Jeremy Gordin | 06 November 2018 Jeremy Gordin asks whether the NPA has sufficient evidence to bring a prosecution, let alone secure a conviction
It’s fair to say that in the popular imagination the “former apartheid cop” Joao Rodrigues – actually he was an admin clerk – has come to be regarded as the embodiment of the brutality of the Security Police during the apartheid-era and the impunity with which they long operated.
Rodrigues, you will recall, was the clerk attached to the Security Branch (SB) in Pretoria, who went to (then) John Vorster Square police station carrying some documents, on the afternoon of October 27, 1971. This was the day on which detainee Ahmed Timol fell, jumped or was thrown to his death.
Or, rather, since October 2017, neither I nor anyone should write “fell, jumped or was thrown to his death”: for in his findings of October 2017, Judge Billy Mothle, who presided over the reopened inquest into Timol’s death, reversed the original 1971 inquest finding that Timol had committed suicide and ruled instead that he had been murdered.
Rodrigues, who resigned from the police in 1972 and subsequently pursued a career as a journalist and writer, was duly charged with Timol’s murder by the National Prosecuting Authority on 18 September 2018. This was framed in the media as the culmination of a long fight for justice by the Timol family, who have enjoyed (at least, relatively recently) the support of South Africa’s leading human rights organisations in this endeavour. The overwhelming public sentiment has been that the quest for justice for the Timol family should not be further delayed, and the trial should proceed as soon as possible. As Judge Ramarumo Monama commented at Rodrigues’ first appearance: “If the matter is 47 years old, it needs to be attended to as quickly as possible.”
As a result, Rodrigues’ subsequent application for a stay of prosecution on the basis that his basic constitutional rights were being violated has received what can only be termed as an underwhelming and indifferent response. This might well be a serious mistake on the part of the body politic, not to mention the media because the application is a serious one, drawn up by a serious lawyer (Adv. Jaap Cilliers SC), and it raises some very serious issues.
First, a general observation. In any criminal case – and especially in a high-profile murder trial where those accused know they will be spending the rest of their lives in jail, should they be convicted – there is obviously a great deal of punishment involved just in the process. The toll this takes on the accused is obviously further exacerbated if they are both elderly and ailing. As a result, in properly functioning and humane legal systems, prosecutions are only brought where there is compelling prima facie evidence of guilt. In other words, the “probably innocent” are never put on trial, not even for the most heinous crimes, for which the public are crying out for a show of retribution.
In his affidavit in support of the application, Rodrigues notes that he is almost 80 years’ old and in poor health. He says he suffers from diabetes, has a heart condition which requires a pacemaker, has to use a crutch to walk due to knee and hip problems, becomes tired easily, and has a fading memory. The prospect of travelling every day from Pretoria to Johannesburg to a trial expected to last for months is daunting for him.
Second, it is important here to step back and make a few observations about the second inquest.
From the time of his death, Timol’s parents insisted that their son would not have taken his own life. Their nephew Imtiaz Cajee later sought to vindicate this belief, and was joined in this effort by the Legal Resources Centre and the Foundation for Human Rights. At the second inquest the Timol family’s legal team chose not to make a case that this was a case of induced suicide (for which there was compelling evidence) but rather outright murder. Two of the main obstacles standing in the way of making this case were firstly the original autopsy evidence and secondly Rodrigues’ eyewitness testimony.
The forensic evidence was incontrovertible that Timol had died as the result of a fall from a great height. Moreover, although there were superficial injuries – bruises and abrasions – dating from an assault at the time of his arrest some days before, any broken bones or fractures would have had to have been incurred either through the impact of the fall or within a few hours beforehand.
Rodrigues testified at both the first and second inquest that he had travelled to John Vorster Square from Pretoria to bring security branch interrogators Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy (both now dead) their salary cheques and a file. He had arrived at 3.30pm and then gone to room 1026 where Timol was allegedly writing a statement in the presence of the two interrogators. At around 3.48pm Gloy and Van Niekerk had left the room to check up on some information, and before Rodrigues could stop him Timol had made for the window, opened it, and propelled himself out and to his death ten floors below.
At the second inquest the Timol family’s lawyers presented a very different version of events. This was that the night before his death Ahmed Timol had been horrifically tortured and beaten and in the process incurred severe physical injuries that left him “incapacitated, unable to move and talk, and close to death, most probably in a comatose state.” Rather than calling in a doctor to examine him, the Security Police had decided to cover-up what they had done, pushing him off the roof or out of a tenth floor window instead. This they had done in the morning not the afternoon – according to the recollections of three witnesses, none of whom testified at the first inquest, and who were “led” at the second inquest by the family’s legal representatives. Rodrigues had arrived later, and as part of an elaborate cover-up, pretended to have seen Timol fall when he had, acting out his shock and surprise to a number of other witnesses.
This new time-line seems deeply implausible; at the very least, one presumes that the late Isie Maisels QC and George Bizos, the family’s legal representatives at the first inquest, would not have missed such an obvious “time glitch”. But it had various advantages for the case the family was trying to make the second time around. For one thing it meant that Rodrigues’ account could be dismissed outright. As Advocate Varney noted in his final arguments to the inquest: “… if this Court finds that the fall did take place in the morning, then there is no need to carefully test [Rodrigues’] version of what transpired in room 1026, since it automatically follows that it must be all false.”
All this was accepted by Judge Mothle. But the “difficulty” is that, although this solved one problem for the family (“Timol was indeed murdered”), it created a problem with pinning the crime on the last living person involved in any way, namely Rodrigues. This version effectively removed Rodrigues from the scene of the crime, given that according to all prior versions he had arrived at the scene in the afternoon. He could conceivably be prosecuted for being part of a cover-up (though it would appear a statute of limitations has kicked in – see below). But one can’t prosecute someone for committing a murder committed while he wasn’t there, and in which he played no prior role.
All of which is to say that the National Directorate of Public Prosecutions (NDPP) seems to have made a right royal cock-up, or series of them, in the process of charging Rodrigues with (i) murder and (ii) defeating/or obstructing the administration of justice – and evidence of the mess emerges from Rodrigues’ application, brought 13 days ago, for a permanent stay of prosecution as well as an order prohibiting future criminal proceedings against him.
As noted, the police claimed at the time of the first inquest in 1972 that Timol had been left by Van Niekerk and Gloy in room 1026 – with Rodrigues merely “keeping an eye” on Timol because the two interrogators had to step out together. Then, according to Rodrigues, Timol suddenly stood up, evaded him, and jumped out of the window, plummeting to his death. As noted above, these claims were not accepted by Mothle in his inquest findings of October 2017.
Now then, the murder charge alleges that Rodrigues, in “common purpose” with Van Niekerk and Gloy, “unlawfully and intentionally” killed Timol on October 27, 1971. The second charge (“defeating justice”) relates to Rodrigues having allegedly furnished false information to the members of SAPS and/or the court from October 2016-October 2017 i.e., just prior to, and at, the reopened inquest.
Let’s begin with the murder charge. As Rodrigues points out in his application to the Pretoria high court: “After considering the vast body of evidential material, [Judge Mothle] put before the Court a very detailed and lengthy judgment consisting of 129 typed pages … on the 12th of October 2017.”
Here are three of Judge Mothle’s findings. (i) “On 27 October 1972, Timol’s interrogation was conducted by Gloy and Van Niekerk. At the time Timol fell, he was under the care of at least Gloy and Van Niekerk.” (ii) “Three independent witnesses put the time of Timol’s fall as mid-morning on 27 October 1971. … This Court accepts that Timol fell in the mid-morning and Rodrigues, if ever he was in room 1026 later in the afternoon, was brought there to legitimise the cover-up narrative”. (iii) “Rodrigues, on his own version, participated in the cover-up to conceal the crime of murder as an accessory after the fact of that murder, and went on to commit perjury by presenting contradictory evidence … A recommendation is made to have him investigated and prosecuted for these offences” (my interpolation and emphasis).
So: what’s with the murder charge? The judge, we read, suggested Rodrigues be investigated and prosecuted for “covering-up” and perjury – and he gets charged with murder. Has the NDPP completely lost the plot?
Not entirely, it seems. Initially, in an “earlier” version of the indictment, the state indicated it would rely on section 257 of the Criminal Procedure Act (CPA) of 1977, then opted not to rely on this section – that its mention had been a “typographical error”. As Rodrigues notes in his papers, an offence created in terms of section 257 of the CPA, even if committed, has “prescribed” in terms of section 18 of the CPA. (The charge should read – as it does now in the “corrected” indictment – “Murder, read with section 51(1) of the CPA, 51 of 1977”).
But this “typo” has greater significance. Judge Mothle found that Rodrigues was not involved in the death of Timol but that his involvement related to the “later” (ex post facto) creation of a false version of Timol’s death. But the NDPP realised that the offence with which Rodrigues could have been charged, had prescribed. So, it appears, the decision was taken to couple him to a murder charge – apparently in the hope that if this failed, he would nonetheless be snagged on the second charge.
But here is just one policy directive issued in terms of section 21 of the NPA Act: “Prosecutors should therefore not formulate more charges than are necessary just to encourage an accused person to plead guilty to some of the charges. Similarly, a more serious charge should not be proceeded with as part of a strategy to obtain a guilty plea on a less serious one”.
We soldier on. On being charged on September 18, 2018, Rodrigues was served with a charge sheet and a summary of substantial facts. The only new “facts” (since 1971/2), Rodrigues contends, was recent medical evidence from pathologists (who’d neither seen Timol’s body nor where or how it had landed) and untested evidence on the probable trajectory of “the body falling from the 10th floor and/or roof of the building”.
Rodrigues’ attorneys requested further particulars. This was the reply from the state: “The State has provided all documentation and exhibits in its possession.” I.e., there is no new evidence since the reopened inquest of last year.
Among the questions the State would not answer in requests from Rodrigues for “further particulars” were some of the following. Given the allegations on the charge sheet that Rodrigues had tortured and assaulted Timol and pushed him from the window, Rodrigues asked: “What acts of assault and/or torture did I allegedly commit?” “When did I allegedly participate in these acts of torture and assault?” “What injuries to the deceased did I allegedly cause?” The State responded: “As to how the assault on the deceased occurred, it is a matter of evidence and will be addressed by oral evidence including medical and other expert evidence.”
Readers, who are also TV viewers, might recall one of the arguments made by colourful senator Lindsey Graham (a lawyer by training) at the Senate Judiciary Committee’s hearing into Christine Blasey Ford’s allegation that Brett Kavanaugh had sexually assaulted her thirty-six years previously on an unknown date and at an unknown location: “I have a lot of sympathy for what Dr. Ford’s gone through,” Graham remarked, “but the allegations did not hold up. She can file a complaint in Maryland, a criminal complaint that will not get out of the batter’s box. If you’re accused of a crime in this country, you have to be put on notice of when it happened and where it happened and there has to be some corroboration. So this complaint will never get legs in the legal system …”
As Rodrigues remarks in his papers: “A finding will be based on whether there is prima facie evidence implicating a person as being responsible for the death of the deceased. The findings of the Court in the inquest is therefore significant … [because it] found that there was not even prima facie evidence implicating me in the murder….\\ I am advised … that it is inherently unfair … to charge me on a count of murder after the lapse of more than 47 years and under the circumstances where a High Court, after a detailed investigation and evaluation of all relevant evidence … found that I was not involved in or even present at the time of the murder of the deceased”.
Rodrigues also discusses the time lapse. The murder of Ahmed Timol was investigated by the TRC in 1996. Why, if there clearly existed a prima facie case against him, were criminal proceedings not instituted against him then?
Rodrigues also points out that there does exist a “significant and material dispute” about how Timol fell to his death. But “almost everyone” involved in the interrogation of Timol has died. “It seems to me that the decision to charge me … is not based on the case they have against me but on the fact that I am one of the few persons involved … that still is alive”. Rodrigues also notes that he has never done anything to evade justice or cause a delay in any proceedings. He presented himself willingly at the reopened inquest.
Finally, Rodrigues concludes that the delay in sorting out the truth about the death of Ahmed Timol “was not caused by resource limitations and/or so-called systemic delay. At the very least the cause for the delay and the prejudice caused are clearly the culpable and reckless activity on the part of the National Director of Prosecutions.”
Earlier in his papers, Rodrigues had noted that Imtiaz Cajee, Timol’s nephew, who worked for years to have the inquest reopened, had testified that at a time when Gloy and Van Niekerk were still alive, he had learned from then NDPP Vusi Pikoli and the head of the Priority Crimes Litigation Unit, Anton Ackermann, that issues such as the murder of Timol were not priorities at all as far as those in the VIP seats were concerned. But this is another story, is it not?