The legal firm Webber Wentzel representing Imtiaz Cajee, nephew of Ahmed Timol and the Foundation for Human Rights (FHR) has made representation to the National Prosecuting Authority (NPA) to reverse their decision not to prosecute Neville Els and Seth Sons for perjury committed in their testimony during the reopened Ahmed Timol inquest in 2017. (See Annexures: A – C2 and D – H). It had taken the NPA more than 30 months (2.5 years) to make this decision after persistent correspondence from Cajee to various officials at the NPA.
The reasons provided by the Acting Director of Public Prosecutions (DPP), Pretoria, Adv. George Baloyi for not prosecuting Els was that he was not involved in any abuse or witnessed abuse of any political detainees. Yet, the detention file of Professor Kantilal Naik reveals that Els was present when he was tortured. Els was also the subject of an investigation regarding serious allegations of assault, abuse and electrical shock treatment and even signed an undertaking relating to the provision of state legal representation on 25 November 1980.
The acting DPP asserts that Sons was not “properly put under oath”. Given Sons’ senior rank and long experience in the police there was absolutely no reason for Judge Mothle to doubt his understanding of the oath or impute any skepticism. Sons took the oath and it was accordingly binding on him throughout his testimony, notwithstanding the judge’s reminder to him of the risks involved.
Five detainees filed affidavits regarding the involvement of Sons participation and/or presence in assault of detainees. These include Ismail Momoniat, Parmananthan Naidoo (Prema), Kevin Martin, Alwyn Donovan Graham Musson and Hanif Mohamed Vally. Shockingly, it appears that none of them were interviewed by the acting DPP before making his decision not to prosecute Sons.
Another argument presented by the Acting DPP is that the incident happened in 1971, some 46 years prior to their testimony and Sons is 80 years old and Els is 82 years old and accordingly “the long effluxion of time and their advanced age will militate against a finding that they are deliberately lying.” He points out that Els and Sons did not testify or make statements in the first inquest in 1972, and therefore had to rely on their memory. However, no evidence of ill health or memory loss on the part of Sons and Els is provided. Nor is medical records to this effect been supplied by either of them.
It is evident that the investigation conducted by the NPA was sub-par, if not below par. There was no proper consideration of the facts undertaken when making this decision not to prosecute. Instead of allowing the court to test the veracity of the charges, the NPA took it upon themselves to raise defenses for Els and Sons.
Failing to hold Els and Sons accountable for misleading the court and lying under oath, sets a dangerous precedent to other Security Branch officers to do the same. It will also extend the total impunity that Security Branch officers enjoyed under apartheid, to continue in the new democratic order. This is unacceptable and the decision made by the NPA must be challenged.