On 20 May 2015, Thembi Nkadimeng filed an application before the Gauteng Division of the High Court seeking to compel the National Director of Public Prosecutions (NDPP) to make a decision in respect of the 32 year old disappearance of her sister, struggle heroine Nokuthula Simelane.
Nokuthula Simelane was abducted, tortured and forcibly disappeared by members of the Security Branch of the former South African Police in 1983. She was a 23 year old university graduate and acted as a courier for Umkhonto we Sizwe, the armed wing of the African National Congress, moving between Swaziland and South Africa. Her remains have never been found. The family has been denied the right to bury their daughter with the dignity she deserves.
In 1996, a police docket was opened and in 2001 the Amnesty Committee of the Truth and Reconciliation Commission (TRC) granted some of the perpetrators amnesty for Nokuthula's abduction, including certain police officers who the Committee found had lied about the brutal torture. This was notwithstanding the full disclosure requirement laid down in the TRC law. None of the perpetrators applied for amnesty for her murder.
Until the launching of this court case, and despite repeated requests, the Office of the NDPP had not taken a decision in respect of the kidnapping, torture and likely murder of Simelane. They also declined or failed to institute criminal proceedings in respect of those former Security Branch officers who did not apply for amnesty.
The NDPP and the Minister of Justice and Correctional Services filed notices of intention to oppose the application on 27 July 2015.
The former Security Branch officers who have indicated through their attorney that they will not oppose the application are Willem Helm Coetzee, Anton Pretorius and Frederick Barnard Mong. Timothy Radebe, and Willem Schoon, who was the former Commander of the SAP's Security Branch C1 Section, have not filed notices to oppose. Interestingly, Radebe and Schoon never applied for amnesty at all.
Other respondents who have not filed notices to oppose are the National Commissioner of the South African Police and the National Minister of Police.
In response to the application to court, the NDPP has indicated that it will establish an inquest before the High Court into the death of Nokuthula Simelane. According to the State Attorney, on 24 July the NDPP submitted a memorandum in terms of the Inquest Act to the Minister of Justice and Correctional Services with the request that he approach the Judge President of the Gauteng Division to designate a judge to preside over the inquest. However, the NDPP and the Minister of Justice have declined to provide an undertaking that the inquest will be established within a reasonable period of time.
The NDPP and the Minister of Justice have also declined to consent to a court declaration that the prolonged delay in finalizing Simelane's case represents a gross violation of the right of Simelane's family to human dignity and to redress under the rule of law; and that it has effectively prevented the family from reaching closure and substantially impaired the prospects of justice being served.
The legal representatives of the family have informed the State Attorney that the NDPP and the Minister of Justice must file their answering affidavits by no later than Monday, 17 August 2015.
Thembi Nkadimeng is being assisted by the Southern Africa Litigation Centre, and is represented by Advocate Muzi Sikhakhane, Advocate Howard Varney and Webber Wentzel Attorneys.