Understanding the court ruling on apartheid-era crimes
In a landmark judgment against members of the apartheid security forces, the Johannesburg High Court has ruled that the state can prosecute apartheid-era crimes, because apartheid is a crime against humanity and there is no time bar on the prosecution of such crimes.
The case concerned the criminal trial of Christiaan Siebert Rorich and Tlhomedi Ephraim Mfalapitsa facing charges of kidnapping and murder as crimes against humanity, and the crime of apartheid specifically. They were members of the Apartheid Security Branch charged with the kidnapping and murder in 1982 of the 'COSAS 4' - teenagers Eustice 'Bimbo' Madikela, Peter 'Ntshingo' Matabane, Fanyana Nhlapo and Zandisile Musi, anti-apartheid activists and members of the Congress of South African Students (COSAS).
The prosecution of these crimes however was only initiated in democratic South Africa nearly 40 years later – in 2021.
The accused made two main legal arguments. First, they argued that crimes against humanity only became offences in South Africa in August 2022 after the country ratified the Rome Statute and passed legislation to this effect. They argued therefore that these acts were not regarded as crimes in South African law at the time they took place.
In terms of the Constitution, an accused has a right to a fair trial, which includes the right not to be prosecuted for an act that was not a crime at the time it took place.
They also argued that even if it were a crime, the power to prosecute lapsed after 20 years and to prosecute them 40 years later would violate their right to a fair trial. Finally, they argued that there had been political interference in their prosecution and that the charges were brought too late, which denied them a right to a speedy trial without undue delay.
The National Prosecuting Authority and the Legal Resources Centre (LRC) which was admitted as a friend of the court, argued that crimes against humanity including apartheid are a part of customary international law and that the Constitution requires courts to abide by international law.
They said crimes against humanity originate from the prosecution of Nazi generals during the Nuremberg Trials after World War II and have become part of international law since then. They argued that apartheid is a crime against humanity because it involved inhumane acts committed as part of a widespread and systematic campaign against black civilians and opponents of the regime. The charges against Rorich and Mfalapitsa related to acts committed in furtherance of this objective, they said.
The main questions the court had to consider were: whether apartheid was a crime against humanity and thus a crime at the time the acts were committed; and
whether any attempt to prosecute such crimes had an expiry date.
In his ruling on 14 April, Judge Dario Dosio noted that the Constitution explains that customary international law is automatically law in South Africa unless it is inconsistent with the Constitution. This means that it is not necessary for South Africa to have formally signed and ratified a treaty concerning that law, nor is it necessary for Parliament to pass legislation to this effect. This approach had been confirmed by the Constitutional Court on several occasions, he said.
Turning to apartheid, the judge defined it as a system of racial segregation and discrimination which was designed to maintain the domination of the white minority over the black majority. He pointed out that enemies of the state had been subjected to imprisonment, kidnapping, torture, police brutality and assassinations. The UN General Assembly had declared apartheid a crime against humanity in 1966. More importantly, in 1973, the Apartheid Convention came into effect – an international treaty which criminalised apartheid and sought its suppression and punishment worldwide.
In democratic South Africa, the Truth and Reconciliation Commission confirmed that apartheid was a crime against humanity. The judge concluded that apartheid had been a crime against humanity for at least 79 years.
Referring to decisions of the Constitutional Court, Judge Dosio said that it had been accepted that crimes against humanity under customary international law can be prosecuted in terms of the Constitution. Based on this logic, the Court found that these constitutional provisions provided a pathway for the prosecution of crimes against humanity which occurred in South Africa before 1994.
Turning to the question of whether there is a time bar date for prosecutions, he found that there was not.
He referred to the Convention on Statutory Limitations, which set out that there are no statutory limitations (expiry dates) on the prosecution of crimes against humanity. This convention dates from the aftermath of World War II when war criminals during the Nuremberg and Tokyo Tribunals raised such arguments.
The judge said in other countries the courts had made a similar finding, that there was no expiry date for prosecution for crimes against humanity. These included Argentina, Australia, Canada, Chile, Estonia, Germany, Latvia, Spain, the United States, Uganda and Uruguay. The Inter-American Court had come to the same conclusion.
As a result, though South Africa is not a signatory to the Convention on Statutory Limitations, the judge found there can be no time bar for the prosecution of crimes against humanity committed in South Africa. Based on these findings, he found no violation of the accused's right to a fair trial.
Turning to the last question on political interference and undue delay in the prosecution, the Judge noted that it was regrettable that the NPA had taken so long to prosecute apartheid-era crimes referred to it by the TRC. Despite this, he said, the interests of justice still required the prosecution of such crimes, given their gravity and impact on South African society both in the past and present.
The judgment paves the way for the prosecution of hundreds of apartheid-era crimes which were referred to prosecution by the Truth and Reconciliation Commission.
This article first appeared on GroundUp. Read the original article here.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
The South African
4 hours ago
- The South African
Surviving to thriving: SPCA shares heartwarming update on Bobby
The SPCA has shared a heartwarming update on Bobby, a dog rescued after it was spotted in a viral TikTok video earlier this month. Images of the emaciated dog – who had been forced to eat plastic to survive – left many South Africans enraged and calling for action. Johannesburg content creator Sasha Tshiamo and the dog's owners are now facing charges of animal cruelty. Earlier this month, a TikTok video featuring Sasha Tshiamo dancing was posted on the X platform. The video quickly went viral because of an emaciated dog in the background. The animal's ribcage was clearly visible, and it appeared lethargic. Following a nationwide call, the SPCA stepped in, removing the dog – affectionately nicknamed 'Bobby' – from her shocking living conditions. The animal activists revealed that both the dog's owner – who willingly surrendered the animal – and the influencer were now facing animal cruelty charges. In a social media post, the SPCA shared an update about Bobby, who appeared to be thriving under their care. In a video clip, brave Bobby is seen wearing a winter jersey as she frolics in a garden and happily poses for pictures. The heartwarming caption read: 'One sad video, one brave dog, one second chance. 'Bobby's story didn't end in the background – it's only just begun! From a shadow of herself to a brave and beautiful girl. It turns out that all Bobby needed was a little love and some treats.' View this post on Instagram A post shared by NSPCA (@ According to the SPCA, Bobby will soon be up for adoption. The SPCA has repeatedly warned the public that animal abusers can be criminally charged under the Animals Protection Act 71 of 1962. The act – which was established to prevent the cruelty of animals – stipulates that those found guilty can face a fine or imprisonment. The SPCA rescued a starving dog that captured the hearts of South Africans. Content creator Sasha Tshiamo is now facing animal cruelty charges over the viral video. Images via X: @nspca_sa Offenders could also face a denial of ownership – preventing them from owning animals – as well as a criminal conviction. Let us know by leaving a comment below, or send a WhatsApp to 060 011 021 1 . Subscribe to The South African website's newsletters and follow us on WhatsApp , Facebook , X, and Bluesky for the latest news.
The South African
6 hours ago
- The South African
Duduzile claps back at Floyd Shivambu's 'takes drugs' comments
Duduzile Zuma-Samudla has finally responded to shady comments made by fellow MK Party MP, Floyd Shivambu. In a press briefing on Thursday, 19 June, the former secretary general accused his party nemesis of 'taking drugs'. Floyd was effectively demoted after the party condemned his visit to the wanted Malawian preacher, Shepard Bushiri, last month. On her Instagram Story, Duduzile shared a clip of herself laughing with EFF President Julius Malema. Like Duduzile, Floyd Shivambu threw Malema under the bus, claiming the latter was running a 'cult.' The daughter of Jacob Zuma captioned the clip: 'It's politics after all'. Image via Instagram: @duduzilezuma_sambudla Like Duduzile, Julius Malema has also subtly responded to Floyd Shivambu's comments. After the press conference, the 'CIC' reacted to Floyd's criticism of the EFF and those who supported him. Malema posted a clip of EFF top brass on X: 'The leadership we have is quite alright.' During the briefing, Floyd addressed several topics, including an interest in possibly establishing his own political party. The former MK Party secretary-general also used the opportunity to making shady comments about the ANC, which he labelled as 'directionless' and the EFF, which he called a 'cult'. Referring to his own party, Floyd made a comment many believe was directed at Duduzile, the daughter of the MK Party founder, Jacob Zuma. He said, 'When you raise issues internally, you don't need to gossip about them anywhere. All the issues and concerns I had about MK, I raised internally, even against all odds. When there is an opportunity to raise an issue about wrongdoings. I clearly speak against untouchables who take drugs, tweet at night, and insult us.' He added: 'We confront them and say 'What is this about?'' Let us know by leaving a comment below, or send a WhatsApp to 060 011 021 1 . Subscribe to The South African website's newsletters and follow us on WhatsApp , Facebook , X, and Bluesky for the latest news.
IOL News
8 hours ago
- IOL News
Fuel price pain as missiles fly
While missiles fly thousands of kilometres away, the effects of a deepening conflict between Israel and Iran are beginning to reach South African shores - not through politics or security, but through rising prices at the pump and pressure on already-stretched household budgets. A surge in global oil prices, triggered by military strikes on strategic energy assets and growing fears of supply disruption, is stoking inflation concerns that could ripple through the economy and stall any hopes of interest rate relief. The bombardment of Iranian military targets by Isreal erupted over a week ago as airstrikes targeted Iranian military infrastructure, including pivotal oil and gas facilities such as the South Pars gas field and the Shahr Rey oil refinery, provoking retaliatory missile attacks by Iran on major Israeli cities. This has raised alarm bells among market watchers, particularly given Iran's critical role as the third-largest oil producer within the Organisation of the Petroleum Exporting Countries (OPEC+), contributing around four million barrels of crude oil per day and controlling access to the vital Strait of Hormuz. The Strait of Hormuz is a crucial maritime chokepoint through which approximately 18–19 million barrels per day or 20% of global oil shipments pass, making any potential disruption a considerable concern for worldwide oil supply. Despite Iran maintaining crude exports at 2.2 million barrels per day amid the conflict, rising shipping costs and delays due to the potential blockade of this strategic waterway could influence inflation across the globe. Nolan Wapenaar, co-chief investment officer at Anchor Capital, on Friday said the blockade of the Strait of Hormuz would have far-reaching consequences for South Africa's economy. Wapenaar said this would obviously be a major blockage in the supply of oil to the rest of the globe. 'This could drastically impact the availability of oil and one would expect significantly higher prices. The clear impact in South Africa is higher inflation and quite potentially rising interest rates again,' Wapenaar said. 'The impact of a major supply shock to oil will be more pronounced and detrimental to South Africa. We would expect pressure on the terms of trade from rising oil prices, the South African rand could well weaken, exacerbating inflation pressures beyond just the impact of oil prices and supply.' According to the OPEC+, the global oil demand growth forecast for 2025 remains at 1.3 million barrels per day. The eight OPEC+ countries, which previously announced additional voluntary adjustments, have agreed to start a gradual and flexible return of the 2.2 million barrels per day by implementing a production adjustment of 411 000 barrels per day in July 2025 in view of a steady global economic outlook and current healthy market fundamentals. Analysts warn that the conflict has the potential to reshape power relations within the Middle East and influence OPECʼs internal dynamics as Iran's role as a major oil producer and its strategic position in the Gulf give it considerable leverage. Bianca Botes, director at Citadel Global, said the Strait of Hormuzʼs strategic importance cannot be overstated. 'Any disruption – whether due to military action, electronic interference affecting navigation systems, or blockades – could severely constrain global oil supply. Recent incidents, such as the collision and fire involving two oil tankers near the strait, have heightened these concerns,' Botes said. 'While OPEC members possess some excess production capacity that could theoretically offset Iranian supply losses, the risk of a prolonged or expanded conflict introduces significant uncertainty. 'Analysts warn that oil prices could spike to $100/barrel or even $120/barrel if supply through the Strait of Hormuz is disrupted. Such a price shock would reverberate through global markets, impacting inflation, consumer costs, and economic growth worldwide.' South Africa consumes around 530 000 barrels of oil per day, or more than 25 million litres of petroleum products each year, facilitated by imports and its three operational refiners. Petrol and diesel are the most important petroleum products, accounting for more than 85% of consumption. While the country refines imported crude oil, a portion of its fuel supply also comes from synthetic fuels produced from coal and natural gas. The increase in the fuel price would come as consumers are already battling with the high cost of living after the finance minister hiked the General Fuel Levy (GFL) by 16 cents per litre for petrol and 15 cents per litre for diesel — the first increase in three years — on the back of inflationary pressures. The price of Brent crude oil traded around $77 (around R1 390) per barrel on Friday, heading for a third consecutive weekly gain as escalating hostilities in the Middle East continued to fuel fears of regional supply disruptions. However, Investec chief economist Annabel Bishop allayed fears of any fuel supply shortages but said the blockade of the Strait of Hormuz would raise shipping costs, impacting inflation and also increase shipping delays. 'South Africa mainly gets oil from Africa and Saudi Arabia (which is expected to stay out of the conflict) so the supply is not expected to be interrupted,' Bishop said. 'We are less impacted as we get our oil supply from Africa not the middle east and are food secure. We would be impacted on price not supply as all oil is priced off Brent crude.' Rising oil prices have immediate and far-reaching consequences. Higher crude costs translate into increased transportation and manufacturing expenses, feeding into broader inflationary pressures. This dynamic can slow economic activity by reducing consumer purchasing power and increasing production costs. Inflation in South Africa has held steady at 2.8%, paving the way for potential interest rate cuts though several factors may yet cause the Reserve Bank to adopt a more hawkish stance. Everest Wealth CEO, Thys van Zyl, said rising tensions in the Middle East and discussions about lowering South Africa's inflation target band were two key concerns that could temper expectations of further rate cuts. 'This conflict could quickly filter through to fuel prices and transport inflation – and that will narrow the room for rate cuts,' Van Zyl said. 'Although food inflation rose sharply in May due to the impact of foot-and-mouth disease on beef prices, transport inflation was the only category with negative growth thanks to the past year's decline in fuel prices – which helped keep overall inflation low.' BUSINESS REPORT
