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.
-AllAfrica
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