Criminal Court in South Africa Confirms Charges in Historic First Prosecution of the Crime Against Humanity of Apartheid

[Gerhard Kemp is professor of criminal law at UWE Bristol, and extraordinary professor of public law at Stellenbosch University]

On Monday, 14 April 2025, the high court in Johannesburg issued an important ruling in the historic first criminal prosecution of two individuals for the crime against humanity of apartheid. The ruling is a significant victory for the prosecuting authority, civil society and for the victims of apartheid. 

The ruling concerns an application by the accused against the charges upon which they are to be arraigned. The two individuals, former members of apartheid-South Africa’s Security Police, are charged with kidnapping, murder (as a crime against humanity under customary international law, alternatively murder under common law), and the crime against humanity of apartheid under customary international law. Both accused objected to the inclusion of the main counts of murder as a crime against humanity, and apartheid as a crime against humanity in that the State’s right to institute a prosecution has lapsed in terms of the Criminal Procedure Act, 1977 (the alleged crimes were committed more than forty years ago, in February 1982). One of the accused also objected to the National Prosecuting Authority’s (‘NPA’) right to prosecute in this matter, given that the NPA and the Government of South Africa committed ‘gross misconduct’ by engaging in political interference in the cases referred by the Truth and Reconciliation Commission (‘TRC’), to the NPA’. The post-apartheid state’s failure to deal with apartheid-era crimes and political interference in the investigation of these cases have been the focus of civil society for many years and even the Supreme Court of Appeal was highly critical of the interference and delays. 

The present comment focuses on the first objection and on the implications of the court’s ruling for the prosecution of the crime of apartheid under customary international law in South Africa and beyond. 

The COSAS Four Case and the First Indictment for Apartheid

The ruling by the high court is an important milestone in the domestic application of international criminal law, specifically as it pertains to the prosecution of crimes under customary international law, notably apartheid as a crime against humanity. The two accused individuals, TE Mfalapitsa and CS Rorich, were indicted in 2021 for the crimes that were allegedly committed in February 1982 when members of the anti-apartheid Congress of South African Students (‘COSAS’), were kidnapped. Three of the victims were killed, and there was an attempt to kill the fourth victim. The victims became known as the ‘COSAS Four’. The two accused are part of a cohort of potential accused persons referred to the NPA by the post-apartheid TRC. Part of the TRC mandate was to consider apartheid-era crimes and applications for amnesty for these crimes. Some of the applications were unsuccessful, or in some instances potential applicants failed to apply for amnesty. The TRC, which published its report more than twenty years ago, recommended prosecutions of individuals responsible for apartheid-era crimes, including some of those who were denied amnesty. Mfalapitsa and Rorich were two of those who unsuccessfully applied for amnesty. Their amnesty application concerned the conspiracy to kidnap and kill members of COSAS. The Amnesty Committee of the TRC found that the deaths of three of the COSAS Four were attributable to members of the security police, including Mfalapitsa and Rorich, but the Committee was not satisfied that there was any ‘direct or proximate relationship or nexus between the offences and the political objective which the Applicants allegedly pursued’. This ‘political objective’ refers to the applicants’ submission that they have acted to protect and maintain the previous (apartheid) regime. 

The Lapse of Time and a Statute of Limitation

Mfalapitsa and Rorich were indicted in 2021, approximately forty years after the alleged crimes had occurred, on 15 February 1982. In South African criminal procedure, the right to institute a prosecution for any crime, other than the exceptions provided for in the Criminal Procedure Act, lapses after the expiration of a period of twenty years from the time when the alleged crime was committed. Historically, the exceptions included the most serious common law offences (murder, rape, treason) and a few statutory offences. The Criminal Procedure Act was later amended to include the crimes under the Implementation of the Rome Statute of the International Criminal Court Act, 2002, namely genocide, crimes against humanity, and war crimes. The crime of apartheid is included as an exception, because apartheid is a crime against humanity under the Implementation Act (incorporating the definition of the crime as provided for in the Rome Statute of the ICC). The text of the revised Criminal Procedure Act provides that the exception will apply to the crimes ‘as contemplated in the Implementation of the Rome Statute of the International Criminal Court Act’. The statutory exception does not refer to crimes under customary international law. This is why the accused objected to the charges of murder as a crime against humanity and apartheid as a crime against humanity under customary international law. They were charged, not under the Implementation of the ICC Act (which entered into force in 2002 and without retroactive or retrospective operation, thus excluding crimes committed before 2002), but rather for the customary international law crimes of murder as a crime against humanity and apartheid as a crime against humanity. As we will see, both these customary crimes are incorporated directly into South African law via section 232 of the Constitution, which provides that customary international law is law in South Africa, unless it is in conflict with the Constitution or with an Act of Parliament. 

Key Parts of the Ruling: Apartheid Was a Customary Crime in 1982 and Prescription Does Not Apply

The court in the COSAS Four case has noted that South Africa has not ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. However, since the non-applicability of statutes of limitations to serious crimes (including crimes against humanity) has become a peremptory norm of international law, the court held that ‘South Africa is bound by such norm whether or not it has ratified the Convention on Statutory Limitations or not’ (para 76). The principles in the Convention are also ‘part of customary international law’ (para 77). The court also referred to other sources (including interpretation clauses in South Africa’s Constitution) to conclude that the ‘crimes which the accused are charged with are imprescriptible’ (para 83). This includes the crime of apartheid under customary international law. The long delay in the prosecution is not a defence and it does not waive the State’s right to prosecute. It is important to remember that the issue before that court is whether the State has the right to institute a prosecution for crimes against humanity (murder and apartheid) committed in 1982. As noted, the legal basis for such a prosecution is not the Implementation of the ICC Act (which only entered into force in 2002, with no retrospective operation), but rather customary international law as incorporated into South African law via the Constitution. The court could not have been clearer: Customary international law provides an ‘independent legal basis’ for the State to prosecute international crimes, and the crimes for which the accused are being charged with (including murder as a crime against humanity and apartheid) ‘were crimes under customary international law at the time they were committed in 1982’ (para 87). The court’s ruling is therefore not only important in terms of the question of prescription of international crimes, but also in terms of the foundational issue of legality. The court has yet to apply the elements of the crime of apartheid to the facts of the case but, from a legality point of view, it is important to note the court’s analysis of the various sources, for instance UN resolutions and the Apartheid Convention of 1973 (all of which predate the crimes charged in the COSAS Four case) and which led the court to conclude that if ‘it can be demonstrated that apartheid as a crime against humanity passed into customary international law prior to the crimes committed in the matter in casu, namely on 15 February 1982, then the NPA is entitled to proceed with such charges’ (para 42). Importantly, the court held that even if the charges of murder as a crime against humanity and apartheid were non-existent offences in South Africa at the time of their commission (they obviously were not specified crimes in the criminal law of apartheid South Africa), but were nevertheless offences under customary international law at the time of their alleged commission. The court also pointed out that customary international law has been an integral part of South African law even during the apartheid-period, which ended in 1994 (para 43).

The Significance of the Ruling

No individual has ever been convicted of the crime of apartheid. The prosecution in the COSAS Four case still needs to prove their case. The prosecution will have to prove the elements of the crime of apartheid under customary international law, which include the specific intent element, namely that the acts of apartheid must be committed for the ‘purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’. But the ruling by the high court in Johannesburg now allows for a criminal court to consider and apply the elements of the crime of apartheid under customary international law, even in a situation where the alleged crime was committed several decades ago. This is a significant development. It is right that this historic case is proceeding in South Africa, the paradigmatic case study of apartheid. Of course, the crime of apartheid is fully emancipated from the South African precedent, with possible, even plausible cases elsewhere in the world. For instance, the referral, on behalf of several states including South Africa, of the situation in Palestine to the Prosecutor of the ICC, draws specific attention to the crimes ‘involving the establishment of a system of apartheid’ over Palestinians. But the lack of criminal accountability for this crime against humanity has been the unfinished business of South Africa’s transition from apartheid to democracy. The ruling in the COSAS Four case truly is a milestone, not only for the project of international criminal justice in the broader sense, but certainly for the victims of apartheid in South Africa.