Opinionista Professor Balthazar 23 June 2021

We must form a commission to investigate apartheid-era crimes and the ANC government’s reluctance to prosecute them

Did an ANC government prevent apartheid-era crime prosecutions from 2003 to 2014? And, if so, who was responsible for this astonishing decision?

Professor Balthazar

In real life, Professor Balthazar is one South Africa's foremost legal minds. He chooses to remain anonymous, so it doesn't interfere with his daily duties.

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

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All Comments 15

  • I don’t get it? In a matter of 2 days, three highly respected journalists posted articles in two of South Africa’s premier online media sites, DM and News24, all three saying basically the same thing: “The establishment of an enquiry to investigate apartheid-era crimes, and The ANC’s possible intentional effort to cover it up”. First Mark Heywood (DM), then Karyn Maughn, and now Prof. (secret) Balt….. It is almost if they came together at a highly secret venue, having a few beers, and decided to join hands to expose yet another conspiracy.
    Never mind that such an enquiry will, once again, cost the tax payers millions of rands, and like so many commissions of enquiry over the last few years (Life Esidemeni; the PIC; VBS Bank..to a degree, and even one of basically the same theme, the murder of Ahmed Timol). Nevermind that South Africa’s are patiently awaiting the really big one, the final report of the Zondo commission. Never mind an economy that has fallen to pieces. Never mind joblessness, poverty, pathetic municipal service delivery, police failures/inaction), a crime rate out of control, a government in chaos due to infighting, the list goes on and on. Yet these three journalists insist another commission is a high priority. As if the rest of the country really care what happened 50 years ago, or what else the ANC is hiding. All we want is to have a better life today, and tomorrow. We are in lockdown, people are dying, and what these three want: Yet another enquiry!

  • At what stage should a crime of the distant past be forgotten, ignored or overlooked, according ro some commentators arguments above? If Hitler would have been alive today, should he be prosecuted? Perhaps we must pardon Jacob on the basis that his involvement in the arms deal scandal was long ago.

    • Fortunately it’s simple enough to recognise when a supposed “foremost legal mind” is simply a spokesperson for a certain flavour of political rhetoric. The opinions orginating from such a source can then be filtered accordingly.

      Personally I have no problem with any wrongdoers being investigated and prosecuted, even decades after the fact, as long as the call for justice is just as vociferously voiced for wrongdoings on all sides of the fence. Bring on the investigations into the atrocities orginating with the ANC, MK, and their allies!

      And for heaven’s sake, let’s see just ONE blatantly corrupt ANC bigwig in an orange overall and handcuffs for the rest of his days. No medical parole. No presidential pardon.

      Unless that happens, I will see this for what it most likely is: a desperate attempt at a counter to the overwhelming stench of 27 years of ANC rule in an election year.

  • 10 years after the end of WWII very few war criminals that survived remained in prison. Here we are 27 years into ‘democracy’ still running around in confused circles. Nothing you or anyone else can do can or will change the past. MOVE ON, MOVE FORWARD. Put it behind you.

  • There is a certain amount of hypocracy and doublespeak among some of the commentators. Justice should prevail and universally agreed-upon principles and values should be applied irrespective of the timeframe. If a crime has been commited one second ago or one century ago matters not. The fact that there are inconsistencies in the application of the principle for whatever reason is no ground for the principle to be discarded. Humanity and the progress of homo sapiens to become a worthwhile species depends on it.
    Furthermore, what does it matter if a truth has been spoken by a celebrity or some unknown entity? The criterium should not be who said what, but rather what was said.

  • The Truth and Reconciliation Commission was the investigation into crimes committed under apartheid. Sadly it did not investigate Robert Mcbride who killed 3 women and injured another 69 people with the car bomb outside Mcgoos Bar in Durban. Remember that?
    Works both ways….time to look forward and consign history to where it belongs.

    • Just to confirm….Robert McBride, formally of IPID, was appointed by CR as director for the Foreign Branch of the State Security Agency only last year! Go figure!

    • None of the staff of the erstwhile old SA Security Sercice went to the TRC to confess to anything. No remorse means no forgiveness means; no closure for the Timol family. Justice denied. Read the judge’s verdict to try and get some understanding for what is at stake. It is morally wrong to ignore any crime, including McBride’s. Two wrongs does not make anything right. Mutual trust will never be achieved if justice has not been delivered.

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