GQEBERHA – The 49th anniversary of Steve Biko’s death will be marked tomorrow, 12 September, with his family having secured a temporary halt to proceedings in the reopened inquest into his death.

The High Court in Gqeberha has ordered that further proceedings in the inquest be stayed pending the final determination of the family’s review application. The court further ordered that the review be determined on an expedited basis, with the parties to approach the Registrar for the earliest reasonably available date for the hearing.

The order, dated 8 September, also provides for the stay to be varied or discharged on application by any interested party on good cause shown, including if the applicants become substantively ready to participate effectively in the inquest before the review is determined.

In heads of argument filed on behalf of Biko’s family, Nontsikelelelo Margaret Biko and Nkosinathi Biko, the applicants argued that continuing to hear substantive evidence could prejudice their ability to participate effectively in the inquest.

Challenge to inquest ruling

The application challenges a ruling delivered on 26 August by Justice Isaac Madondo, who is presiding over the reopened inquest, concerning the family’s request for additional time to prepare.

According to the heads of argument, the circumstances have changed since the August ruling, with the investigating officer confirming that the record remains incomplete, further investigative work is outstanding and untranslated Afrikaans material has hampered the investigation.

The investigating officer, Sergeant Dingiswayo, reportedly estimated on 31 August that she could require about a month to obtain outstanding information.

Afrikaans affidavit complicates proceedings

The family’s legal team also points to proceedings on 4 September, when the National Prosecuting Authority was unable to proceed with questioning fourth respondent Daniel Petrus Siebert after receiving his affidavit in Afrikaans only the previous afternoon. The NPA sought time to understand the affidavit and compare it with the documentary and oral evidence before questioning Siebert.

The applicants argue that they faced the same difficulty and that Madondo accepted that the statement needed to be translated into a language they understood so they could prepare and put questions effectively. The heads further state that Madondo subsequently accepted that outstanding information, witnesses, records and translations meant the inquest could not be completed during the current session.

‘Gaping holes’ in the docket

Biko’s son, Nkosinathi, said he welcomed the application being granted. “As the senior counsel indicated, we are concerned about the delays related to this matter, but we are also concerned about having a performative process. We are used to that.”

Nkosinathi added that it was necessary to ask the inquest court to consider the weaknesses in the process.

“If the investigating officer says the docket has gaping holes, it is concerning that the matter is moving forward, because it deprives the families and interested parties of the opportunity to interrogate the version of events presented in court,” he said. “Because we were not heard, we resorted to a different court to look into the work of the other court and our request and weigh in on whether it was a reasonable request.”

He added, “This court supports the fact that there is a compelling reason for postponing the matter to cure the ills of the inquest. This is not a matter of win or lose.”

Nkosinathi also said he had directed the team at the Steve Biko Centre to help develop a data centre where all the material they have can be revisited by the investigating officer in an effort to fill the gaps.

“We know from the people who have appeared already, Siebert and Beneke, they are here to tell a third version of what happened,” Nkosinathi said. “We know what they said in the TRC, which is on record, and we also know what they said in the first inquest. Our immediate action now is to assist the investigation, so that this inquest can tell the nation what happened to Steve Biko.”

‘A daunting process’

Nkosinathi’s brother, Samora, said the inquest process had been daunting for the family. “The success that we have achieved highlights what we have always been requesting,” he said, adding that a process of this nature ought to be given the necessary time and attention rather than being rushed.

With the 49th anniversary of Biko’s death falling tomorrow, Samora described the postponement as somewhat of a victory for the family. “However long it takes to get the correct outcome, so be it,” he said.

Annual commemorations continue

On the anniversary, Samora said the family would continue its annual commemorations of Biko.

“Every year we join the celebration [of Steve Biko]. In the beginning, we drove celebrations through the [Steve Biko] Foundation and hoped that we could create sufficient momentum with the communities,” he said.

“One of the things that have happened is, the Anglican Church has recognised Biko as a martyr of hope. Most churches around the country have a service and we will be celebrating with his community, the church in which he was baptised. We will be going to the grave for the wreathing ceremony and participating in the memorial lecture here in Gqeberha at Nelson Mandela University (NMU).”

He added, “Legacies live when they live in people’s hearts,” making the national commemoration of Steve Biko’s death all the more significant for the family.

Right to participate

The applicants argue that their statutory right to participate in the inquest cannot be meaningfully exercised if their legal representatives have not had sufficient time to understand the documentary record, obtain translations, take instructions, identify inconsistencies and determine what questions should be put to witnesses.

They also argue that a later recall of witnesses may not remedy the prejudice because recall is discretionary and evidence obtained through further investigation could reveal material that should have been put to witnesses when they initially testified.

The family maintains that the prejudice caused by continuing the proceedings could be difficult to reverse, while the prejudice caused by a temporary stay would be limited to a delay.

The applicants are therefore not seeking to prevent further investigation or the eventual continuation of the inquest, but want substantive evidence-taking to remain suspended while their review application is determined.

The order states that the parties must approach the Registrar for the earliest reasonably available date for the hearing of Part B, with the review to be determined on an expedited basis.

The applicants are represented by senior counsel Dali Mpofu and Natalie Chesi-Buthelezi.

The reopened inquest concerns the circumstances surrounding Biko’s death in police custody in 1977.