Africa-Press – South-Africa. The police ministry remains resolute in refusing to fund the defence of former apartheid Security Branch police officer Christian Siebert Rorich, insisting that his alleged part in the 1982 assassination of the “Cosas Four” does not fall under the normal duties of a police officer.
The police ministry is liable for the actions of police officers if they fall foul of the law, and this extended to officers who were agents of the apartheid state.
This dispute had caused a delay in Rorich’s trial and his co-accused, former askari Tlhomedi Ephraim Mfalapitsa.
On Friday, the Gauteng High Court in Johannesburg heard arguments on whether it should compel SAPS to pay Rorich’s legal fees by exercising its inherent powers to protect and regulate its own process as set out in section 173 of the Constitution.
The application was brought by Webber Wentzel attorneys, who are representing some of the Cosas Four family members. SAPS’ refusal to pay the fees had delayed the matter.
The lawyers pointed out that police were bound by a 2018 judgment handed down by Judge Coetzee, in a murder case also involving Security Branch members, which found, among other things, that SAPS was the successor in title to the then apartheid’s South African Police (SAP) and assumed the latter’s liabilities and responsibilities.
State attorney DJ Joubert, representing the police, argued that based on the crimes Rorich was charged with, SAPS was not responsible for his legal fees.
“The criminal charges the accused is facing is murder, kidnapping and crimes against humanity; clearly those are acts that aren’t ordinarily committed by a police officer in the execution of his duties. The issue here is that when Mr Rorich was charged, [he] approached SAPS to request legal assistance and that application was refused by SAPS,” he said.
He added:
Judge Ratha Mokgoatlheng asked how Joubert could make the conclusion that Rorich was “hard pressed” when he intended to plead not guilty.
Advocate Thai Scott, representing the families, argued that there were plenty of examples where apartheid police acted outside the ambit of their duties. He also emphasised that SAPS could not dismiss the findings made by Coetzee.
“It would constitute an abuse of both the criminal and civil court processes for the SAPS to now dispute the Coetzee judgment when it had ample opportunity to do so in those proceedings. Forcing Rorich to launch fresh civil proceedings to review the refusal of the SAPS to pay his reasonable legal costs is likely to delay the Cosas Four criminal trial for at least two years,” said Scott.
Scott also spoke about the harm a delay in the case could cause.
“The accused in Cosas Four are elderly and may very well die during this delay. This would amount to a grave injustice given that the case has already been delayed for decades. In the circumstances, the refusal to pay the legal defence of Rorich, when the SAPS is legally obliged to do so, seriously undermines the interests of justice as it will delay the trial for years,” he said.
In 2021, Rorich, who was an explosive expert and Mfalapitsa, were charged with the murders and kidnappings of Eustice “Bimbo” Madikela, Ntshingo Mataboge (Matubane) and Fanyana Nhlapo.
They were killed by an explosion inside a pump house at a Krugersdorp mine on 15 February 1982.
According to the State, the trio and Zandisile Musi, who survived the incident, were lured into the mine by Mfalapitsa under the pretence that they were to receive military training.
Mfalapitsa was a member of uMkhonto we Sizwe, but defected by joining the Security Branch police and working against his former ANC comrades.
He is alleged to have contacted Musi, whose two elder brothers he had a close relationship with from serving with them in the MK while in exile.
After Rorich was charged, he applied to SAPS to foot his bill, and in February 2022, his application was dismissed.
Judgment will be handed down on 26 April.
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