IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: i\,\i \ /18 ln the ex parte application of: THEMBISILE PHUMELELE NKADIMENG Applicant ---------------- CONSOLIDATED INDEX: NO. DESCRIPTION OF DOCUMENT I PAGE NO. I - -----1 1 . Notice of Motion 1 - 3 I I 2. Founding Affidavit of Thembisile Phumelele 4-30 Nkadimeng 7 I 3. Annexure "TN 1" - Confirmatory Affidavit of 31 -33 Sizakele Ernestina Simelane 4. Annexure "TN 2" - Decision of the Amnesty 34- 43 \ Committee 5. Annexure "TN 3" - Indictment 44- 57 6. Annexure "TN 4" - Supporting Affidavit of Frank 58 - 102 Dutton 7. Annexure "TN 5" - Newspaper Report 103 - 104 8. Annexure "TN 6" - Newspaper Report 105 9. Annexure "TN 7'' - Letter from Neville Thoms 106 - 110 10. Annexure "TN 8" - Letter from Neville Thoms 111-115 11. Annexure "TN 9" - Warning in terms of Section 35 116-119 of the Constitution of the Republic of South Africa 12. Annexure "TN 1O " - Letter from the Chairperson of 120-121 the Working Group on Enforced or Involuntary Disappearances _ _J 2 13. Annexure "TN 11" - City Press Opinion 122 - 132 14. Annexure "TN 12" - Media Briefing 133 - 143 15. Annexure "TN 13" - Newspaper report 144-155 ON THIS'l.R~DAY OF ~0\1'L"'~ 2018. 1 llia\l~~ WEBBER WENTZEL Attorneys for the Applicant 90 Rivonia Road, Sandton PO Box 61771, Marshalltown Docex 26, Johannesburg Tel: 011 530 5000 Fax: 0115305111 Email: moray.hath a [email protected] Ref: M Hathorn C/0 Stephen Leinberger Per: SAVAGE JOOSTE & ADAMS INC 141 Boshoff Street Niew Muckleneuk, Pretoria PO Box 7 45 Pretoria 0001 Docex 58 Pretoria Tel: (012) 452 8200 Fax: (012) 452 8230 Email: [email protected] TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT • PRETORIA .r IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2,hSg l /18 In the ex parte application of: THEMBISILE PHUMELELE NKAOIMENG NOTICE OF MO • \ on ~ J U1\e. Wl 9 at 1 0h00, or so soon thereafter as counsel for the applicant may be heard for an order in the following terms: 1 That a rule nisi be issued calling upon all interested parties to show cause (if any) before this Court on a date to be determined by the Court at the hearing of the matter, why an order in the following terms should not be made final: 1.1 It is ordered that Nokuthula Aurelia Simelane (identity number: 5- 5934984-3) born on 5 September 1959, be presumed dead . • 2 That service of this order be effected in the following manner: 2.1 By publishing a copy of this order in one edition of the Government Gazette, Die Beeld and the Citizen newspapers; 2.2 By the Deputy-Sheriff by serving a copy of this order on: 2.2.1 Willem Helm Coetzee of 15 Rooitou Street, Weltevredenpark, Roodepoort; 2 2.2.2 Anton Pretorius of 20 Dunedin, 152 Malcom Road, President Ridge, Randburg; 2.2.3 Frederick Barnard Mong of 5 Amm Street, Sonlandpark, Veeriging; and 2.2.4 Msebenzi Timothy Radebe of 8 Roma Street, Honeyhills, 1724 alternatively 36 Stumke Street, Witpoortjie, Roodepoort, 1724, Gauteng . • 3 Should any interested person wish to oppose the relief set forth, they shall deliver their answering affidavits, if any, or a notice envisaged in terms of Uniform Rule 6(5){d)(iii) fifteen (15) days prior to the return date as envisaged in paragraph 1 above. 4 Costs, in the event of opposition, including those of two counsel. 5 Further and/or alternative relief . •.: TAKE NOTICE THAT the Applicant has appointed WEBBER WENTZEL as its attorneys of record with the details as set out below at which the Applicant will accept service of any legal process notices and documents. TAKE FURTHER NOTICE THAT the attached affidavits of Thembisile Phumelele Nkadimeng, Sizakele Ernestina Simelane and Frank Kennan Dutton wlll be used in support of this application, and will be supplemented to the extent necessary. 3 SIGNED AND DATED at1ti1,oi,.,\,.) ON THIS THE ':JS II_ DAY OF \J,:,i,.,b,c 2018 \Ul~~ WEBBER WENTZEL Attorneys for the Applicant 90 Rivonia Road, Sandton PO Box 61771, Marshalltown Docex 26, Johannesburg Tel: 011 530 5000 Fax: 011 530 5111 Email: [email protected] Ref: M Hathorn C/0 Stephen Leinberger •• Per: SAVAGE JOOSTE & ADAMS INC 141 Boshoff Street Niew Muckleneuk, Pretoria PO Box 745 Pretoria 0001 Docex 58 Pretoria Tel: (012) 452 8200 Fax: (012) 452 8230 Email: [email protected] TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT -..' PRETORIA 1 4 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: i~ "\8\ /18 In the ex parte application of: THEMBISILE PHUMELELE NKADIMENG Applicant FOUNDING AFFIDAVIT Contents OVERVIEW OF THIS APPLICATION ..................................................................................... 3 THE CIRCUMSTANCES UNDER WHICH NOKUTHULA WAS lAST SEEN ................................. 5 The Abduction ....................................................................................................... ,................. 5 Captivity and torture at Northam ............................................................................................. 7 The disappearance of Nokuthula ............................................................................................ 11 MODUS OPERANDI OF THE SECURITY BRANCH ................................................................13 EFFORTS TO INVESTIGATE AND TRACE NOKUTHULA ........................................................ 17 MEDIA ATTENTION .........................................................................................................24 CONCLUSION .................................................................................................................. 25 I, the undersigned, THEMBISILE PHUMELELE NKAOIMENG state under oath as follows: 1 I am an adult female and I am the Executive Mayor of City of Polokwane. I reside at 82 General Viljoen Street, Welgelegen, Polokwane and I am the Applicant in this matter. b-A \P s 2 2 I act in the interests of myself and my family and I depose to this affidavit on behalf of my wider family. I attach the confirmatory affidavit of my mother, Sizakele Ernestina Simelane marked TN1 which supports this application. 3 The facts herein, unless stated otherwise or as appears from the context, are within my own personal knowledge and are to the best of my knowledge and belief, both true and correct. 4 Where I make averments not directly within my knowledge, I do so on the basis of information made available to me. Where in writing, I attach such copies. I verily believe such information to be true and correct. Where I make legal submissions, I do so on the advice of my legal representatives, which advice I believe to be true and correct. 5 Where I make use of headings in this affidavit, I do so for convenience only and do not thereby intend to limit anything stated under a particular heading only to that topic. I pray that this affidavit be read as a whole. 6 In preparing this affidavit, I have had reference to various materials, including: 6.1 Part A of the investigation docket into the murder of Nokuthula {Priority Investigation: JV Plein: 1469/02/1996); 6.2 The record of the Truth and Reconciliation Commission {"TRC") amnesty hearing and the decision of the Amnesty Committee in respect of Willem Coetzee ("Coetzee"), Anton Pretorius ("Pretorius") and Frederick Mong ("Mong") (Amnesty Decision AC/2001/185); lJ _(-) \f 3 6.3 The Final Report of the TRC insofar as it pertains to Nokuthula. 7 The aforesaid decision of the Amnesty Committee is annexed hereto marked "TN2". The abovementioned Part A of the Investigation Docket and the TRC Report are voluminous documents and have not been attached to this affidavit but can be supplied on request. 8 Coetzee, Pretorius and Mong presently face charges for the murder of Nokuthula before the High Court (Gauteng Division) under Case Number: CC 16/2016. Accused one, Msebenzi Timothy Radebe ("Radebe"), is also charged with kidnapping. A copy of the indictment dated 14 March 2016 against the accused with reference 10/2/11 /1-P8/2016 is annexed hereto marked "TN3". 9 Coetzee, Pretorius and Mong received amnesty for Nokuthula's kidnapping but were denied amnesty for her torture. Radebe did not apply for amnesty and neither did Willem Schoon, the Commander of Security Branch C1 Section, under whose overall command the accused fell. None applied for amnesty for her murder. (Coetzee, Pretorius, Mong and Radebe are collectively referred to as "the accused"). OVERVIEW OF THIS APPLICATION 10 This application seeks a presumption of death order for my sister, Nokuthula Aurelia Simelane ("Nokuthula"). I submit that when the circumstances relating to Nokuthula's disappearance are considered, the overwhelming probabilities are that Nokuthula is deceased. 7 4 11 In 1983 Nokuthula was a 23 year old university graduate and was a courier for Umkhonto we Sizwe ("MK"), the armed wing of the African National Congress ("ANC"), moving between Swaziland and South Africa. She was betrayed by one of her own and was abducted and brutally tortured by the Security Branch ("SB") of the former South African Police ("SAP") in September of 1983. 12 Nokuthula was never seen again. We know from the TRC hearings that my sister suffered terribly at the hands of the SB. We know that she refused to -:) collaborate with the forces of Apartheid. For this she paid the ultimate price. 13 Nokuthula's story is rooted in South Africa's bitter and divided past. She devoted her life to resisting the pernicious system of Apartheid. My family and I have been searching for answers for more than 35 years. We have not rested and continue to search for her remains and to bring justice to her killers. 14 We know from the evidence of certain SB members that she suffered the most brutal torture before she was murdered. However, we do not know how she died, and where her body is today. We have spent three and a half decades looking for Nokuthula. We have even appointed private detectives to assist us, but our efforts have to this day proven unsuccessful. 15 More than 35 years later, we have not heard from Nokuthula. Having regard to the condition of Nokuthula's captivity, her treatment at the hands of the SB, and her utterly grim state when she was last seen alive, we believe that it is beyond debate that Nokuthula is dead.