The application for leave to appeal to be heard in the matter of State vs Joao Rodrigues on Wednesday, 18 September 2019, no longer relates only to the murder of anti-apartheid activist Ahmed Timol, but raises questions of accountability for crimes perpetrated during the apartheid period in South Africa. Rodrigues was investigated for his role in the murder of Timol on 27 October 1971 as per the historic ruling made by Judge Billy Mothle on the 12th October 2017 in the re-opening of the Ahmed Timol Inquest. The 2017 inquest reversed the 1972 finding that Timol had committed suicide. It found that Timol was murdered in police detention.
The dawn of democratic South Africa with the historical elections in 1994, led to the establishment of the Truth and Reconciliation Commission (TRC) in terms of the Promotion of National Unity and Reconciliation Act, No.34 of 1995. This was a result of negotiations between major political role players in the country. A key feature of the Act was that amnesty had to be applied for voluntarily and applications had to make full disclosure of the acts or crimes they had been involved in. If they were refused amnesty or failed to apply for amnesty, the law would follow course. In 1998, an amendment to the Promotion of National Unity and Reconciliation Act No. 34 of 1995 (the Act) gave the President the power to reconvene the Commission to consider the Committee’s report and determine a date for the dissolution of the Commission. On 16 November 2001, President Thabo Mbeki determined 31 March 2002 as the date for such dissolution.
A Presidential proclamation was passed on 23 March 2003 creating the Priority Crimes Litigation Unit (PCLU). This unit was located in the office of the National Director of Public Prosecutions (NDPP). One of its mandates emanates from the findings of the TRC, viz to conduct prosecutions of more than 300 TRC cases identified for same by the TRC. The unit is dependent on the South African Police Service (SAPS) to conduct investigations.
The record of the PCLU since inception in investigating and prosecuting TRC cases is nothing short of appalling. This inaction can only be construed as delaying tactics. Security Branch Officers and vital witnesses are passing on as the NPA stumbles on with no sense of urgency in what they perceive as “looking into TRC cases”. The NPA are not only to blame, but also the SAPS, and in particular the Hawks. There is little indication that the Hawks are investigating any of the TRC cases seriously.
In the Nokuthula Simelane case which has been stagnant on the court roll for more than three years, one of the main interrogators, Sergeant Msebenzi ‘Vastrap’ Radebe died; Stephen Whitehead, the primary interrogator in the Neil Aggett case, has died; former Security Branch Colonel James Brough Taylor who was involved in the arrest and brutal interrogation of Dr Hoosen Haffejee has also since died. Ernest Matthis who testified at the 2017 Timol Inquest that he had seen Timol fall also died. He was expected to testify in the murder trial of Jaoa Rodrigues. All these deaths took place this year between April and August 2019. There is no indication as to how many other apartheid-era security officers implicated in torture and deaths of political activists have since passed on.
In an affidavit submitted by the National Prosecuting Authority in the 2019 application for a permanent stay in the Joao Roderigues matter (which emanated from the finding of the re-opened inquest of Mr Ahmed Timol) Dr. Torie Pretorius, head of the Priority Litigation Crimes Unit (PCLU) acting on behalf of the NPA stated in his February 2019 affidavit that politicians had instructed prosecutors to stop work pertaining to all TRC cases. The court questioned the motive behind the suspicious late filing of an affidavit by Adv Chris McAdam by the NPA leadership at the time. It is McAdam who now heads the very same unit which was mandated to investigate and where possible institute prosecutions emanating from the over 300 cases referred to the Priority Crimes Litigation Unit as early as 2002. The Full Bench stated “it begs the question as to why such an important affidavit was not filed as part of the answering affidavit when it was ready and presumably available to be filed. The suggestion that it was deliberately withheld from this Court is difficult to refute especially given its seriousness and the detailed allegations contained therein of political interference.)”
The full bench of the South Gauteng High Court in its judgment dismissing Rodrigues’s application for a permanent stay of prosecution on 31st May 2019 referred to the issue of political interference during the period between 2003 and 2017. “The court directed that the conduct of the relevant officials and others at the time needed to be brought to the attention of the National Director of Public Prosecutions for her consideration so that she may take any necessary action. The court concluded that although there was political interference, investigating it further in this court was not necessary”, the ruling stated. The court was scathing on the NPA, requesting them “to stop playing the victim” and ordered them to perform their duties as mandated in terms of the constituting Act.
To date, no steps have been taken against those instructing the NPA to suppress the cases nor against the prosecutors who colluded with the politicians.
Correspondence was forwarded from both TRC Commissioners on 05th February 2019 and from the Victims’ Family Group on 23rd June 2019 to President Ramaphosa to appoint a commission of inquiry into the political interference that has stopped the investigation and prosecution of virtually all the cases referred by the TRC to the National Prosecuting Authority (NPA). To date, the Presidency has not responded. The Ministers of Justice and Police shamefully remained conspicuously silent on the claims of political interference. Shamefully, no member of the executive or the ruling party has even acknowledged that political interference suppressed hundreds of cases. The Justice Minister Ronald Lamola in his 2019 Budget Speech remarked that it won’t happen going forward and failed to offer any apology to the long suffering of families.
The first court appearance of Rodrigues after the Mothle ruling in 2017 was on the 30th July 2018. (See timeline below). On the 28th June 2019, the full bench dismissed the application for a permanent stay of prosecution brought by Joao Rodrigues’s legal teams, heard on 28th and 29th March 2019. The full bench consisting of Judges Kollapen, Moshidi and Opperman will hear arguments from Rodrigues’s legal team, Advocate Jaap Minaar SC, Advocate Coetzee and Attorney Mr. Minaar (formerly from the Office of the State Attorney) appealing the ruling. Arguments from the legal teams opposing the application will be led by Advocate Howard Barney, Advocate Thai Scott and Moray Hathorn from Webber Wentzel on Wednesday, 18 September 2019 at the South Gauteng High Court in Johannesburg, Kruis and Pritchard Street. Proceedings will commence at 10am (Awaiting confirmation of ROOM Number) and members of the public are welcome to attend.
A PAIA Application submitted in May 2019 seeking to ascertain the total legal costs incurred by the State for Rodrigues’s legal fees have to date not been responded to by the Department of Justice.
Rodrigues supplementary application and response from Fourth Respondent have been submitted.
Pending the outcome of the appeal, the way forward in the criminal case against Rodrigues, will be mapped out on the 28th September 2019. The State is preparing for the case against Rodrigues and has identified a number experts, including a trajectory specialist, numerous witnesses including Mohammad Timol (younger brother of Ahmed Timol), Ronnie Kasrils, Dr Saleem Essop and brothers Essop and Nassim Pahad.
The families of Chief Albert Luthuli, Sulaiman Saloojee Imam Haron, Nicodimus Kgoathe, Solomon Modipane, Jacob Monakgotla, Mapetla Mohapi, Mathews Mabelane, Dr Hoosen Haffejee, Steve Biko, Cradock Four, Dr Neil Aggett, Nokuthula Simelane, Mxolisi Dicky Jacobs, Coline Williams, Robert Waterwitch and many others eagerly await the outcome of the Rodrigues court case. Justice for the victims and their families remains elusive in South Africa with the democratically elected government evincing little or no interest in finding truth and closure for victims of apartheid-era crimes.
Timeline:
26 June 2017
Re-Opening of the Timol Inquest
12 October 2017
Ruling handed down and 1972 Verdict overturned
30 July 2018
Rodrigues charged and 1st court appearance in Johannesburg Magistrate Court
18 September 2018
Rodrigues Court Appearance at South Gauteng High Court in Johannesburg
15 October 2018
Rodrigues Court Appearance at South Gauteng High Court in Johannesburg
22 October 2018
Rodrigues Court Appearance at South Gauteng High Court in Johannesburg
20 November 2019
Meeting in Chambers
28 January 2019
Rodrigues Court Appearance at Palm Ridge Court, Germiston
28 & 29 March 2019
Application for Permanent Stay of Prosecution (342A) Argued at South Gauteng High Court in Johannesburg
31 May 2019
Judgment handed down at South Gauteng High Court in Johannesburg
28 June 2019
Rodrigues Court Appearance at the South Gauteng High Court in Johannesburg
02 August 2019
Rodrigues Court Appearance at Palm Ridge Court, Germiston
18 September 2019
Application for leave to appeal, South Gauteng High Court
25 September 2019
Criminal Case
Issued by Imtiaz Ahmed Cajee – nephew of Ahmed Timol
…Ends
