An unexpected interruption in the reopened inquest into Neil Aggett’s death in detention this week leaves proceedings in limbo. It comes just as legal groundwork looked set to pay off in actual charges against former security branch members.

News emerged on Monday that presiding judge Motsamai Makume was admitted to hospital over the weekend, bringing proceedings to an abrupt standstill, with no date set for resumption of testimony.

This week would have been the final stretch for the reopened inquest, which had already overrun its initial five-week schedule. More former security branch members were scheduled to take the stand to be grilled over their involvement and knowledge of how the 29-year-old trade unionist and physician was found hanging in his police cell on 5 February 1982. Aggett’s family has always disputed the apartheid-state finding that he committed suicide.

By the end of last week, the Aggett family lawyers and the NPA indicated in court that they would seek to bring charges against Nicolaas Deetlefs, a warrant officer in the security branch in 1982 who testified for much of last week.

Last week Advocate Howard Varney, acting for the Aggett family, said they intended to have Deetlefs charged as an accessory in the murder of Aggett and the NPA’s Advocate Jabulani Mlotshwa told Deetlefs to expect to be charged for torturing Barbara Hogan who was also a detainee in the 1980s. Deetlefs admitted to slapping and humiliating Hogan during interrogations.

But these charges against Deetlefs, after 38 years, have prescribed. It’s left lawyers to pursue charges of perjury and defeating the ends of justice based on Deetlefs’ testimony in the current inquest. Deetlefs’ testimony was discredited and called out as implausible and improbable by Varney, Mlotshwa and Judge Makume. Perjury carries penalties of a fine and/or jail time.

The interruption in the inquest is a devastating blow for Jill Burger. Burger is Aggett’s older sister who has been in court every day with Stephen Aggett, one of her nephews by her older brother Michael, who died 10 years ago.

“I’m gutted by this news and we are extremely sorry to hear that the judge is unwell and wish him a speedy recovery and for the resumption of the inquest when he is well,” she said. Burger, who lives in the United Kingdom, will have to fly home earlier than scheduled and is now likely to miss the finalisation of court proceedings.

It’s another delay – unforeseen this time – but it still has the effect of extending the 38-year delay in getting truth and justice. It also sharpens the focus once again on the reality of how haunted South Africa is by ghosts of apartheid’s unfinished business and the unholy hustles that have shaped the country’s democracy.

It also makes the lingering suspicion that capture of the justice system even in a time of democracy is a possibility. Questions remain about the existence of sticky webs of corruption and cover-ups among politicians, police officers and prosecutors who may be deliberately stalling justice in these inquests. The National Prosecuting Authority, and in particular the Priority Crimes Litigation Unit, come under fire for why it gets away with dragging its feet in fast-tracking the reopening of hundreds of inquests.

Delays have meant key suspects linked to torture, assault and deaths of political detainees, including in the Aggett case, have died – they’re handed a get-out-of-jail-free card and never have to come clean to anti-apartheid activists’ families who still need answers.

Human rights lawyers and civil society activists have for years called for the National Prosecuting Authority to reopen about 300 inquests cases handed to them by the Truth and Reconciliation Commission (TRC) in 2002. The TRC recommendation was for the NPA to investigate with a view to prosecuting those who did not come forward to the TRC voluntarily and with full disclosure of their apartheid-era crimes in exchange for amnesty.

It’s taken legal threats against the NPA by victims’ families to jolt the prosecuting authority into action. Journalist Lukhanyo Calata, whose father was Fort Calata, one of the Cradock Four believed to have been abducted, terrorised and murdered by security police in June 1985, resorted to making submissions in 2019 to the Zondo Commission on State Capture to compel the NPA to answer for their inaction.

News of the indefinite postponement of the Aggett case has, however, come with two bits of welcome news this week. The reopened inquest into the death of Dr Hoosen Haffejee, who was killed in August 1977 in Durban, is set to get under way towards the end of April 2020. In the Timol matter, former security branch policeman Joao Rodrigues, who is fighting for a permanent stay of prosecution in connection with the murder of Timol, is due back in court on Friday. While this is ostensibly to set a court date for his criminal case, Timol’s nephew, Imtiaz Cajee, said it amounts to a legal tick box exercise.

“The painful reality is that we can’t proceed with the criminal case till we have a ruling from the Supreme Court of Appeal, and if Rodrigues loses his appeal there he will likely take the matter to the Constitutional Court.

“The reopening of these inquests has been driven by victims’ families and civil society and not by the NPA. We have to go to pro bono lawyers for help while Rodrigues has no financial constraints because the state is paying for his legal fees,” said Cajee, who’s become a dogged champion for victims’ families fighting to have inquests reopened.

He added that using the Promotion of Access to Information Act his family has been able to establish that taxpayers have forked out close to R3.5-million in Rodrigues’s legal fees to date. It’s something he’s also fighting to have revoked.

Cajee remains scathing of the NPA. Despite the successful reopening of his uncle’s inquest and the subsequent reversal of the original inquest findings, the case is not concluded. The original inquest in 1972 ruled that Timol had committed suicide by jumping out of a 10th floor window at John Vorster Square police station.

Cajee added: “It raises the question that in the Aggett matter, even if the original inquest findings are reversed, at what point will the NPA charge Deetlefs and others? The NPA’s record in acting is dismal; so what is the state doing about this and why is no one being held accountable?” DM/MC