At the time when democracy was about to dawn in South Africa, some 30 years ago, there was talk of Nuremberg-type trials for those who had committed egregious crimes in the name of apartheid. The nature of SA politics at that time, with the threat of members of the apartheid regime causing more mayhem in the event that a criminal justice solution to apartheid criminality was employed, ensured that the option of a Truth and Reconciliation Commission (TRC) was by far and away the most practical solution to deal with the immediate past.

The design of the TRC legislation did not, however, prevent criminal prosecutions in the event that the TRC Amnesty Committee did not grant amnesty. But prosecutions did not follow and the families of victims were left without justice. 

However, one of those matters is back in the public domain – that of Ahmed Timol.

Timol, a political activist and member of the SA Communist Party (SACP), was arrested on 22 October 1971 at a roadblock after the South African Police found pamphlets of the then banned SACP in the boot of his car. He died while in detention, on 27 October 1971. An inquest was held in 1972. Under apartheid, the murdering police were invariably protected by the magistracy. Thus, the presiding magistrate concluded that Timol committed suicide and that no person was responsible for his death.

Some 45 years later, the tenacity of the Timol family ensured that a second inquest was held, in front of Judge Billy Mothle. In October 2017, Mothle finally brought justice for this heinous crime. He concluded that Timol was pushed from Room 1026 of John Vorster Square in Johannesburg with the necessary intent to kill him and that his death was preceded by torture at the hands of the police, resulting in serious injuries to him. The judge further found that the among the participants was one Joao Rodrigues, who had been a policeman in the Security Branch and who had participated in a cover-up to conceal the crime of murder. Mothle ordered that Rodrigues be investigated with a view to being prosecuted.

Rodrigues was arrested, and charged with the murder of Timol on 30 July 2018, and then released on bail of R1,000. His first appearance in the Gauteng Division of the High Court was on 18 September 2018. The trial was then postponed pending an application by Rodrigues for a permanent stay of prosecution, which application was unsuccessful before the Gauteng High Court.

This application has now been determined on appeal before the Supreme Court of Appeal (SCA). In dismissing the appeal, Judge Aubrey Ledwaba pointed out in a dictum that ranges beyond the instant case that:

“It is firmly established that an application for the permanent stay of prosecution should not be easily granted. In Sanderson v AG Eastern Cape, the Constitutional Court pointed out that such an application has the effect of depriving society of presenting a complaint against someone who has transgressed its rules. This is such a central feature of any functioning democracy that it should never become diluted or distorted. On the contrary, any application for a stay must be considered in the context of how it impacts on the ability and the imperative of the State to carry out this important function.”

As Judge Azhar Cachalia wrote in a concurring judgment, Jacob Zuma has consistently argued, as did Rodrigues, without any compelling legal justification, that political interference had tainted his trial.

The court drew the important distinction of a delay between 1972 and 1994 in which a government that was complicit in the murder of activists like Timol was hardly likely to have applied the criminal law to its own thugs dressed in police uniforms; hence, the period could be disregarded for the purposes of an argument based on unreasonable delay.

The record after 1994 is, however, disturbing and required judicial comment, which was commendably forthcoming. Before dealing therewith, this column should address the reasons for the dismissal of the appeal. The court noted that there was no significant delay in instituting a prosecution after the inquest in 2017. Further, there was no evidence that the 47-year pre-trial delay would inevitably taint the overall fairness of the trial. As Judge Ledwaba noted: 

“The appellant has been furnished with copies of the police docket, a summary of substantial facts and the indictment. His version of the events of 27 October 1971 in the inquest in no way suggests that his memory has faded due to old age as he contended before us. In any event, as the Full Court pointed out, old age and infirmity would be relevant at the sentencing stage and are not grounds upon which the appellant can rely upon as a form of prejudice.”

As noted, the question of the inaction after the dawn of democracy raises the spectre of troubling levels of political interference. To cite Judge Ledwaba again:

“It was during this 14-year period between 2003 and 2017 that the Executive adopted a policy position conceded by the State parties that TRC cases would not be prosecuted. It is perplexing and inexplicable why such a stance was taken, both in the light of the work and report of the TRC advocating a bold prosecutions policy, the guarantee of the prosecutorial independence of the NPA, its constitutional obligation to prosecute crimes and the interests of the victims and survivors of those crimes.”

The SCA thus supported the full Bench’s recommendation that the reasons for the absence of prosecutions following the end of the TRC be properly investigated.

There are two critical implications that flow from this judgment. In the first place, it will be difficult for those charged with crimes similar to that of Rodrigues to successfully gain a permanent stay on the basis of an absence of a fair trial being conducted in the light of the time that has elapsed. In turn, this judgment should embolden the National Prosecuting Authority to initiate prosecutions against those apartheid enforcers who are still alive. The families of Steve Biko, the Cradock Four and many others deserve no less.

There is a further question: did an ANC government prevent prosecutions between 2003 and 2014? And, if so, who was responsible for this astonishing decision? In the light of this judgment and in the interests of transparency and accountability, the president should commission an independent inquiry into these questions. It is the very least that can be done in honour of those who gave their lives so that constitutional democracy could emerge out of the moral darkness of apartheid. Without answers to these questions, the past will remain the elephant in the democratic room. DM