TRC ROULETTE : SAPS refusal to pay legal costs stalled post-TRC Simelane prosecution, Nhleko tells Khampepe Commission

In 2016, when four retired former apartheid-era Crime Intelligence members were set to appear in court for the 1983 abduction, murder and disappearance of ANC courier Nokuthula Simelane, the process ground to a sudden halt.This was as a result of the South African Police Service’s (SAPS) refusal to fund the alleged perpetrators’ legal costs, former police minister Nathi Nhleko testified on Wednesday, 9 September, at the Khampepe Commission of Inquiry. He acknowledged the consequences of the withholding of legal fees, while distancing himself completely from the decision-making process.Former police minister Nathi Nhleko. (Photo: Siyabulela Duda / GCIS / File photo)The disappearedSimelane, an ANC courier and student activist, was 23 when she was abducted outside the Carlton Centre in Johannesburg by security branch members Warrant Officer Willem Helm Johannes Coetzee and sergeants Anton Pretorius and Frederick Mong, who were charged in 2016 alongside Msebenzi Timothy Radebe. The student was held captive above the police barracks in Norwood, Johannesburg, for two weeks before being transported to a private farm near Northam, in what is now Limpopo. Her remains have never been recovered. She was betrayed by Norman “Scotch” Mkhonza, a policeman working for the Soweto Security Police who had infiltrated the ANC as a deep-cover agent.Coetzee, Pretorius and Mong applied to the Truth and Reconciliation Commission (TRC) for amnesty but only for the abduction of Simelane, not her murder. Only two of the alleged perpetrators are still alive: Coetzee, who gave the command for the kidnapping, and Pretorius.Coetzee has since claimed that he is not “cognitively competent”; however, in 2024 he was declared competent to stand trial after observation at the Weskoppies Psychiatric Hospital.Fully preparedIn February this year, Andrew Leask, lead investigator for the now-disbanded Directorate for Special Operations (the Scorpions), told the commission that the case against the Simelane accused had been fully prepared for trial. However, the process had been abruptly halted in 2004 when then justice minister Brigitte Mabandla ordered the National Prosecuting Authority to freeze all TRC-related cases.Thirty-three years after Simelane’s abduction, the retired officials were finally charged. And just as the truth was about to be tested the SAPS declared it would not pay their legal fees.The men took the SAPS to court, with Judge Cynthia Pretorius, in the Pretoria High Court, ruling in their favour, holding that the SAPS (as successor in title to the South African Police) had assumed its former liabilities and was legally obligated to fund their reasonable legal defence costs. The SAPS elected not to appeal this judgment.Nhleko acknowledged that this refusal of legal funding had a direct impact on delaying and effectively stopping the prosecution of the accused in the Simelane case.In 2016 the now-embattled Lieutenant-General Khomotso Phahlane served as acting police commissioner.Nokuthula Simelane. (Photo: Courtesy of the family) Not my mandateNhleko said the decision to deny legal funding was made by designated SAPS officials rather than by the minister himself.He noted that the individual police officials responsible for that decision were explicitly identified in the 2016 high court application brought by the men accused of murdering Simelane. Legal-fee funding was an administrative and operational matter handled directly within SAPS and he had no personal decision-making role in it, Nhleko told the commission.It was the national police commissioner, who held “sole operational command” over police investigations, strictly separated from the political and strategic role of the police minister. Nhleko noted that Section 205(3) of the Constitution mandated the police service to investigate crime. He emphasised that the national commissioner was “the official operating at the operational level who takes the lead in investigating TRC cases”.No political interferenceThe former minister maintained that he had no control over TRC dockets, as attempting to direct the national commissioner’s operational work would have amounted to “unlawful political interference”.The administrative decisions and refusals regarding state-funded legal representation were handled directly within the SAPS legal division (administered by designated provincial and national legal division heads, such as the head of the SAPS legal division), he said.By classifying docket management, investigative priorities and litigation funding as purely operational, the former minister shielded himself against charges of both active political interference and a failure to act.His submission placed the sole responsibility for any administrative or investigative paralysis in TRC prosecutions onto the national police commissioner and senior SAPS operational leadership.A family’s questSimelane’s mother, Ernestina, and her sister, Thembi Nkadimeng, have fought for more than three decades for the perpetrators to reveal the truth about their deeds. For five years the family tried to track Simelane’s friends who had been in Angola, Mozambique, Swaziland and even the USSR hoping that she had opted to go into exile. But still there was no news and no body.In 2016 Ernestina said she had hoped to “get answers before they go to their graves with their horrible secrets. I go to bed and dream of Nokuthula calling me for help. I want my baby’s grave to talk to her, to bring her home and to bury her with the dignity she deserves”. DM