OPINION: Prosecuting apartheid-era criminals under the crime against humanity of apartheid honours those who gave up their lives for freedom, ensuring that the next generation acknowledges the painful cost of apartheid, the legacy of which we still live with today, write Yasmin Sooka and Katarzyna Zdunczyk.
Zandisile Musi, the sole survivor of the planned assassination of the ‘Cosas 4’ by the apartheid security branch in February 1987, died earlier this year.
Musi and his comrades, Eustice ‘Bimbo’ Madikela, Ntshingo Mataboge, and Fanyana Nhlapo, were members of the Congress of South African Students (Cosas).
The Cosas 4, Inspired by the anti-apartheid struggle, waged by the banned African National Congress (ANC), decided to leave the country to join the ANC in exile.
Musi entrusted a comrade, Tlhomedi Ephraim Mfalapitsa, with getting them out of the country. Unbeknown to him, Mfalapitsa, an Askari, informed his superiors about the students’ plans and was allegedly ordered by Jan Carel Coetzee, his superior at Vlakplaas, to entrap Musi and his comrades by perfidiously deceiving them into believing that they would receive training, but which would ultimately, result in them being killed.
Joe Mamasela, an Askari implicated in numerous assassinations of activists, assisted Mfalapitsa by picking the four students up and driving them to a pump house near Krugersdorp. The assassinations were authorised by senior security branch officials, including Brigadier Willem Frederik Schoon, who conveyed the orders to Coetzee.
Security Branch policeman Christian Sievert Rorich, Mfalapitsa’s co-accused in this matter, was brought in as an explosives expert to rig the pump house near Krugersdorp with explosives. The explosives were detonated once the four students were inside, killing three of them and seriously injuring Musi on 15 February 1982.
Nearly forty years later, two courageous prosecutors, Advocate Jabulani J. Mlotshwa and Advocate Andrew Chauke, the South Gauteng Director of Public Prosecutions, made legal history on 19 November this year by charging Mfalapitsa and Rorich with the crimes against humanity of murder and apartheid.
This is the first time that anyone has been charged with the crime against humanity of apartheid, either in South Africa or globally. The crime of apartheid is defined as an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups.
African countries led the struggle in the United Nations (UN) in the 1960s to build a unified international effort to bring down apartheid. The African initiative led to apartheid being criminalised as a crime against humanity in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, which entered into force in 1976.
Regrettably, South Africa has yet to ratify the Apartheid Convention. In 1991, the International Law Commission recognised that the crime of apartheid “…is so deeply condemned by the world’s conscience that it was inconceivable ... to exclude it from a code which punishes the most abominable crimes that jeopardise the peace and security of mankind”.
Proving the Crime of Apartheid
Apartheid in South Africa was a legalised system of oppression and inequality, which denied black South Africans of their rights in the country of their birth, preventing them from participating in the political, social, economic and cultural life of the country.
Apartheid was maintained through a repressive system of widespread and systematic violence, resulting in gross human rights violations amounting to serious international crimes. Life under apartheid for the majority of black South Africans was a relentless, cruel and dehumanising experience, which prompted Nigerian novelist Ben Okri to say of apartheid that it was "the whole world's howling pot of human misery”.
Prosecutors in the Cosas 4 case will need to prove three elements of the crime of apartheid: an intent to maintain a system of domination by one racial group over another; the systematic oppression by one racial group over another, and in this context, inhumane acts, carried out on a widespread or systematic basis against the civilian population.
Clive Baldwin, in his blog “Apartheid and Persecution: The Forgotten Crimes Against Humanity”, pointed out that ‘the concept of domination and systematic oppression’ is not so well defined in international law, which provides the prosecution with an opportunity to confirm judicially what apartheid criminality was all about.
Prosecuting Mfalapitsa and Rorich for the crime of apartheid is an opportunity to recover the historical truth about the apartheid state and its dehumanizing racial policies of legalised discrimination and persecution.
Judicial confirmation will deal conclusively with historical revisionism and denial and will demonstrate how the apartheid state became a criminal state, authorising death squads to murder, torture and disappear opponents.
Furthermore, it will reveal that these political crimes were ordered at the highest levels of the apartheid state and were not the private acts of bad apples or rogue agents on a frolic of their own.
Finally, prosecuting apartheid-era criminals under the crime against humanity of apartheid honours those who gave up their lives for freedom, ensuring that the next generation acknowledges the painful cost of apartheid, the legacy of which we still live with today.
* Yasmin Sooka, is a human rights lawyer and Katarzyna Zdunczyk, is a senior researcher at the Foundation for Human Rights.
** The views expressed here are not necessarily those of IOL and Independent Media.