Our Pro Bono team acted on behalf of the families of the COSAS 4 to file a court application ordering the SAPS to pay Christiaan Siebert Rorich's legal costs, so as to avoid a grave miscarriage of justice.
On 29 September 2022, Ms Maide Selebi, sister to the late Eustace Madikela (one of the members of the COSAS 4) filed a court application to intervene in the legal proceedings launched as a result of the South African Police Services' (SAPS) refusal to pay the legal costs of Christiaan Siebert Rorich in the murder trial of four anti-apartheid student activists known as the COSAS 4.
Ms Selebi opposes the application for leave to appeal by the Minister of Police against the Court’s judgment issued on 4 May 2022, which directs- the SAPS to pay Rorich's legal costs. She also opposes the Minister’s application for condonation of the three months late filing of his leave to appeal.
Ms Selebi alleges that the Minister of Police and SAPS are in contempt of the court order issued on 4 May 2022.
Rorich is a former Security Branch explosives expert, who, together with Tlhomedi Ephraim Mfalapitso, are charged with the murder of the COSAS 4. In November 2021, historic charges of crimes against humanity were added to the indictment. This is the first time that crimes against humanity have been brought in South Africa.
On 15 February 2022, Rorich’s attorneys informed the court that SAPS had declined to pay his legal costs and that they intended to review this decision. To date, Rorich’s attorney, Kobus Muller, has not reviewed the SAPS decision, and he is now time-barred from doing so. He has also not invoked section 3 of the State Liability Act 20 of 1957 to execute against SAPS property for purposes of satisfying the court’s order.
The refusal of SAPS to pay Rorich's legal costs was inconsistent with the ruling of Pretorius J in Willem Helm Johannes Coetzee & Others v Minister of Police & Others, which set aside the decision of SAPS not to fund the legal defence of the accused, who were former Security Branch members charged with the kidnapping and murder of MK operative, Nokuthula Simelane. The SAPS elected not to appeal the Coetzee judgment and are accordingly bound by it. In its application for leave to appeal, SAPS does not argue that Coetzee was wrongly decided or that it is distinguishable from this case.
Since a review of the SAPS refusal to pay Rorich’s legal costs would delay the trial by years, the COSAS 4 families asked the court to invoke its inherent powers under the Constitution, and the Criminal Procedure Act, to order the SAPS to pay Rorich's legal costs, so as to avoid a grave miscarriage of justice.
On 4 May 2022, Judge Mokgoathleng issued an order and delivered judgment in open court. The court found that Rorich was formally employed by the South African Police (SAP) and that SAPS as the successor in title of SAP, was legally obliged in terms of the Standing Order 109 to provide the legal funding for his defence. The court ordered SAPS to commence paying such costs within 14 days of judgment. Under court rules, SAPS were meant to file their leave for appeal by no later than 25 May 2022.
SAPS ignored the court order and only filed its leave to appeal on 16 August 2022. In its application for condonation for late filing, SAPS claimed internal bureaucratic difficulties. Ms Selebi rejects this excuse and avers that SAPS is in brazen contempt of the court process. Not only did the SAPS defy the court’s order but it also failed to appear in four consecutive court hearings, without excuse or apology. Ms Selebi argues that the conduct of SAPS has effectively delayed the start of the criminal trial by a year. She says this was done with the knowledge that the case is 40 years old and the accused, witnesses and family members are in their twilight years.
In its application for leave to appeal, SAPS argues that the court should have waited for an application for review of the SAPS decision to be pursued before a civil court and allowed that process to be concluded first. Such a process could take up to two years or longer. Ms Selebi argues that such a delay could result in the trial collapsing, since the accused are elderly and could die in this period or become medically unfit to stand trial. She points out that this has happened in several other apartheid-era cases. The other suspects in this case, Jan Carel Coetzee, Abraham Grobbelaar, and Brigadier Willem Frederick Schoon have already died.
SAPS also argues the criminal charges against Rorich, namely kidnapping, murder and crime against humanity, fall outside normal police duties. Ms Selebi points out that such crimes fell squarely within the modus operandi and required police work of the Security Branch. The kidnapping and murder of the Cosas 4 was an official police operation and Rorich acted under orders from his superiors.
To access the full record of papers in the COSAS 4 matter, click here.
This matter is in line with goals 10 (reduced inequalities) and 16 (peace, justice and strong institutions) of the United Nation's Sustainable Development Goals.