Background: The COSAS Four Murders

On 15 February 1982, Mfalapitsa, then an “askari” working for the notorious apartheid death squad Vlakplaas, lured four teenage boys under false pretences to a disused mine shaft in Kagiso, Gauteng. Posing as a military trainer for Umkhonto we Sizwe (MK), he locked the boys in a building rigged with explosives. Three were killed—Eustice “Bimbo” Madikela, Ntshingo Mataboge, and Fanyana Nhlapo. A fourth, Zandisile Musi, survived with serious injuries and has since passed away.

These teenagers were members of the Congress of South African Students (COSAS), an anti-apartheid youth movement. Their deaths came to symbolize the cruelty and calculated violence of the apartheid regime.

Amnesty Denied in 2001

Mfalapitsa, along with four other Vlakplaas operatives, sought amnesty under the Promotion of National Unity and Reconciliation Act 34 of 1995. To qualify, applicants had to meet three conditions:

1. Full disclosure of all relevant facts.
2. Proof that the act was politically motivated.
3. Demonstration of proportionality between the act and the political objective (section 20(3)(f)).

While the TRC Amnesty Committee accepted that Mfalapitsa had disclosed his role and acted under political auspices, a majority of the committee found the murders disproportionate to any political aim. The boys were entrapped and manipulated into appearing as threats. Their elimination, the committee held, was premeditated and avoidable.

A minority opinion, penned by one committee member, believed proportionality had been met, but this view did not prevail.

The 2024 Review Application

Over two decades later—and mere weeks before his scheduled murder trial—Mfalapitsa approached the court to review and set aside the TRC’s refusal to grant him amnesty. He also sought a substitution of that decision with one granting him full indemnity.

Justice Wilson dismissed the review, primarily on the merits, although the application was also hopelessly out of time. The judgment, however, exercised judicial discretion to overlook the delay for the sake of finality and clarity in the pending criminal prosecution.

Legal Principles Extracted

Several key legal principles emerged from this ruling:

1. Section 20(3)(f) of the Reconciliation Act requires that amnesty applicants show that their acts were proportional to the political objectives they sought to advance. Even in the context of conflict, proportionality remains a constitutional standard that cannot be sidestepped.
2. Review under PAJA (Promotion of Administrative Justice Act 3 of 2000): Amnesty Committee decisions qualify as administrative actions subject to judicial review. Applicants must bring such reviews within 180 days unless extended under section 9(1) in the interests of justice.
3. Delay in Review Proceedings: A delay of more than two decades, as in this case, is unjustifiable without strong merits or reasonable explanation. Justice Wilson accepted that prosecution urgency warranted a judicial determination, not that the delay was excusable.
4. Error of Law Argument: The court rejected Mfalapitsa’s argument that the Amnesty Committee misapplied proportionality. The majority’s contextual and detailed application of section 20(3)(f) was endorsed.

Conclusion

Justice Wilson’s decision underscores the moral and legal gravity of apartheid-era crimes. The ruling ensures that perpetrators cannot sidestep justice through procedural manoeuvres long after the fact. Most importantly, it affirms that the right to truth and accountability endures, even forty years after the act.

The criminal prosecution against Mfalapitsa for the murder of the COSAS Four is set to proceed shortly.

Nikhiel Deeplal acted on behalf of the Minister of Justice and Correctional Services and the National Director of Public Prosecutions who successfully opposed the application. He led Ms S Masitenyane in the matter.

Read Judgment here