On 28 May 2026, the Helen Suzman Foundation (HSF) was admitted as amicus curiae in the Supreme Court of Appeal (SCA) matter of Rorich v The State and Mfalapitsa (1173/2025).
The appeal arises from the judgment of the North Gauteng High Court in S v Ephraim and Others (SS70/2021) [2025] ZAGPJHC 410, concerning the deaths of the COSAS 4 in 1982. Mr Mfalapitsa and Mr Rorich were indicted under section 232 of the Constitution on three counts of the crime against humanity of murder and one count of the crime against humanity of apartheid.
Mr Rorich contends that the prosecution has prescribed in terms of section 18 of the Criminal Procedure Act 51 of 1977 because more than twenty years have elapsed since the alleged offences were committed. In April 2025, the High Court dismissed this objection and held that the State may proceed with the charges on the basis that crimes against humanity may be prosecuted under customary international law incorporated into South African law through section 232 of the Constitution.
HSF is pleased to be admitted as amicus curiae and intends to advance the following submissions before the Court:
- The prohibition of crimes against humanity, including apartheid, constitutes a peremptory norm (jus cogens) of international law that gives rise to an obligation on states to investigate and prosecute such crimes domestically;
- South African courts are required to interpret legislation consistently with international law. Section 18(1)(g) of the Criminal Procedure Act should therefore not be interpreted in a manner that prevents the prosecution of apartheid-era crimes against humanity committed before the enactment of the Rome Statute of the International Criminal Court Act 27 of 2002;
- The State bears a constitutional obligation, flowing from section 7(2) of the Constitution, to investigate and prosecute crimes against humanity; and
- South Africa must honour its international law obligations and should not become a safe haven for alleged perpetrators of crimes against humanity merely because those crimes were committed decades ago.
The High Court's judgment marked a significant development in South African jurisprudence by holding that customary international law may provide a basis for the prosecution of apartheid-era crimes against humanity. The outcome of the appeal will have important implications for accountability, the rule of law, and South Africa's ability to investigate and prosecute crimes against humanity in domestic courts.
HSF is represented by Deneys. HSF hopes the outcome will contribute to the ongoing pursuit of accountability for apartheid-era crimes. Read our papers here.
