The family of slain Black Consciousness Movement leader Steve Biko said they would consider bringing an application for retired judge Isaac Madondo to recuse himself.
This followed the remarks Madondo made in his judgment in the Gqeberha high court on Wednesday, dismissing the family’s application for a postponement of the inquest.
The judge had found that the two remaining eye-witnesses might suffer memory loss due to their advanced age if the inquest was delayed further.
Afterwards, Biko’s son, Nkosinathi, said Madondo had invoked a defence for the witnesses.
Nkosinathi said Madondo’s remarks were worrisome because the inquest would rely on the memories of witnesses to be called to testify.
“It seems to me that this is an unfortunate pronouncement, particularly if we are expected to rely on these people, especially when their views and testimony are presented in such a reductionist manner,” he said.
“We are considering all available options, and an application for recusal is among them.
“Our priority is to do what is right in preserving the memory and dignity of Steve Biko.”
He said Madondo had adopted a narrow approach to identifying witnesses, focusing primarily on those who were present in the room when Biko was allegedly assaulted.
“It is important that this court is assisted with witnesses who can speak to a broad set of issues like why Biko was a marked man, and the experiences of others who were in the same cell or put in a cell by the same team.”
He said accompanying the families of other activists during similar inquests had helped him develop a better understanding of the proceedings.
Nkosinathi said this was particularly important in dealing with Biko’s inquest, which concerned the violation of his constitutionally protected rights to life and dignity.
Among the political activists earmarked by the state to testify is 70-year-old Gqeberha resident Monde Mditshwa, who organised locals to attend Biko’s funeral.
Mditshwa was later arrested by apartheid police.
In his judgment, Madondo cited concerns over the “advanced age” of two eye-witnesses, who were present during Biko’s interrogation.
He said it was in the interests of justice to commence with the two witnesses giving oral evidence rather than relying on affidavits that could be opposed.
Madondo said Biko’s family and their legal representatives had also acknowledged that the inquest needed to be held expeditiously.
He said the matter was old and that public interest demanded it be finalised.
The proceedings seek to revisit the circumstances of the anti-apartheid activist’s death in custody in 1977, and to determine if any person’s actions or omissions amounted to a criminal offence.
The matter was initially postponed on Monday after justice and constitutional development minister Mmamoloko Kubayi approved funding for the Biko legal team.
On Tuesday, it hit another snag when their lawyer, Ngqiqo Sakhela, asked for time for the family to adequately prepare for the proceedings.
The National Prosecuting Authority (NPA) announced in September 2025 that the inquest into Biko’s death had been reopened.
Before the inquest was postponed last year, advocate Tembeka Ngcukaitobi SC had been prepared to assist the Biko family pro bono.
However, Ngcukaitobi has since been appointed to the Constitutional Court as an acting judge.
Due to a lack of funding, the legal team that was assembled last year had also since taken on other cases.
Sakhela said the family needed a team to be assembled and an opportunity to go through the voluminous documents.
Some of these documents were in Afrikaans and needed to be translated.
Another issue was that some documents went missing from the 1977 inquest and the Truth and Reconciliation hearings.
Former apartheid spy Craig Williamson would also be required to testify.
Sakhela said Williamson was not initially named as a witness but because he testified during the Cradock Four inquest to having conducted surveillance on Biko, it was crucial for him to be subpoenaed.
Two surviving former police officers implicated in Biko’s death were also scheduled to testify.
During the TRC in 1997, former senior apartheid state police branch officers from Gqeberha — Major Harold Snyman, Captain Daniel Siebert, Captain Jacobus Beneche, Warrant Officer Rubin Marx and Sergeant Gideon Nieuwoudt — applied for amnesty.
According to the NPA, their version was that Biko had attacked one of their colleagues with a chair.
While restraining him, they claimed Biko hit his head against the wall.
They later admitted to fabricating their versions.
All five were refused amnesty.
Biko was arrested with his comrade, Peter Jones, at a roadblock near Makhanda on August 18 1977.
He had reportedly violated his “banning orders”, which restricted his movement to Qonce.
He was then taken to the Walmer police station where he was allegedly stripped naked and tortured.
It was only after 24 days in custody that medical assistance was sought after “foam” was noted around his mouth.
He was loaded, unconscious, still naked and shackled, into the back of a police vehicle on September 11 1977 and transported to a prison hospital in Pretoria.
He died the next day at the age of 30.
The cause of his death was recorded as extensive brain injury, acute kidney failure and uremia.
A formal inquest was held in November 1977.
The version of his captors and interrogators at that inquest was that he had sustained his injuries when he banged his head against the wall.
The presiding officer accepted their version at the time.
The then-Attorney General of the Eastern Cape also declined to prosecute anyone for Biko’s death on February 2 1978.
The NPA stated that the main goal of reopening the inquest was to present evidence that would enable the court to make a finding in terms of the Inquests Act as to whether the death was brought about by an offence on the part of any person.
This, the NPA said, was to continue their efforts to address the atrocities of the past and assist in providing closure.
Delivering his judgment on Wednesday, Madondo said state advocate Devendran Govender had indicated in May that the state would call 19 witnesses, excluding those to be called by the Biko family.
Madondo said the Inquest Act gave the prerogative of the judicial officer chairing the proceedings on witnesses to testify and that parties would have to submit a request.
He said Govender had also indicated the inquest may be postponed to 2027 if Sakhela failed to secure the services of a new lead counsel.
Madondo said the start of the inquest had been postponed numerous times despite being set down for August 24 to September 11.
He listed a number of factors that led to his ruling against Sakhela, including that Biko’s family would not be prejudiced by his decision.
He said the “risk is too great” to postpone the proceedings considering that other witnesses had died gradually and the remaining two were of an advanced age.
The inquest was postponed to Thursday to allow the state to consult witnesses.
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