Case Summary: The State v Mfalapitsa Thlomedsi Case Summary: Ephraim and Rorich Christiaan Siebert [2025] ZAGPJHC 147 (14 April 2025)

1. Case Title: The State and the Legal Resources Centre (Amicus Curiae) v Mfalapitsa Thlomedsi Ephraim and Rorich Christiaan Siebert

2. Citation: [2025] ZAGPJHC 147 (14 April 2025)¹

3. Court: High Court of South Africa, Gauteng Local Division, Johannesburg

4. Bench:Dosio J

5. Date of Judgment:14 April 2025²

6. Relevant Statutes and Key Provisions

• Criminal Procedure Act 51 of 1977, ss 85(1), 18(1), 18(1)(g), 18(2)³
• Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act), s 39 (Schedule 2), s 4⁴
• Constitution of the Republic of South Africa, 1996, ss 231, 232, 35(3)(l), 39(1)(b)–(c), 7(2)⁵
• Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020, s 3⁶

Brief Facts

Three men—Eustice Madikela, Peter Matabane, and Fanyana Nhlapho—were abducted and murdered by apartheid security forces on February 15, 1982. The National Prosecuting Authority charged Accused 1 (Mfalapitsa Thlomedsi Ephraim) and Accused 2 (Rorich Christiaan Siebert) on five counts in 2021: (1) kidnapping; (2) murder as a crime against humanity under s. 232 of the Constitution, relating to Madikela (alternatively, ordinary murder under ss. 91, 92, 258 of the Criminal Procedure Act); (3) the same for Matabane; (4) the same for Nhlapho; and (5) apartheid as a crime against humanity under s. 232, encompassing all three killings. The accused filed an objection under s. 85(1) of the Criminal Procedure Act, claiming that the NPA lacked title because of previous political meddling in Truth and Reconciliation Commission (TRC) matters and that counts two through five had expired by prescription.

Issues Involved

1. Whether the twenty-year statute of limitations in s. 18(1) of the Criminal Procedure Act caused the right to prosecute Counts 2–5 to expire. 
2. Whether crimes against humanity prosecutions under customary international law, which existed before the ICC Act, were brought back to life by modifications adding s. 18(1)(g) and s. 18(2). 
3. Whether the Constitution’s Section 232 provide a stand-alone, unchangeable foundation for bringing charges of crimes against humanity under customary international law.
4. Whether the NPA’s supposed political meddling and delays in cases referred to the TRC denied it the right to prosecute or violated the accused’s right to a fair trial.

Arguments

Accused’s Contentions

• Counts 2–5 are not barred from prosecution after 20 years, as stipulated by Section 18(1); therefore, they were mandated on February 14, 2002. ³ 
• The 2002 ICC Act’s Section 18(1)(g) solely reinstates the Act’s four offenses (genocide, war crimes, and crimes against humanity) that were committed after it went into effect; it does not apply retroactively to crimes under customary international law or to conduct that took place before to August 16, 2002. ⁴ 
• The legislation did not intend to give a revival for crimes against humanity, and Section 18(2) solely brings back bribery, corruption, and sexual offenses. ³ 
• No prosecutorial rights can be expanded retroactively due to the presumption against retrospectivity and the legality principle (nullum crimen sine lege). ⁷
  As a result, it is no longer possible to pursue crimes under customary international law. ⁷ 
• The NPA should lose its prosecutorial title because of its prior “gross misconduct” and excessive delay in TRC referrals, which have harmed procedural fairness. ⁸

State and Amicus Curiae’s Contentions

• • As a crime against humanity, murder is illegal under customary international law, and all nations are required to look into and prosecute core international crimes, which are imprescriptible peremptory standards (jus cogens). ¹¹
    
  • Customary international law is immediately incorporated into South African law under Section 232, unless it conflicts with the Constitution or a parliamentary act. ⁵ 
  • Apartheid-era crimes can be tried without statute of limitations because to the ICC Act, section 232, which controls customary international law, and section 231, which governs treaties. ⁵ 
  • Non-prescription is supported by the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity as well as ICRC customary law regulations. ¹²
    The European Court of Human Rights, Uganda, and the Gambia are examples of foreign and regional jurisprudence that acknowledges prosecutorial authority over offenses under customary international law that do not have statutes of limitations. ⁷ Although regrettable, political meddling and delays do not deprive the NPA of jurisdiction unless they specifically jeopardize the accused’s right to a fair trial. ¹

Judgment

Dosio J formulated the central query as the connection between the Criminal Procedure Act’s statutory prescription and the constitutional integration of customary international law: 

1. Criminal Procedure Act and Prescription Drug Use Section 18(1) CPA’s twenty-year prescription only applies to statutory offenses as established in that Act; it does not apply to offenses under customary international law that the Constitution incorporates under Section 232. 
2. Sections 18(1)(g) and 18(2)’s scope Section 18(1)(g) does not replace or restrict the distinct authority under Section 232 to pursue offenses under customary international law, even if it brought back the ICC Act. ⁴
   
3. Power of Section 232 on its own Section 232 offers a separate, self-contained foundation for prosecuting crimes under customary international law, such as apartheid and murder as a crime against humanity, which are imprescriptible due to jus cogens. ⁵ 
4. The Legality Principle Because the alleged behavior was illegal under customary international law at the time it was committed s 232 enforces pre-existing international crimes rather than creating new ones the legality criteria is met. ¹³ 
5. The right to prosecute and the right to a fair trial There was no proof that the accused’s right to a fair trial had been specifically harmed by TRC delays or political meddling. The NPA’s prosecutorial authority is still in place. ¹⁴

Ratio Decidendi

By incorporating customary international law into South African law through Section 232, the Constitution establishes a constitutional foundation for the prosecution of crimes against humanity that are imprescriptible and unconstrained by statutes, including those committed before the adoption of domestic laws like the ICC Act.

Obiter Dicta

The judge noted that several courts (such as Uganda v Kwoyelo¹⁵ and State v Touray¹⁶) and scholarly analysts have confirmed that fundamental international crimes are not prescribed by customary international law, thereby reaffirming the constitutional and global duty to prosecute such offenses without any delay.

Final Decision

The request to strike Counts 2–5 on prescription grounds under CPA s 85(1) is denied. Additionally, the challenge against the NPA’s prosecutorial authority is rejected. The indictment on all counts may be carried out by the State.

References

1 [2025] ZAGPJHC 147 (14 April 2025).

2 Ibid.

3 Criminal Procedure Act 51 of 1977, ss 18(1)–(2).

4 Rome Statute of the International Criminal Court Act 27 of 2002, s 39 (Schedule 2); s 4.

5 Constitution of the Republic of South Africa, 1996, ss 231, 232, 35(3)(l), 39(1)(b)–(c), 7(2).

6 Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020, s 3.

7 S v Mhlungu and Others [1995] ZACC 2, 1995 (3) SA 867 (CC); R v Sachs [1953] 1 SA 392 (A); S v Kimberley and Others [2005] 2 SACR 663 (SCA); National Director of Public Prosecutions v Carolus [1999] 2 SACR 607 (SCA).

8 Rodrigues v National Director of Public Prosecutions [2019] 3 All SA 962 (GJ); Rodrigues v NDPP [2021] 3 All SA 775 (SCA).

9 S v Petane [1988] 3 SA 51 (C).

10 Nduli and Another v Minister of Justice [1978] 1 SA 893 (A).

11 Law Society of South Africa and Others v President of the Republic of South Africa [2019] ZACC 21, 2019 (3) SA 30 (CC).

12 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968); ICRC Rule 160 on Customary International Humanitarian Law.

13 S v Basson (No 1) [2005] ZACC 2, 2005 (1) SA 171 (CC); S v Basson (No 2) [2007] ZACC 12, 2007 (3) SA 582 (CC).

14 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre [2015] ZACC 20, 2015 (1) SA 315 (CC).

15 Uganda v Thomas Kwoyelo Alias Latoni HCT-OO-ICD-CR-SC² OF 2010 (High Court of Uganda).

16 State v Yankuba Touray, SC CR/001/2020 (Gambia Supreme Court).