The South Gauteng High Court heard arguments on Thursday and Friday from various parties with a vested interest in former apartheid cop Joao Rodrigues’s request for a permanent stay of prosecution for the 1971 murder of anti-apartheid activist Ahmed Timol.
Rodrigues was charged with murder in July 2018 after an inquest found Timol was thrown to his death from the 10th floor of Johannesburg Central Police Station.
Rodrigues’s defence, led by Advocate Jaap Cilliers, argued that because of the period of time that has lapsed it would be unconstitutional for the state to proceed with prosecuting him.
Cilliers put it to the full bench, including Judges Seun Dimpheletse Moshidi, Jody Kollapen and Ingrid Opperman, and a packed court room that “this case is unique because of the enormous timeline” and that Rodrigues “did not try to evade justice”, instead he was just never charged by the National Prosecuting Authority (NPA).
Cilliers submitted to the court that there had been “a deliberate decision by the prosecuting authority, supported by the president and minister of justice not to institute legal proceedings against the applicant”.
He further said that officials who had performed autopsies on Timol had since died and thus could not be called into court to give key evidence that could be beneficial to Rodrigues.
Cilliers submitted that prosecuting Rodrigues would not be fair due to the prolonged “non-action of the authorities” in pursuing this matter.
The case against Rodrigues stems from the reopening of the inquest into Timol’s death. After extensive pressure from Timol’s family, led by his nephew Imtiaz Cajee, the new inquest in 2017 ruled that Timol was murdered by members of the special branch, most likely Captains Johannes van Niekerk and Captain Johannes Gloy, who have both since died.
Advocate Kennedy Tsatsawane, representing the NPA, said his client admits that it had previously been hindered in its attempts to prosecute those guilty of politically-motivated crimes during apartheid.
This interference had happened under the leadership of former president Thabo Mbeki and it saw the president subsequently suspend then National Director of Public Prosecutions Vusi Pikoli.
Tsatsawane said the NPA can now act on its mandate of justice in the interest of the state and society at large and that “the Constitution demands that people who suffered during apartheid be honoured”.
He said the death of the two officers directly involved could not be sufficient grounds for a stay of prosecution. Rodrigues has claimed he was alone with Timol in the room when he allegedly jumped out of the window, but the inquest, led by Judge Billy Mothle, found he was lying about being present at the time of Timol’s death.
Advocate Howard Varney, representing Timol’s family, submitted to the court that under the TRC: “Rodrigues had an option to come forward with the information, through which he would’ve guaranteed Gloy and van Niekerk were brought to justice, as they were still alive at the time.” He chose not to.
Varney said that the evidence at hand “does not support the amnesty that the applicant seems to think he is entitled to due to the delay in prosecuting him”.
Advocate Pingla Hemraj for the minister of justice said it was impossible for the current minister to contribute any useful information to the court as he was not in the position at the time when it is alleged the ministry of justice hindered the functionality of the NPA.
She said that the minister has assured that “the ends of justice are going to preserved under his watch” and there’ll be no repetition of past transgressions from the ministry.
Advocate Alan Dodson, speaking on behalf of the former commissioners of the TRC, taking part in proceedings as an amicus curiae, told the court that following the conclusion of the TRC “the Constitution was clear about the fact that if the amnesty was not used, the people had to be prosecuted”.
Dodson stated that the commission recommended a “bold prosecution policy” on those who did not apply for amnesty.
“A stay for him [Rodrigues] will not only be for him, but it’ll be for those who find themselves in a similar position to him… and the TRC’s work will have been for nothing,” he said.
Another amicus curiae, the Southern African Litigation Centre submitted to the court that, “Mr Timol was not killed in a private crime, but he was killed in the public interest of furthering the ideals of the apartheid government”, and that there are clear international, as well as South African laws, according to the constitution, that govern how “crimes against humanity”, should be handled.
Mthunzi Luthuli, grandson of former ANC president and anti-apartheid activist, Chief Albert Luthuli was in attendance. Chief Luthuli, like Timol, died under mysterious circumstances during the apartheid era.
Luthuli told Daily Maverick that this case “inspires hope that victims of apartheid crimes and their families will see justice being done”.
“In our case specifically, our grandfather supposedly died mysteriously. There’s no mystery. This was an apartheid crime which was covered up just like the Timol case” Luthuli said.
Judgment has been reserved with an indication that it could be delivered within a month. DM