Apartheid perpetrators: Security cop fails to obtain a stay of prosecution for the murder of Ahmed Timol

First published in the Daily Maverick 168 weekly newspaper.

The failure of former security policeman Joao Rodrigues to obtain a permanent stay of prosecution for the murder of teacher and activist Ahmed Timol nearly 50 years ago is a “resounding victory” for the survivors and their families.

Apartheid perpetrators can no longer claim that age and infirmity, or political interference, or that the failure of the National Prosecuting Authority (NPA), prejudices their rights to a fair trial, the Foundation for Human Rights (FHR) said in a joint statement with the Timol family on 22 June. Other civil society organisations, lawyers and the ANC also welcomed the judgment.

On 21 June, the Supreme Court of Appeal (SCA) dismissed the appeal by Rodrigues (82), opening the way for his criminal trial to begin ­on 12 July – unless he appeals to the Constitutional Court.

But, in what is possibly more important for the country as a whole, Judge Aubrey Ledwaba reiterated an earlier call by the full Bench of the Gauteng High Court for an independent inquiry into the political interference that has plagued 23 years of efforts to bring apartheid-era perpetrators of human rights abuses to justice and provide closure.

Appeal judge Azhar Cachalia said in his separate judgment that justice would not have been possible without the “heroic struggle” waged by the Timol family with “dogged determination”.

If Rodrigues does appeal to the ConCourt, lawyers for the Timol family will pursue “all legal channels” to force the state to stop paying the exorbitant legal costs for Rodrigues.

Taxpayers had, by last November, forked out more than R3.5-million to help Rodrigues evade justice for his part in the barbaric security police murder of Timol, who was thrown out of a 10th-storey window at the notorious John Vorster Square (now Johannesburg Central Police Station) on 27 October 1971.

Any further legal support for him would “amount to the abuse of public funds” and any further delays would “undermine the family’s right to truth and justice and would be in complete contravention of the interest of justice”, the FHR statement said.

The enormous amount of money spent on defending the indefensible was brought to light when Timol’s nephew, Imtiaz Ahmed Cajee, applied under the Promotion of Access to Information Act to know how much money the state had spent on defending Rodrigues, who has appeared in court 18 times.

The police refused to give a breakdown of the expenditure.

Presiding over the criminal trial of Rodrigues, Judge Ramarumo Monama scathingly asked why the State Attorney was continuing to fund the high legal costs to defend the former policeman.

While Rodrigues applies the by now familiar “Stalingrad tactic” of using every possible legal obstruction to delay his prosecution, each successive legal step also provides prosecutors with a legal precedent to largely stop others using the same tactics.

The Rodrigues matter came to the fore in 2017 when Judge Billy Mothle presided over the reopened inquest into Timol’s death, and overturned the 1972 inquest finding that Timol had “committed suicide”. Mothle recommended that the NPA prosecute Rodrigues, the last person to see Timol. The NPA charged Rodrigues with murder in 2018. In 2019 Rodrigues lost his appeal against the new inquest finding.

His lawyers then applied for a permanent stay of prosecution, arguing that the 47-year delay between Timol’s death and this prosecution had prejudiced his right to a fair trial, also citing political interference.

This application was dismissed by a full bench of the South Gauteng High Court in 2019. Rodrigues then petitioned the SCA, which delivered judgment on 21 June.

Timol family legal consultant Moray Hathorn, of lawyers Webber Wentzel, said Rodrigues now had 15 days to file an application for leave to appeal to the ConCourt. It is possible the ConCourt might, in chambers, dismiss the application for leave to appeal the SCA judgment. The grounds of appeal would have to be constitutional.

Meanwhile, the son of one of the Cradock Four, Lukhanyo Calata, said it was “very good news” that Rodrigues had been denied a stay of prosecution.

Lukhanyo was a toddler when his father Fort Calata, with three comrades, was asssassinated by apartheid security forces in June 1985. Lukhanyo has fought tirelessly to bring the killers and their bosses to justice.

“I’m very pleased Imtiaz [Cajee] and his family have been able to stay the course,” Calata said. “Their determination inspires us and opens the way for us, and we send our love and gratitude to him and his family,” Calata told DM168. Sunday, 27 June will be the 36th anniversary of the abduction and murder of the Cradock Four. Many obstacles to the prosecution of crimes committed before 1994 have been removed.

ANC Acting Secretary-General Jessie Duarte said: “Perpetrators of crime during the apartheid era must face justice, and we appeal once more to the NPA to speed up the process on the outstanding TRC [Truth and Reconciliation Commission] matters.”

ANC legal adviser Krish Naidoo told eNCA that the fault for the failure to prosecute post-TRC lay with the TRC, but former TRC commissioner Yasmin Sooka said that the TRC had handed all the cases over to the NPA, recommending they be pursued “vigorously”. The TRC was not able to prosecute.

The SCA expressed dismay at the interference by the executive and the president that had effectively suppressed about 400 cases arising from the TRC process.  

The SCA did not mention the secret talks, at the time of the transition to democracy, between the ANC and the police and SA Defence Force to devise a blanket amnesty. The talks failed after six years.

The best explanation for the failure to prosecute apartheid-era crimes is contained in affidavits by three former NPA attorneys to various courts. Vusi Pikoli, Anton Ackermann and Chris Macadam set out the political pressure applied to stop the prosecutions. Pikoli’s affidavit says that the motive for blocking prosecutions was fear in the ANC that some of their own would be prosecuted. The ANC ensured the prosecutions were quashed, under the guise of drawing up a new prosecutions policy.

Former TRC commissioners, lawyers, human rights and civil society groups, and the courts have all called for a Commission of Inquiry. The SCA recommended “a proper investigation”.

The minister of justice and constitutional development at the time was Brigitte Mabandla, now SA ambassador to Sweden. Pikoli, National Director of Public Prosecutions at the time, details how he fell out with her in his affidavit.

He had been summoned to a secret 2006 meeting with ministers Zola Skweyiya, Thoko Didiza, Mosiuoa Lekota and Charles Nqakula, the police commissioner and the chief director in the Presidency. Pressure was put on him to end post-TRC prosecutions. They feared ANC members could be prosecuted too. He refused.

Pikoli detailed a stormy second meeting in 2007, attended by (among others) intelligence boss Ronnie Kasrils, Mabandla, Skweyiya and several DGs, where he was bullied. He refused to bow to pressure, so then-president Thabo Mbeki suspended him.

This illegal “gross political interference” was confirmed in affidavits by Ackermann and Macadam. None of these senior ANC figures have been questioned, though Hathorn said charges of “obstruction of justice are a possibility”.

In 2018, 20 TRC cases were placed before the NPA and the Hawks. Lawyers of the families threatened court action to force the reopening of the inquests into the deaths of Dr Hoosen Haffejee and Dr Neil Aggett. On 16 August 2019, Minister of Justice Ronald Lamola announced the inquests would be reopened.

Once the Rodrigues trial proceeds, a host of other cases will gain momentum, including those of Chief Albert Luthuli, Sulaiman Saloojee, Imam Haron, Nicodimus Kgoathe, Solomon Modipane, Jacob Monakgotla, Mapetla Mohapi, Mathews Mabelane, Dr Hoosen Haffejee, Steve Biko, the Cradock Four, Nokuthula Simelane, Mxolisi Dicky Jacobs, Coline Williams and Robert Waterwitch – 16 cases out of 400 originally.

Reparations are another very sore point for the survivors and their families. The TRC Report recognised 22,000 victims and ordered reparations of R126,000 each over a six-year period. Mbeki reduced this to a once-off payment of R30,000 each, and only 17,408 people received it.

Konehali Gugushe, the youngest daughter of murdered detainee Mohapi, has attacked the post-1994 governments for failing to prosecute the post-TRC cases. Her father, a Black Consciousness leader, allegedly “committed suicide” on 5 August 1976 while in security police detention.

A handwriting expert later confirmed Mohapi’s “suicide note” had been forged. In the 2020 Imam Abdullah Haron Annual Memorial Lecture, she accused the state of being “incapable”.

“I implore the NPA to show the will to undertake the investigations that they should, to allocate the appropriate resources and prosecute the people they need to. The culture of concealment, of protecting nameless and faceless people should end,” she said.

“When my father was killed, I was seven months old and now, 44 years later, I have still not been able to find peace with his death,” she said.

Her words have been echoed by hundreds of family members of those whose brothers, sisters, fathers, daughters and relatives were murdered by apartheid-era perpetrators. The country cannot move forward until those perpetrators have been brought to justice.

The FHR told DM168 that three key issues needed to be addressed: a dedicated capacity or unit in the Hawks and NPA to focus on apartheid-era crimes; the continued participation in decision-making by people implicated in the suppression of the TRC cases; and a systemic problem in accessing archives.

FHR head of the Unfinished Business of the TRC Programme Ahmed Mayet said “the [SCA] judgment gives us hope and energy”.

It’s time for a commission of inquiry. Those who blocked the post-TRC prosecutions must face justice, and prosecutions by a skilled and dedicated team of prosecutors and investigators not tainted by the old regime must move the national reconciliation and justice project forward. DM168

David Forbes is an independent social, political and economic commentator with an ecosocialist view of the world.

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.