Polokwane Mayor Thembi Nkadimeng has joined her sister's alleged killers, apartheid police officers, in a court application in a bid to force the South African Police Service (SAPS) to pay their legal fees so that the family can finally get closure.
Nkadimeng was just 9 years old when her sister, uMkhonto weSizwe operative Nokuthula Simelane, was allegedly abducted, detained and tortured by former apartheid-era Soweto security branch members in 1983.
Three of the security police officers, Willem Coetzee, Anton Pretorius and Frederick Mong, were granted amnesty by the Truth and Reconciliation Commission (TRC) for Simelane's abduction and detention. A fourth officer, Tim Radebe, never applied for amnesty.
In 2016 after 32 years of fighting, the four were charged with Simelane's murder, following a decision by the National Prosecuting Authority to pursue the case.
Since 2016, the criminal case has been postponed several times as a result of an ongoing dispute in which the SAPS has declined to pay the legal costs for three of the accused.
The North Gauteng High Court heard on Tuesday that both Simelane's father and brother died fighting for answers and justice and that her mother is currently ill.
Tortured for weeks
Advocate Muzi Sikhakhane, SC, for Nkadimeng, told the court that the family wanted the criminal case to go ahead "so that the case can be resolved speedily, so the family can know what happened to their sister, their daughter".
"Therefore, any further delay would add to that injustice," said Sikhakhane.
He explained that this was why the family had joined the application alongside Simelane's alleged murderers.
He further argued the special branch members were acting within the cause and scope of their work when they abducted Simelane from Carlton Centre in Johannesburg, before taking her to Norwood and then to a farm in Vlakplaas, North West, where she was tortured for weeks.
Sikhakhane said to abduct, detain and torture supposed enemies of the state in order to turn them into informants was the policy of the apartheid government. He said in Simelane's case it was authorised by the police officers' superiors.
The practice was called "kop draai", Sikhakhane added.
'She paid the ultimate price'
He told the court that using this context, the police officers were carrying out orders under the government of the day and should therefore have their legal fees paid by the SAPS.
"The applicants were carrying out the instructions of their superiors and were dictated (sic) by what was required of police at the time.
"There is no doubt that the state is obliged to pay."
Sikhakhane said Simelane, who was beaten beyond recognition according to the findings of the TRC, had devoted her short life to the fight for freedom.
"That was her crime, and for that she paid the ultimate price."
Advocate MD du Preez, for Coetzee, Pretorius and Mong, told the court that the three men were part of the police force during apartheid but became part of the police service under the new democratic South Africa.
Provision 'not intended' for former employees
He said two of the applicants retired in the 1990s and that the third was still employed by the SAPS.
Du Preez also argued that the former apartheid police officers were doing the bidding of the government in power at the time.
Advocate Ngwako Maenetje, SC, for the SAPS, argued that the provision in law regarding legal fees being paid by the state for police officers didn't make allowances for former employees.
"If this provision was intended for former employees it would have been made clear," said Maenetje.
He further argued that those who qualify for legal fees would only qualify if the person acted within the cause and scope of their duties and that there was no state order for Simelane to be murdered, only for her to be detained and turned into an informant.
He said this was corroborated in evidence from Coetzee, Pretorius and Mong.
Inconsistencies
"Take what they say were their instructions against the indictment and see whether they acted in the scope of their duties."
Maenetje said according to the former police officers, they were successful in turning her into an informant. They allegedly then briefed her before dropping her off in Mpumalanga near the border to cross over to Swaziland on her own.
It is alleged that they never saw or heard from her again.
He explained that because it is common cause that their versions were inconsistent, it is difficult for the SAPS to accept the version that what they did was in the scope of their work and that they didn't exceed their powers.
Judgment has been reserved.