By Atilla Kisla• 9 April 2019 – DAILY MAVERICK
The crime of apartheid has never been prosecuted before. Therefore, the Ahmed Timol case can pave the way to prosecute the atrocious crimes committed under the system of apartheid.
Forty-seven years had passed since anti-apartheid activist Ahmed Timol was killed during his detention at John Vorster Square police station in Johannesburg when the South Gauteng High Court heard the matter of Rodrigues v NDPP and Others last week.
The applicant (Rodrigues), a former police officer who is indicted for the murder of Timol and for obstruction of justice, applied for a permanent stay of proceedings based on what he asserts as an unfair trial based on an undue delay of prosecution. The case was argued before a full Bench comprising Judge Seun Dimpheletse Moshidi, Judge Narandran Jody Kollapen and Judge Ingrid Opperman.
The hearing was scheduled for two days and Joao Jan Rodrigues’ counsel, Jaap Cilliers, set out a long and extensive case setting out the unfairness and prejudice which Rodrigues faced.
This was followed by submissions from the National Director of Public Prosecutions, the Minister of Justice and Correctional Services, the Minister of Police, Howard Varney — representing Timol’s family — former commissioners of the TRC, the Pan African Bar Association and the Law Society of South Africa.
On the morning of the second day of the hearing, advocate Salim Nakhjavani, co-counsel for the Southern Africa Litigation Centre (SALC), began his oral submission with the following opening remarks:
“This case is not unique. This case is regrettably not unique. International crimes and victims seeking truth and justice are taking place all over the world, from Darfur to Sarajevo, from Palestine to Phnom Penh.”
What followed was a precise legal analysis by co-counsels Nakhjavani and Bonita Meyersfeld, which focused on an indictment for crimes against humanity with an emphasis on the crime of apartheid. They highlighted the responsibility to prosecute such crimes in South Africa. The submission as amicus curiaedemonstrated how international law, which is the specialised body of law, in this case, can guide the court in its decision-making process.
The focus of SALC’s submission is to answer why it is not sufficient to prosecute Rodrigues for the crime of murder and why it is necessary for domestic courts to recognise that this was not an ordinary murder — and that there is a legal basis to prosecute him for crimes against humanity.
The July 2018 indictment states that Rodrigues worked for the police Security Branch and describes the function of the Security Branch, which was to act as an executive arm of the apartheid system. While it does not legally characterise those facts as crimes against humanity, one cannot disregard the political context of racial oppression in this case.
Timol was killed as a result of a system that committed acts of racial discrimination, mass violence and that murdered in the name of protecting minority interests. This makes the murder of Ahmed Timol one of the most serious crimes that can be prosecuted in domestic and international law.
Therefore, the submission by SALC seeks a legal characterisation that includes the particular social and political context which requires an indictment for crimes against humanity.
Rodrigues should, therefore, be charged with the crime of apartheid as crimes against humanity. There is a legal basis that apartheid was recognised as a crime against humanity as early as 1971.
In order to substantiate this argument, SALC produced before the court international jurisprudence and an extensive number of UN General Assembly and Security Council resolutions which state that the crime of apartheid was a crime against humanity.
In the alternative, SALC submitted arguments that the crime of “crimes against humanity” was binding international law on South Africa by 1971. This means that the apartheid system can be regarded as a systematic or widespread attack directed against the civilian population.
This single case of murder, as well as the racial or political persecution combined with the systematic and widespread attack by the apartheid system, can therefore still amount to an indictment for crimes against humanity.
SALC’s submission demonstrates that the required legal basis to prosecute such crimes is and was available in 1971. Therefore, co-counsel Meyersfeld cautioned in her submission that:
“There has never been any prosecution of apartheid crimes and if we cannot prosecute this, it does indeed make an ass of the law.”
Why is this case significant?
Why is an 80-year-old, retired employee of the former Security Branch being prosecuted after nearly five decades have passed? And why is it so important to prosecute him for crimes against humanity now?
The crime of apartheid has never been prosecuted before. Therefore, this case can pave the way to prosecute the atrocious crimes that were committed under the system of apartheid.
The Truth and Reconciliation Commission, for instance, recommended more than 300 cases for further investigation or prosecution 20 years ago. So far, none of those investigations or prosecutions has begun. Since most of those crimes occurred in the 1980s, 1970s or earlier, there is an element of urgency to finally prosecute those cases due to the advanced aged of the perpetrators.
From a legal perspective, the submission by SALC assists the court with an elegant solution to the procedural issues of this case. Rodrigues argues that the delay of prosecution and political interference infringed his right to a fair trial under the Constitution.
However, following the legal characterisation by SALC, the Criminal Procedure Act clearly states that there is no limit to when the prosecution of crimes against humanity has to start. Therefore, it does not matter how much time has passed and why this time has passed, a crime against humanity can still be prosecuted, even after 47 years.
The March hearing revealed that the National Prosecuting Authority (NPA) found itself in a situation where it was unable to find the right words to explain the political interference and inertia to prosecute. A correct legal characterisation which includes an indictment for crimes against humanity could indeed help the NPA to redeem itself and act in full accordance with its constitutional obligation.
More important, an indictment for apartheid crimes as crimes against humanity will send out the right message to all parties involved:
A message to those who committed atrocious crimes during the apartheid era that no one is safe from prosecution, no matter how much time has passed.
A message to the victims and the people of South Africa that apartheid crimes can and will be prosecuted even after decades have passed in order to administer justice.
A message to the international community that apartheid as a crime against humanity is not just a concept, but a crime that will be prosecuted in South Africa in order to fight impunity. Judgment in the matter has been reserved. DM
Atilla Kisla, Senior Researcher, International Criminal Justice Programme Southern Africa Litigation Centre