of the national State of Disaster.
“The office of the DPP in the Gauteng Local Division reiterates its commitment in assisting affected families to uncover the truth about atrocities committed during the apartheid regime.
“This commitment is evident in strides made in similar cases like S v Rodrigues, Nokuthula Simelane murder and the reopened inquest of Dr Neil Aggett.”
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