Timol case: Apartheid cops can still face trial despite NPA's delays

In a significant victory for victims of apartheid brutality, on Monday a full bench of the South Gauteng High Court dismissed former Security Branch policeman Joao Rodrigues' attempt to have charges dropped for the 1971 murder of anti-apartheid activist Ahmed Timol.

Judge Seun Moshidi said the court had introduced the new criteria of public interest in evaluating Rodrigues' stay of prosecution application and it is in the interests of the public and victims of apartheid crimes that Rodrigues face trial.

Significantly for other relatives of activists killed by police during apartheid, the court said the accused should still face trial despite the delay in bringing charges.

Rodrigues, charged with murder and defeating the ends of justice, has claimed he was the last person to see Timol in 1971 before he was thrown to his death from the tenth floor of John Vorster Square, now called Johannesburg Central Police Station.

He argued that his right to a fair trial would be violated if charges went ahead as the NPA had repeated opportunities to charge over the last two decades but did not.

He also claimed that there was no evidence linking him to the murder, that he had a poor memory in his old age, and he was being used as a scapegoat because the two officers found to have probably murdered Timol had since died.

“This case is difficult because it demands we visit our troubled past,” said Moshidi.

He said the prosecution should proceed to uphold “the principles of accountability and justice”.

The Rodrigues case follows the re-opening of the inquest into Timol's death after a 1972 inquest found that he committed suicide. In 2017, the North Gauteng High Court overturned the finding and said Timol was murdered.

Timol's nephew Imtiaz Cajee, who fought to have the inquest re-opened, said on Monday that he was ecstatic at the ruling. He said the judgment means that the criminal case against Rodrigues can now hopefully be heard in court.

“This is a clear message to former apartheid-era policemen that crimes committed during those times won’t be swept under the carpet. But in the same breath it gives hope to families of victims that they will one day get closure on the deaths of their loved ones,” said Cajee.

Cajee also called on National Director of Public Prosecutions (NDPP) Shamila Batohi and newly-appointed Justice Minister Ronald Lamola to prioritise apartheid-era crimes. He said Timol's family had made repeated calls for Rodrigues to admit what happened and stop delaying the judicial process.

Former Truth and Reconciliation Commission (TRC) commissioner Yasmin Sooka said in 1999 that the TRC gave a list of over 300 suspects accused of apartheid-era crimes to the Directorate of Special Operations, or the Scorpions, but nothing was done and only in 2005 did the NPA finalise prosecution guidelines.

She called on Batohi to appoint a team to deal specifically with such cases, adding that the team should not include those who have been complicit in the delay of justice.

Rodrigues's defence team is paid for by the government as he was a state employee while he committed his alleged crimes. Sooka was critical of the decision to pay for the three senior lawyers in his defence.

Rodrigues has 14 days to appeal the judgment and Timol's family is concerned that the case may continue to be delayed. The accused is in his eighties and there is a concern that he, like the other officers allegedly responsible, may not be held accountable.

A member of Rodrigues' legal team, Ben Minnaar, told Daily Maverick that he was not ready to comment on the judgment.

“We are not going to comment on the matter at this stage. We are going to study the judgment and take instruction from our client. Then we will be in a position to comment,” said Minnaar.

NPA Gauteng spokesperson Phindi Mjonondwane said it was in society's interests that those accused of serious crimes are held accountable.

Asked about the delays in prosecutions, she said multiple apartheid-era cases were going ahead.

“A whole lot of investigations are happening in the background,” said Mjonondwane, calling for the public to “bear with us”. DM