Lowly apartheid clerk with heavy weight on his shoulders

When former security policeman Joao Roderigues appeared before Judge Billy Mothle in 2017 at the re-opened inquest into the death in detention of anti-apartheid activist Ahmed Timol, he presented himself as a naïve and insignificant administrative clerk who happened to be in the wrong place at the wrong time when he witnessed Timol’s suicide.

Roderigues was dismissed as a liar by Judge Mothle, who overturned the 1972 suicide finding of the presiding apartheid magistrate and replaced it with one of murder.

When Roderigues approaches a full bench of the South Gauteng High Court In Johannesburg, on 28th and 29th March 2019 for a permanent stay of prosecution for murdering Timol, the lowly security police clerk will be carrying on his shoulders the hopes and fears of hundreds, perhaps thousands, of surviving policemen, soldiers and politicians who have until now avoided being held accountable for ghastly crimes.

This cohort of torturers and butchers can no longer rely on being shielded from accountability by the National Prosecutions Authority. On 28 March, prosecutors will admit they failed to do their work in respect of apartheid era crimes due to political interference – while Roderigues will argue that the NPA’s failure to prosecute him for so long renders his prosecution unfair. At issue on 28 March is not Roderigues’ innocence or guilt. At issue is the State’s right to put him on trial.

If he succeeds, this lowly administrative functionary could be the unlikely source of get-out-of-jail-free cards to all who broke the law to uphold apartheid. The effect would be similar to the declaration of the general amnesty the National Party sought in negotiations preceding the advent of democracy.

Apartheid ended in 1994. The Truth and Reconciliation Commission was a key instrument for the new democracy to deal with the violence and indignity of its past, granting amnesty in qualifying cases to perpetrators of human rights violations. In 1999 the TRC submitted a report to government containing a series of findings and recommendations on reparations and bringing the amnesty process to its logical conclusion. Among the recommendations was that approximately 300 cases required further investigation, and, possibly, prosecution. These were cases for which perpetrators either did not apply to the commission for amnesty, or had their amnesty applications refused. Among the cases was the murder in police detention of Ahmed Timol.

Nearly 20 years after the TRC recommendations, just two of the 300 cases have made it to court: The disappearance and presumed murder of Nokuthula Simelane, and the murder of Ahmed Timol. That these cases made it to court at all was largely due to the dogged pursuit of justice by reasonably well-resourced family members.

Should Roderigues succeed in his application for a permanent stay of prosecution, it will kill the hopes of those who have patiently awaited justice for decades – and destroy the integrity of the Truth and Reconciliation Commission’s amnesty granting process.

Last month, former TRC commissioners wrote to President Cyril Ramaphosa requesting him to apologise to the families of apartheid era atrocities for the State’s failure to hold perpetrators to account, and suggesting the appointment of a commission of inquiry. The President’s response to the letter has not been divulged.

In the meantime, when Roderigues’ application runs on 28 March, two of the four respondents, the Minister of Police and Acting National Director of Public Prosecutions, will apportion blame for investigative and prosecutorial delays since 1999 on political interference. So, too, in supporting affidavits, will the former heads of the NPA and Priority Crimes Litigation Unit, Advocates Vusi Pikoli and Anton Ackerman, respectively. (The other respondents in Rodrigues’ application are the Minister of Justice and Correctional Services, and Timol’s nephew, Imtiaz Cajee.)

In a recent letter to Ms Shamilla Batoyi, Cajee pleaded with the newly appointed National Director of Public Prosecutions to investigate the so-called TRC cases, among others.

“My fight for justice is not only for Uncle Ahmed, but all other TRC victims who yearn for justice. The recent decision taken by the family of Imam Haron requesting the NPA to investigate the death of their father in police detention in 1969 is a plea from many other victims’ families throughout the country,” he wrote. “There is a need to re-constitute a dedicated team (lawyers and investigators) who remain committed to serve the interest of victims without fear, favor and prejudice.” 

Applications to be admitted as amicus curiae have been received from TRC Commissioners, South African Litigation Centre and Pan African Bar Association of South Africa.

Pending the outcome of the judgment of the 29th March 2019, the way forward will be mapped out on the 08th April 2019 in respect of the criminal charges against Rodrigues. The State has identified a number of witnesses to testify including Essop and Nassim Pahad, Ronnie Kasrils, Dr Saleem Essop and Mohammad Timol amongst others.

The matter will be heard in court 11F (on the 11th floor) at the South Gauteng High Court (Johannesburg) Kruis and Pritchard street. Proceedings will begin at 10am

Issued by Imtiaz Ahmed Cajee – nephew of Ahmed Timol