Joao Rodrigues, the accused for the 1971 murder of anti-apartheid activist Ahmed Timol, will appear before Judge Monama at the Palm Ridge Magistrate Court (Court 13 at 10:00) on Thursday, 09th May 2019.

The criminal case is expected to be postponed until judgment is handed down for Rodrigues’s application for a permanent stay of prosecution that was argued in front of a full bench on the 28th and 29th March 2019.

Ends…. ​
Issued by Imtiaz Ahmed Cajee – nephew of Ahmed Timol​

Apartheid-Era Crimes: Indeed “Justice Delayed is Justice Denied”

OpinioJuris In association with the International Commission of Jurists

Angela Mudukuti

The story of Ahmed Timol is rooted in our brutal past. He was not cut down on the battlefield while in the line of fire. He was detained under pernicious security laws and sadistically tortured for more than 4 days. Timol’s tormentors were police officers who were meant to serve and protect, particularly those in their care. While in an utterly incapacitated and defenceless state, and to cover up their crimes, Timol was thrown from the 10th floor of John Vorster Square. Even though he survived the fall the police did not a lift a finger to help him. Indeed, they took deliberate steps to ensure his death.”

This is the opening paragraph from the submissions made in the South African case of  Rodrigues v NDPP & Others which was heard in court at the end of last month and relates to the murder of anti-apartheid stalwart Ahmed Timol at the hands of the apartheid police. Justice for the crimes of the committed during the apartheid era has been delayed, denied, actively frustrated and the Timol matter is emblematic in this regard.

Ahmed Timol was a schoolteacher and a political activist who fought for equality, freedom and an end to racism in South Africa until his murder in 1971. Accused of being a terrorist, the Security Branch of the apartheid police arrested Timol in October 1971 and after being brutally tortured he was murdered in detention four days later.

According to the apartheid police, Timol committed suicide by jumping to his death from the 10th story of the infamous John Vorster Police Station, in Johannesburg. However, Timol was actually thrown out of that building by the police. His death sparked outrage and numerous questions were asked. The Attorney General at the time refused to prosecute and in 1972 an inquest into his death was held. This process served merely to “legitimise” the act of murder and ensure that the perpetrators avoided the faintest whiff of suspicion. Nevertheless, Timol’s family, in particular, his nephew lmitiaz Cajee, have searched relentlessly for answers including uncovering additional evidence that resulted in the court ordered re-opening of the Inquest in 2017, 46 years after Timol’s death.

The re-opening of an inquest of this nature is unprecedented and one of the most important decisions made in terms of accountability for crimes committed during apartheid, a matter I wrote about here.  The reopening of the Inquest led to a judgement from the High Court that Timol was in fact murdered, opening the door for the criminal prosecution of the Security Branch members who are still alive and were complicit in the cover up of the murder, including Joao Rodrigues.

Rodrigues was present when Timol was savagely pushed out of the window and was dishonest during the 1972 Inquest stating that Timol committed suicide. He repeated his lies during the 2017 Inquest and added additional information that exposed him as untruthful. The judge ruled that,

“Rodrigues, on his own version, participated in the cover up to conceal the crime of murder as an accessary after the fact of that murder, and went on to commit perjury by presenting contradictory evidence before the 1972 and 2017 inquests. A recommendation is made to have him investigated and prosecuted for these offences.”

This is why Rodrigues stands charged with murder and defeating the ends of justice. He is seeking a stay of prosecution with regard to the murder charge alleging that the it would infringe his constitutional rights including his right to dignity given that he is 80 years old and that the crime occurred 48 years ago. From the perspective of the Timol family and other families in a similar position, this argument adds insult to injury and is yet another attempt to evade justice. Be that as it may, the South Gauteng Court has heard arguments in the stay of prosecution case from the Timol family, Rodrigues and other interested parties and has reserved judgement.

Roughly 30 members of the Security Branch were complicit in Timol’s arrest, detention and superficial “investigation” of his death. Only three of were alive at the 2017 Inquest- a classic case of the old, yet true adage that “justice delayed is justice denied.”

73 anti-apartheid activists died under suspicious circumstances in detention between 1963 and 1990 and the impunity continues as no one has been held accountable. The same lack of accountability is evident following an important yet wholly unfulfilling truth and reconciliation process in South Africa. According to the TRC process, those who failed to apply for amnesty, (a category that also includes Rodrigues) and those who appeared before the Commission but failed fully and truthfully disclose their crimes – ought to be prosecuted. In 1999 TRC commissioners gave the National Prosecuting Authority (NPA) a list of more than 300 cases for further investigation and prosecution and until recently, little or no action had been taken because of political interference from the ruling party, the African National Congress (ANC) and its government.

The case of Nokuthula Simelane exemplifies the extent of political interference.  She was a young anti-apartheid activists who was kidnapped, tortured and murdered in 1983. Evidence and information from the TRC process revealed who is responsible for her abuse yet the NPA failed to prosecute until the threat of legal action from Simelane’s family. In 2015, the NPA to finally decided to fulfil its legal obligations and prosecute the suspected perpetrators. Having worked on this case myself, I will not soon forget how the NPA, under previous leadership dragged its feet and produced every single conceivable excuse not to prosecute the suspected perpetrators.

The disturbing accounts of political interference left me wondering if justice would remain elusive and unattainable. Former National Director of Public Prosecutions Vusi Pikoli who was suspended after pursuing apartheid cases, details in sworn affidavit the extent of political interference that hindered in his work as a prosecutor,

I confirm that there was political interference that effectively barred or delayed the investigation and possible prosecution of cases recommended for prosecution by the TRC”. 

This truly is a shameful stain on the legacy of the post-apartheid government of South Africa.

 Many have attributed the reluctance to prosecute to the fear that the crimes committed by the ANC during apartheid may come to light if the apartheid police are prosecuted.  The former TRC commissioners penned a passionate plea for an apology to the victims and the establishment of a commission of inquiry to look into the suppression of apartheid era cases to the current president of South Africa. They too clearly state that, “Both the SAPS [South African Police Service] and the NPA colluded with political forces to ensure the deliberate suppression of the bulk of apartheid era cases.”

At least the case of Nokuthula Simelane’s and the prosecution of those accused of her torture and murder may finally proceed as the hurdle of legal fees for the accused seems to have been settled for the moment. Given the appointment of a new National Director for Public Prosecutions at the end of last year, there is perhaps renewed hope that the NPA will fulfil its mandate and prosecute apartheid era crimes. Failure to do so will continue to deprive families of much needed closure and justice further hindering true reconciliation and ultimately keeping the nation and its people gripped in the injustices of the past.