On 14 April 2025, the High Court in South Africa handed down judgment in a challenge by two accused to charges brought against them by South Africa’s National Prosecuting Authority (NPA). The charges concern an attack on 15 February 1982 by the South African Police on the COSAS 4—Eustice Madikela, Peter Matabane, Fanyana Nhlapo and Zandisile Musi—members of COSAS, a national student movement opposed to apartheid. Madikela, Matabane and Nhlapo were killed; Musi was seriously injured. The accused, Tlhomedi Mfalapitsa and Christiaan Rorich, are the only perpetrators of the attack still alive. In 1999, they, along with three other perpetrators, applied for amnesty before the Truth and Reconciliation Commission (TRC), disclosing that they had lured the victims to a pumphouse near a mine in Krugersdorp under the pretence of providing military training. There they blew up the victims. The TRC refused the amnesty applications in 2001, finding that there was an insufficient nexus between a political objective and the crime (one of the criteria for the grant of amnesty under Section 19 of the Promotion of National Unity and Reconciliation Act 1995). The TRC referred the matter, along with many other cases, to the NPA in 2003.
The High Court’s decision is an important step in what is often called the unfinished business of South Africa’s Truth and Reconciliation Commission. To recall, one underlying assumption of the TRC was that perpetrators who refused to engage with the amnesty process, or who were refused amnesty, would be liable to prosecution. As has been widely documented, very few prosecutions followed, with the High Court finding in 2019 in relation to the death in custody of Ahmed Timol that, in the period 2003-2017, ‘political interference resulted in TRC cases … not receiving the necessary attention by virtue of investigation that could have led to a decision to prosecute.’ Following tireless work by the families of victims, their lawyers, and civil society, as well as the decision of the Supreme Court of Appeal in Rodrigues, there is some movement on a number of cases, including the killing of the COSAS 4. After summarising the High Court’s decision, this post draws attention to four aspects of the decision.
The High Court’s Decision in The State v Mfalapitsa and Rorich
The High Court’s decision concerned objections to charges brought by the two defendants under Section 85(1) of the Criminal Procedure Act of 1977. As noted above, the defendants, Tlhomedi Mfalapitsa and Christiaan Rorich, are the two perpetrators of the attack on the COSAS 4 still living; Jan Coetzee, Willem Schoon and Abraham Grobbelaar passed away in the long-delay between the amnesty hearings and the initiation of these proceedings, as has been the case in relation to a number apartheid-era crimes. Of particular interest is the defendants’ objection to the main offences – counts two, three, four, and five of the indictment. Put together, these main offences are:
Counts 2-4: the crime against humanity of murder under customary international law, read with Section 232 of the Constitution, relating to the deaths of Eustice Madikela, Peter Matabane, Fanyana Nhlapo.
Count 5: the crime against humanity of apartheid under customary international law, read with Section 232 of the Constitution, in that the accused killed Eustice Madikela, Peter Matabane and Fanyana Nhlapo.
These are separate counts, even though the underlying act of apartheid is murder. In addition, the indictment charges kidnapping, as well as ordinary murder under domestic law as an alternative to counts 2-4. As a result, even if a conviction is not secured on the charges of crimes against humanity, or, as discussed below, any of the charges of crimes against humanity are subsequently excluded on appeal, the other charges would remain unaffected.
The core objection of the accused (para. 25) was that these counts of crimes against humanity under custom did not fall within the exceptions from the 20-year prescription period set out in Section 18 of the Criminal Procedure Act. Section 18(g) of that Act does exempt from prescription the crime of genocide, war crimes, and crimes against humanity under the Implementation of the Rome Statute of the International Criminal Court Act of 2002 (‘ICC Act’). Yet, this was not the basis of the indictment, given that the ICC Act is prospective only. Rather, the charges were based on the direct application of customary international criminal law in terms of Section 232 of the Constitution, which reads: ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.’ On this basis, the accused argued that the offences had prescribed. In addition, the accused argued that the charges infringed the principle of legality, as protected under Section 35(3)(l) of the Constitution.
The High Court rejected the accused’s objections, holding (para. 91): ‘[T]he objection raised by the accused, based on the principle of legality as being a ground for the inability of the State to prosecute the accused for a crime against humanity of murder, read with s232 of the Constitution, is without merit and is dismissed. Furthermore, the contention that the State’s right to prosecute them for crimes against humanity under customary international law having lapsed is also without merit.’ Objections to an indictment or charge are generally not appealable before the conclusion of the trial in South African domestic law. Rather, the matter would normally now proceed to trial. The accused would then have the option to seek to appeal upon conviction for any of the impugned charges to the Supreme Court of Appeal, and then, subsequently, the Constitutional Court. Exceptionally, an objection to a charge may be rendered appealable to the higher courts before trial and conviction if it is deemed to be necessary in the interests of justice. This is a fact-dependent judicial determination, the outcome of which would be difficult to predict in these circumstances, given the nature of the charges in question.
Four Points
From a wider perspective, four points may be drawn out. First, the decision envisages the direct application of customary international criminal law in domestic courts. In its 2014 judgment in the National Commissioner case, the Constitutional Court confirmed that Section 232 of the Constitution envisages direct application of customary international law, including in the criminal context (paras. 37, 40). As Kemp and Nortje note, these proceedings may be seen as an application of this decision, which is far-reaching in its potential effects. Moreover, it may be taken as further confirmation that South African courts do not understand the principle of legality to entail any requirement of written law. The South African Bill of Rights provides that the right to a fair trial includes the right ‘not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted’ (Section 35(3)(l), emphasis added). This includes customary international law. Indeed, the judgment finds that custom ‘establishes the duty to investigate and prosecute international crimes, such as extrajudicial killings, torture and enforced disappearances’ (para. 31, emphasis added).
Second, this conclusion is consistent with international law. Informed by a survey of practice, in 2006 Ferdinandusse argued that the ‘international principle of legality, whether under customary law or as defined in human rights treaties, does not exclude unwritten law from the notion of lex’ (p. 236). It is hard to imagine that this conclusion is different today, even if at the level of principle there are scholarly objections to reliance on unwritten law in criminal proceedings. Thus, for instance, in January 2022, the European Court of Human Rights found no violation of Article 7 ECHR—no punishment without law—in relation to the conviction of the applicant on the basis of command responsibility for war crimes. The Court held that the requirement of accessibility under Article 7 ‘does not exclude reliance being placed on a law which is based on custom’ (para. 63). Similarly, the nullum crimen provision of the ICCPR—Article 15(1)—refers to international law as a possible source of criminalization, even before the explicit exception for the trial and punishment of acts ‘criminal according to the general principles of law recognized by the community of nations’ under Article 15(2).
Third, given the possibility of the direct application of custom and the absence of a written law requirement, the key question was thus whether apartheid had crystallized as a crime at the time of the offence—that is, by 1982 (paras. 42, 62). This is required by both the international and domestic constitutional principles of legality, even if it is true, as Ambos notes, that the nullum crimen principle in international law has often operated as ‘a substantive maxim of justice which calls for punishment always if justice so requires.’ On this question, the High Court’s reasoning is somewhat quick, insofar as the Court simply notes: ‘This should not be a difficult exercise for the State in the matter in casu, as crimes against humanity have been crimes under international law since their codification in the 1945 Nuremburg Tribunal charter’ (para. 64). One problem, here, is that the principle of legality cannot operate at such a level of generality—crimes against humanity in general—rather than in relation to specific elements (and modes of liability) of the precise offence charged.
For murder as a crime against humanity, no issues arise given its acceptance and application in practice from at least Nuremberg onwards. For apartheid, there is some debate in the literature. Eden, for instance, has challenged what he terms the ‘dominant narrative’ that the ‘apartheid system in South Africa was a crime against humanity under customary international law giving rise to individual criminal responsibility.’ One issue, as Eden notes, is that the Apartheid Convention does not approach universal or quasi-universal ratification. Even today, the Convention has only 110 States Parties; South Africa, for its part, only joined in 2024. Others have taken this position too; Zahar raised certain doubts in 2009, as did Cassese in 2008.
In this respect, it is beyond genuine contestation that apartheid was prohibited in customary international law as a State wrong at the relevant time. By 1982, the international community had explicitly and consistently articulated its condemnation—and understanding of the wrongfulness—of the system of apartheid in South Africa. By this point, such practice was virtually universal. As Tladi puts it in his 4th Report as ILC Special Rapporteur on peremptory norms, this amounted to the ‘complete and total rejection of the policy of apartheid and the discriminatory policies attendant to it…’ (para. 98).
As to its status as a crime, the non-universal ratification of the Apartheid Convention—with its jurisdictional and other obligations—does not necessarily indicate that the underlying substantive offence is not (and was not) proscribed in custom. In our view, significant State practice and opinio juris prior to the offences should be read as pertaining not only to the State wrong but also apartheid’s criminalization under customary international law. Thus, for instance, in the General Assembly, UNGA Resolution 2396 of 1968 reiterated the Assembly’s ‘condemnation of the policies of apartheid practiced by the Government of South Africa as a crime against humanity’. Resolution 2396 was passed by 85 votes to 2, with 14 abstentions, and is emblematic of the UNGA’s repeated and consistent description of apartheid as a crime under international law. In the Security Council, UNSC Resolution 473 of 1980 ‘reaffirm[ed] that the policy of apartheid is a crime against the conscience and dignity of mankind.’ Resolution 473 was adopted unanimously. Although caution is required, these resolutions provide important evidence of States’ collective understanding of the position in custom, particularly in the light of the language used and their degree of support (ILC, Conclusion 12).
Fourth, the High Court found that crimes against humanity are not subject to prescription (para. 83). The prescription question is largely a matter for domestic statutory and constitutional interpretation, and therefore beyond the scope of this analysis. As to international law, as the judgment correctly notes, South Africa is not a party to the Convention on the non-applicability of Statutory Limitations to War crimes and Crimes against Humanity. Nonetheless, the High Court’s finding is consistent with the general position in international law and practice. For instance, Article 29 of the Rome Statute provides: ‘The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.’ Similarly, there are countless domestic prosecutions of international crimes, particularly those committed during the Second World War, many decades after commission. It is probably not the case—contrary to High Court’s suggestion (paras. 70, 74)—that non-prescription follows from the peremptory status of the underlying wrongs, though the High Court is not the first to suggest that (see e.g. the Trial Chamber in Furundžija, para. 157). But that is a minor point which does not undermine the main finding.
Conclusion
This prosecution may be the beginning of the long-delayed fulfilment of the TRC’s call for a ‘bold prosecution policy in order to avoid any suggestion of impunity…’ In addition, it raises one other issue of general interest. The charge of apartheid as a crime against humanity is the first application of this crime. As this respect, it is the murder of Eustice Madikela, Peter Matabane and Fanyana Nhlapo that is charged as the underlying act of apartheid—an enumerated act in both Article 2(a)(i) of the Apartheid Convention and implicitly as an inhumane act under Article 7(1)(j)/7(2)(h) of the Rome Statute. However, it is worth noting that the definition of apartheid in the Apartheid Convention captures a wider range of conduct than simply infringements of life and bodily integrity. Article 2(c), as an inhuman act, refers to:
Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups.
The promise, here, is the criminalization at the international level of systemic policies and practices of discrimination—particularly in relation to rights of movement, labour, property, and education, as well as equal access to public goods. It is the criminalization of practices that do not necessarily involve violence, in the narrow sense, to life, liberty or bodily integrity.
It may be the case that future prosecutions in South Africa focus on specific violations by the sharp edge of the apartheid State—enforced disappearance, torture, murder. Moreover, it is also the case that criminal accountability can only be one aspect—and one with serious in-built limitations—of measures of redress. Nonetheless, as a matter of law, the High Court’s decision is important in its recognition of apartheid as a discrete crime against humanity under international law.