Cosas 4: Naming the elephant in the room – the crime of apartheid

Years from now, Monday, 14 April 2025, will be recited as a major step in the prosecution  of apartheid-era crimes. For the first time, a court in South Africa confirmed the charges  of crimes against humanity of murder and crimes against humanity of apartheid. 

It is a characterisation that many South Africans understood as a given but required a legal assessment that involved dedication by civil society, the victims’ families, the prosecuting authority and the judiciary. 

This ruling in the Cosas 4 matter, a case about the death of young anti-apartheid activists in 1982 is historic. There were no fireworks, no roaring crowds, just a quiet courtroom listening to the steady and unstoppable judge reading out his decision confirming the charges of crimes against humanity. 

A legal victory decades in the making 

The confirmation of the charge of the crime against humanity of apartheid did not come from The Hague, not from the International Criminal Court nor the International Court of Justice. It came from Courtroom 4D in the high court in Johannesburg. It came from families that refused to give up, lawyers and human rights defenders who kept digging, prosecutors who stepped up, and a judge with the courage to apply the law. With this decision, Judge Dario Dosio dismissed the objection to the international law charges based on customary international law, meaning crimes against humanity of murder and crimes against humanity of apartheid. 

Until now, there has been a terrible disconnect between the characterisation by the Truth and Reconciliation Commission (TRC) of apartheid as a crime against humanity and the legal assessment in the courts. The legal characterisation of apartheid-era conduct as crime against humanity can be backtracked to submissions initially made by the Southern Africa Litigation Centre (SALC) in the Rodrigues matter concerning the death of anti-apartheid activist Ahmed Timol a few years back. 

The SALC conducted a legal assessment on what basis the alleged murder, in that matter, qualified as a crime against humanity, namely the crime against humanity of murder, persecution and apartheid. 

Until the judgment by Dosio, no court had formally confirmed charges of crimes against humanity for apartheid-era crimes. While it is one thing to have academics and treaties defining the crime of apartheid as a crime against humanity, it is another for a South African judge to confirm the charge of the crime against humanity of apartheid and say that these crimes on the basis of international law do not prescribe. This case closes the gap that prevented accountability in these cases for too long. 

Delayed justice 

The main argument of the objection in the Cosas 4 matter was that the defendants were only indicted almost 40 years after the alleged crime in 2021 and that the right of the National Prosecuting Authority (NPA) lapsed after 20 years under section 18 of the Criminal Procedure Act. But Dosio clarified in his judgment that such an interpretation would violate domestic law and not adhere to applicable international law. 

The court confirmed that the prosecution of crimes against humanity does not have an expiry date. These are some of the most serious crimes of humanity. The apartheid-era crimes show that the progress of justice might be slow, but that does not mean that they are less urgent.  

No doubt, cases like the Cosas 4 matter could have been picked up years ago, and for too long, apartheid-era cases have been ignored. But, against that backdrop, one must acknowledge the efforts by the prosecutorial team working on these matters now and their commitment to charge crimes that reflect the criminal energy, suffering and context of the alleged conduct. 

A moment of reckoning 

This ruling is not just a technicality. It is a seismic moment for all victims, survivors and families who suffered from the conduct of an oppressive regime. The unwavering dedication and tireless advocacy, especially by the families of the victims, such as the ones in the Cosas 4 matter, shows that pain, trauma and harm cannot be packed away with a TRC report and left behind. Rulings like the one by Dosio are exactly what the TRC had in mind when it submitted more than 300 cases to the NPA for further investigation. 

The tremors caused by the judgment from courtroom 4D will affect many other cases that have been filed, and others that are yet to be filed. Old questions might resurface. If crimes against humanity of apartheid can be charged for alleged conduct in 1982, how far back can individuals be held accountable? If individuals are held accountable for the crime against humanity of apartheid, what about banks, arms dealers and multinational corporations that profited and supported the apartheid regime? Can corporations that financed or supported the oppressive regime of apartheid also held accountable now? These are all potential questions that future cases might address. 

From courtroom 4D to the world 

This decision is not symbolic. It acknowledges the pain and suffering of the victims and their families — that the beatings, murders, stolen childhoods and parenthood are not just a forgotten part of history but an injustice for which accountability can be sought. 

This judgment is not just relevant for South Africa and South Africans. It sends a crucial message to the world — that criminal conduct cannot be considered in isolation, and that it is essential to provide a legal characterisation that meets the criminal nature and context of the conduct. 

We live in a world that finds itself in times of rising xenophobia, discrimination, racism, oppression and hate. We have witnessed the rise of racial injustice and authoritarian practices, from the unlawful arrest and deportation of people of colour to apartheid policies implemented by Israel. To all these trends, the judgment from courtroom 4D sends the message that such systems of oppression are not just unlawful but that perpetrators of such systematic crimes like the crime of apartheid will be held accountable. Maybe not today or tomorrow, but their time in the dock will come. The judgment and following trial will add legal muscle to the global movement against the oppression by one group over another. 

International criminal justice is going through difficult times. Powerful people still avoid accountability as we have seen during the visit of Israel’s prime minister, Benjamin Netanyahu, in Hungary. But cases like these constitute a crack in the wall of impunity. That wall will eventually fall. Until then, the fight against impunity requires courage and dedication from the families of the victims and civil society to push for accountability. The Cosas 4 matter is an example of what can be achieved if the law, including international law, is applied without fear or favour. 

Dr Atilla Kisla is the International Justice Cluster lead at the Southern Africa Litigation Centre.