The National Prosecuting Authority (NPA) breached the Constitution by allowing political interference to get in the way of the prosecution of apartheid-era cases, the South Gauteng High Court ruled on Monday.
The court rejected former Security Branch officer Joao Rodrigues’ stay of prosecution application for the 1971 murder of activist Ahmed Timol and criticised the NPA for failing to charge alleged perpetrators like Rodrigues who did not receive amnesty from the Truth and Reconciliation Commission (TRC).
The judgment, written by Judge Jody Kollapen and supported by a full bench of the court, said the state had been expected to hold perpetrators accountable if they did not receive amnesty from the TRC.
“There was however no bold prosecutions policy rather what can only be described as a timid retreat,” reads Monday’s judgment.
The NPA argued that political interference from former president Thabo Mbeki’s administration caused the delays in prosecuting apartheid cases and the court agreed.
“There was thus what can only be described as high-level executive interference on investigating and prosecuting TRC crimes and other crimes of the past in the period from 2003 until about 2017,” Kollapen’s judgment continues.
“There can be little argument that the political interference resulted in TRC cases (and one must assume the Timol case) not receiving the necessary attention by virtue of investigating that could have led to a decision to prosecute.”
The court said the NPA had failed to challenge the political interference by informing Parliament or society of the attempts to interfere with its mandate to prosecute without fear or favour.
“It cannot be acceptable for it to simply have allowed, as it did, the manipulation of the criminal justice system in the serious manner in which it occurred,” reads the judgment.
“Rather than simply succumb to it, it was open and incumbent on the NPA to have brought this interference into the open. Victims of those crimes where investigation and prosecution were being suppressed certainly had the right to know what was happening and why such cases were not being prosecuted,” it continues.
“None of this occurred and the NPA must accordingly accept the moral and legal consequences of this most serious admission and dereliction of duty on its part.”
The ruling said President Cyril Ramaphosa’s executive and National Director of Public Prosecutions (NDPP) Shamila Batohi must provide assurances “to prevent these unacceptable breaches of the Constitution” ever happening again.
It asks Batohi to consider whether those responsible, both inside and outside the NPA, for side-lining investigations should be charged with violating the NPA Act.
Anyone found guilty of interfering or obstructing the NPA’s work can be subject to a fine or receive a prison sentence of up to 10 years.
While the court agreed political interference had caused a delay in prosecuting Rodrigues’ case, it said it had not prejudiced his right to a fair trial.
The court also slammed the NPA for only introducing the issue of political interference once it was raised in court papers by Timol’s nephew Imtiaz Cajee. The NPA filed its answering affidavit in December 2018. It submitted advocateRaymond Macadam’s affidavit detailing examples of political interference after Cajee’s papers were submitted in January 2018.
But Macadam had signed his affidavit in November 2018 and it was not included in the NPA’s first submission to the court.
“This is not how an organ of State, that is meant to act without fear, favour or prejudice and in the public interest, should conduct litigation,” reads the judgment.
The Southern Africa Litigation Centre (SALC) was admitted as amicus curiae to the case and argued for Rodrigues to also be charged with crimes against humanity. The court said it could not amend the charge sheet but the NPA could if it agreed.
“It has been over 20 years since the Truth and Reconciliation Commission issued its final report and recommended more than 300 cases for further investigation or prosecution,” said SALC executive director Kaajal Ramjathan-Keogh.
“So far, none of those cases have been prosecuted. In fighting impunity and administering justice, crimes that were committed during the apartheid era must be prosecuted; even if those prosecutions take place decades after the commission of those crimes.”
The ruling comes as a number of families are demanding accountability for the death of their relatives in detention during apartheid, spurred on by developments in Timol’s case.
The re-opened inquest into Timol’s death found he had been thrown to his death by police from the tenth floor of John Vorster Square, since renamed Johannesburg Central Police Station.
Steve Biko Foundation executive trustee Nkosinathi Biko said: “Ahmed Timol represents a category of many other people who went through a similar horrendous experience and died in custody under state security laws. This ruling is important in that it begins a process to restore his dignity, and we are grateful to the Timol family for moving the nation to this stage.”
Monday’s judgment finished: “Importantly, this case reaffirms that justice and the truth were never meant to be compromised during all that our young society sought to do in dealing with its troubled, turbulent and shameful past.”
NPA Gauteng spokesperson Phindi Mjonondwane said on Monday that the prosecuting authority is working on apartheid-era cases. The justice department announced in April 2018 that the inquest into activist Neil Aggett’s death is set to be re-opened. DM