Victim or killer? Apartheid-era cop asks State to dismiss murder charges against him

Former apartheid police officer Joao Rodrigues believes he is also a victim, along with the family of anti-apartheid activist Ahmed Timol, who was found by an inquest last year to have been killed by the security branch in 1971.

Rodrigues appeared in the South Gauteng High Court on Monday on charges of murder and defeating the ends of justice. His defence team wants the charges thrown out, claiming there is no evidence he is linked to the murder, the state failed to prosecute him timeously, and that he is being targeted only because those directly linked to Timol's killing have since died.

In Rodrigues' permanent stay of prosecution application, he said: “I am now, together with the family of the deceased, a victim of the (national director of public prosecution's) culpable conduct.”

In 2017, the re-opening of an inquest into Timol's death found he was killed by security branch officers, pushed or thrown off the 10^th floor of the infamous John Vorster Police Station in Johannesburg after he was arrested, and then tortured, for his anti-apartheid activities.

The 2017 inquest overturned a 1972 inquest's finding that said Timol committed suicide. Judge Billy Mothle said there were prima facie cases of murder against security branch officers Captain Johannes van Niekerk and Captain Johannes Gloy. Van Niekerk died in 2006 and Gloy in 2012. Rodrigues was found to have lied about the killing and should be investigated.

He was charged with murder and defeating the ends of justice earlier this year for his role in the killing and for lying to multiple inquests.

On Monday, the South Gauteng High Court postponed Rodrigues' trial until 28 January, 2019. In the meantime, the court will consider his application to scrap the case.

Rodrigues, represented by Advocate Jaap Cilliers SC, argued that his right to a fair trial, to be prosecuted without unreasonable delay, to be informed in detail of the charges against him, and challenge the evidence have all been violated.

Rodrigues testified during the inquest that he was the last person to see Timol in the afternoon before he supposedly jumped off the 10^th floor and killed himself. The inquest rejected his testimony and said Timol was killed on the morning of 27 October, 1971.

“My only involvement was that I participated in the cover-up to conceal the crime of murder as an accessory after the fact of the murder,” Rodrigues said in his application to scrap the case.

He repeatedly called on prosecutors to provide evidence of how he was involved in Timol's murder, which he said they had failed to do.

Rodrigues claimed he was only being charged with murder because those who were fingered as most likely having tortured and killed Timol – Gloy and Van Niekerk – have died.

His application outlines the laws necessitating the NPA to prosecute a suspect as soon as they have sufficient evidence and those around around the right to a fair trial where suspects are prosecuted without undue delay.

Rodrigues spoke at the 1972 inquest into Timol's death. He was interviewed by the Truth and Reconciliation Commission (TRC). He testified at the 2017 inquest (albeit after a family member outed him).

A key aspect of his defence relates to the state's failure to prosecute apartheid-era suspects who either testified and did not receive amnesty, and should have then been investigated and prosecuted, or who did not testify at all. The TRC recommended that around 300 individuals be investigated and prosecuted, but under the democratic government extremely few were ever held accountable.

“There is no reason that the (NPA) could not and should not have proceeded with criminal proceedings should they have held the view that a prima facie case exists against me,” said Rodrigues in his application for stay of prosecution.

“I am seriously prejudiced by the fact that these proceedings are now instituted against me some 47 years later,” he added.

Rodrigues noted his age, “approximately 80 years old”, and the various illnesses he has. He said many of the witnesses, the cops and the pathologists, have died. He said his memory was failing him and many of the documents from the apartheid era have disappeared.

The state's failure to prosecute those suspected of crimes of apartheid makes Rodrigues's case. In his attempts to get off, he even refers to Timol's nephew Imtiaz Cajee's dogged attempts to have the case investigated to show how the state has failed to take such crimes seriously.

The case has been postponed until 28 January, 2019. But in the months beforehand the court will decide on Rodrigues' stay of prosecution application. Cajee welcomed the trial date and the NPA's Phindi Mjonodwane said the state will oppose Rodrigues' attempts to avoid a trial.

An estimated 73 activists were killed while in detention during apartheid. The court's decision on Rodrigues' application – how it assesses the state's reluctance to prosecute apartheid cops and its failure to act on the TRC recommendations – will probably set a precedent that will determine whether the families of the dead find justice. DM