South African court allows murder charges as crimes against humanity in Cosas 4 case

In a world-first legal ruling, a judge sitting on the Gauteng Division of the High Court in Johannesburg on Monday ruled that two men charged with killing the Cosas 4 can be charged with the international crime of murder as a crime against humanity.

The Foundation for Human Rights (FHR) and the Legal Resources Centre (LRC) welcomed the historic judgment handed down by Judge Dario Dosio in the Gauteng Division of the High Court in Johannesburg.

The ruling dismissed legal objections to the bringing of charges of crimes against humanity in the Cosas 4 matter. 

“This decision affirms the State’s obligation to investigate and prosecute international crimes committed in South Africa before and after 1994, and marks a critical milestone in the pursuit of accountability for apartheid-era atrocities,” read a joint statement from the FHR and LRC. 

The case before court dealt with the apartheid crime prosecution of members of the former Security Branch implicated in the deaths of Eustice “Bimbo” Madikela, Ntshingo Mataboge, Fanyana Nhlapo and Zandisile Musi, known as the Cosas 4. 

They were members of the Congress of South African Students (Cosas) who were lured by the Security Branch to a pumphouse near Krugersdorp on 15 February 1982.  The police had rigged the pumphouse with explosives, which they detonated once the four were inside.  All were killed, except for Musi, who was seriously injured and has since died.  

Two former members of the Security Branch — Christiaan Siebert Rorich, a former Security Branch explosives expert, and Tlhomedi Ephraim Mfalapitsa, a former Vlakplaas askari — were charged with kidnapping and murder as a crime against humanity. 

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They filed objections to being charged with a crime against humanity, saying this crime had prescribed under the Criminal Procedure Act, which provides for a statute of limitations. 

Dosio said in his ruling that customary international law forms part of South African law. It is directly applicable and does not require separate laws to be enforced domestically.  

He added that the State had an obligation to investigate and prosecute international crimes, like murder as a crime against humanity both before and after 1994. Dosio added that the Constitution provided an independent legal basis for the State to fulfil these obligations.  

He continued to rule that apartheid as a crime against humanity can be prosecuted in a South African court. 

“The non-prescription of crimes against humanity and war crimes constitutes a peremptory norm under international law, and applies to serious international crimes committed in South Africa before and after 1994,” Dosio added.

“This ruling confirms the State’s authority to proceed with the crimes against humanity charges. This is a moment of profound legal and historical significance. It is the first time in South Africa that a domestic criminal court will hear a criminal case involving crimes against humanity. It is also the first time that apartheid as a crime against humanity will be prosecuted anywhere in the world,” reads a joint statement by the FHR and LRC.

“The judgment sends a powerful message that no one is above the law and that justice can prevail — even decades later.”

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An application for Dosio’s recusal will be heard on Wednesday, 16 April.

“The FHR and the LRC continue to stand with the families of the Cosas 4 and all those who have fought tirelessly for truth, justice and accountability. This judgment is a testament to their persistence and a step forward in the long journey towards redress and historical justice,” the statement added.

The ruling was also welcomed by the ANC. National spokesperson Mahlengi Bhengu-Motsiri said they also salute the persistence of the families. 

“We urge all South Africans to draw strength and vigilance from this moment,” she added. DM

Read the story of the Cosas 4 here.