The carousel of trying to get answers out of apartheid-era policemen implicated in the assault, torture and murder of activists from the 1970s and 1980s is back in full spin. 

The latest turn is another pending legal challenge against the National Prosecuting Authority (NPA) following the NPA’s decision at the end of May not to pursue charges against two former Security Branch policemen, Seth Sons and Neville Els.

It’s also swirled up questions about the NPA’s capacity or will to act against those who committed atrocities under apartheid, as well as suspicions about what or whose agendas are at play at the prosecuting authority. The NPA was instructed as far back as 2003 by the Truth and Reconciliation Commission (TRC) to investigate and prosecute about 300 cases of people who died from unnatural circumstances linked to politically motivated killings during apartheid.

The NPA has dragged its feet and has got away with doing it. The NPA took two and half years to make a decision on pursuing prosecution of Sons and Els and this happened only after persistence and pressure from murdered anti-apartheid activist Ahmed Timol’s nephew, Imtiaz Cajee, and the family’s legal representatives. 

The two former policemen were subpoenaed three years ago to testify in the reopened inquest into Timol’s death in detention in October 1971. The reopened inquest wrapped up in 2017 with Judge Billy Mothle overturning the finding of the original 1972 inquest. He ruled that Timol did not commit suicide by jumping to his death from the 10th floor of John Vorster Square police station in downtown Joburg – Timol was interrogated, tortured and murdered. 

The judge ordered that Joao “Jan” Rodrigues, a former Security Branch policeman who was in the room at the time Timol was pushed or thrown from the window, be charged with Timol’s murder. Rodrigues is now fighting for a permanent stay of prosecution.  

Sons and Els were also singled out for further investigation and possible prosecution for lying under oath and for being involved in the torture and assaults of detainees. Throughout their testimony at the 2017 inquest, both men, who are in their 80s now, claimed to have foggy memories and no recall of torture or assault of detainees. 

But five former political detainees submitted affidavits after Sons’ 2017 court appearance detailing assaults they suffered at his hands or by members of his team while he was present. 

Sons retired from the police with the rank of lieutenant-colonel. He was one of the highest ranking non-white policemen and oversaw his own team of non-white police officers in the Security Branch. He was called the “master torturer” by some of his victims.  

Police records showed that Els, a warrant officer, was one of the police interrogators on duty the night in 1971 that another detainee, Kantilal Naik, was tortured using the “helicopter method”. The “helicopter method” involves forcing someone to crouch, placing a wooden pole behind their knees and handcuffing their wrists and ankles to the pole before suspending them upside down as the pole is balanced between two tables. 

Timol’s family lawyers say the decision last month not to prosecute, made by advocate George Baloyi, the acting director of public prosecutions in Gauteng, is “misdirected”, “fanciful” and contains “measly reasons that don’t hold water”. The same legal team also plans to bring perjury charges against another former Security Branch member who testified in the still continuing reopened inquest case of trade unionist Neil Aggett.

NPA spokesperson Phindi Mjonondwane says the assault charges prescribe after 20 years. On the perjury charges from 2017, he said the State would have to prove that the pair intentionally gave false evidence.

“Factors such as the passage of time and their advanced ages place the State in a difficult position to prove that they are deliberately lying,” Mjonondwane says. 

She adds that neither Sons nor Els testified in the original inquest proceedings in June 1972 or made statements at the time. She also says Sons was not properly put under oath in the 2017 inquest. Mjonondwane says Sons claimed his lawyers did not explain the importance of an oath to him and as such, “a witness is only competent to testify if he appreciates the difference between truth and untruth”. 

However, lawyers for the Timol family say Sons was sworn in, was warned by the judge that he was under oath and, given his senior rank in the police, would have been aware of the process of giving testimony under oath. The lawyers have also slammed the NPA for not going through the court records diligently in making their decision, as Els did, in fact, give a statement at the original inquest. 

Advanced age and loss of memory have also been dismissed as reasons not to prosecute. Rodrigues tried and failed with this defence when a full bench of the South Gauteng High Court found in June last year that “age and infirmity are considered at sentencing or prior to trial” and “there is no evidence to prove that poor memory will taint the fairness of the trial”. The court was also scathing of the political interference at the NPA that had delayed the reopening of inquests. 

For Cajee, the NPA’s decision is a “clear message that the NPA has no intention to follow through with prosecutions and that they condone lying under oath. 

“I know that the five witnesses to torture and assault at the hands of Sons were not even interviewed before the NPA took this decision. And they only got round to making this decision because I hounded them to do so for 30 months.” 

Cajee’s lawyers will keep up the fight and he’s holding out that structures like the Zondo Commission will call for the NPA to be investigated. 

“Those who have been complicit must be held accountable. We are till today reaching out to apartheid-era perpetrators with compassion and kindness to take responsibility, to come clean and give full disclosure. It’s not a weakness and we will not tire,” he says. 

He adds though: “Who is the NPA protecting, whose interests are they serving and has there been real institutional reform at the NPA?”

The NPA didn’t respond to Daily Maverick’s questions about transformation in its structures, continued allegations of political interference, secret agendas and delay tactics. 

Professor William Gumede, executive chairperson of the Democracy Works Foundation, who was also seconded to the TRC for a period, says the NPA owes families honesty at the very least, but priorities and capacity have clearly been directed to the more current agenda of investigating and prosecuting State Capture cases.

“There seems to be no time, energy, capacity or resources to spare for the past. There’s also the issue of a battle between the old and new guard and internal fighting undermines everyone. 

“We need to reimagine alternatives to justice outside of a courtroom because the anger and hurt that people feel is now not just directed at apartheid but at democracy and institutions formed in a democracy, like the NPA,” Gumede says. 

Yasmin Sooka, human rights lawyer and executive director of the Foundation for Human Rights, believes that the NPA’s track record is damning and that the structures are still plagued with “untransformed cultures and systems that need to be dismantled”. 

She adds: “The NPA has been messing families and civil society around for years in these inquest cases. There are delays, missing documents, sitting on documents and even now, the laziness of making decisions not to prosecute Sons and Els without consulting the court records.” 

Sooka agrees that new ways, both judicial and non-judicial, will need to be explored to bring the TRC inquest cases to closure. It could be a separate dedicated unit, more plea bargain deals for full disclosure, and mechanisms to start moving up the chain of command to go after those who gave the orders for killings, abductions and torture to take place. 

Not challenging the status quo or the extent of complicity is not an option though. 

Sooka says: “Torture is a crime against humanity, which makes it a crime against society and what allows torture to continue today. Torture is a crime that does not prescribe. We have to ask: have we bred monsters because we haven’t done the right thing, and do we want this trauma to be passed to yet another generation?” DM