Pretoria - In a victory for the family of ANC operative Nokuthula Simelane, who was allegedly abducted in the parking area of the Calton Centre in Johannesburg more than 34 years ago and never seen again, the Gauteng High Court, in Pretoria, on Tuesday ordered the police to pay the legal costs of the three former security policemen accused of her murder.
This ruling will now pave the way for the case to go to trial and for the family to get closure.
Judge Cynthia Pretoria found that the police was biased and followed an unfair procedure in their refusal to pay for the legal fees in the upcoming murder trial of Willem Coetzee, Anton Pretorius and Frederick Mong.
“The process was not impartial and there is thus a reasonable apprehension of bias against the three applicants, “ she said.
They turned to court after the police refused their applications for the payment of their legal costs in the criminal trial.
Simelane’s sister, Thembisile Nkadimeng joined the proceedings and supported the application for the police to pay the legal fees, as the family wanted the trial to proceed and justice to be done.
Judge Pretorius said the state machinery had throughout failed the deceased and her family abysmally.
She said the delay to bring this matter to trial has lasted decades. Since the indictment of the three applicants, the matter was postponed four times to resolve the matter regarding legal assistance.
“It would be in the public interest if this trial commences as soon as possible to ensure justice not only to the applicants, but to the the fourth respondent (Nkadimeng) and her family and society as a whole,” Judge Pretorius said.
She commented that the trial has already been unduly delayed because of the legal fees issue.
The police refused the three's application for it to pay their legal fees in May 2016. This followed their arrests in February 2016 regarding the alleged murder of Simelane in 1983. They were each released on R5 000 bail.
It is claimed that they, while in the employ of the then South African Police (SAP) murdered the 23-year-old Simelane, who was an underground operative of the ANC.
She was kidnapped and detained at a safe premises, where she was tortured and assaulted by the three for weeks. They said this was done on the instructions of their commanding officers, as they wanted to recruit her as an agent for the security branch.
“She was treated in the most reprehensible, inhumane manner while in custody of these members… according to the applicants they dropped her at the Swaziland border after she agreed to assist the security branch. She was never seen again. To date her family still do not know what happened to her or where her body is.”
The three were granted amnesty by the Truth and Reconciliation Committee (TRC) for kidnapping.
In refusing their application for the police to pay for their defence regarding their murder trial, the police said the three had exceeded their powers of duty, that it would be against State and public interest to grant legal assistance and that the State is the complainant in this case.
The police also complained that in the case of them being convicted, it would be difficult to recover the money from them.
It was said that if they were cash strapped, they should apply for legal aid.
But Judge Pretorius said the three were members of the SAP in 1983 when this incident took place and they were under command and instruction of their commander at the time and as such qualified for legal assistance.
She said the court had to consider the prevailing circumstances during 1983 at the height of the apartheid government’s war against the liberation movements.
“I cannot find, and it is not incumbent on me to find whether the applicants acted in a manner, at that particular time, exceeding their powers. It will be for the trial court to make such a determination,” the judge said.