Vindication and victory in Neil Aggett case — while hundreds of other apartheid-era murder cases remain closed

‘Thank you,” were the just-audible words from the back of courtroom GC of the Johannesburg High Court as Judge Motsamai Makume rose from his seat, completing his ruling in the reopened inquest into the death in detention of the activist and trade unionist Dr Neil Aggett.

It was the voice of Sipho Kubheka, a retired trade unionist who was a member of the Metal and Allied Workers Union and the Paper, Wood and Allied Workers’ Union in the 1980s. He also called Aggett a friend.

Judge Makume’s ruling on Friday overturned the findings of a 1982 inquest which ruled that Aggett had committed suicide by hanging. Aggett was found in his cell at what was then John Vorster Square police station on 5 February 1982. It was his 70th day in detention.

The judgment meticulously recapped key evidence heard in court on and off over the past two years. Judge Makume said Aggett, who was a 28-year-old medical doctor, had, just hours before his death, laid a complaint of torture and abuse, naming his chief torturer, Lieutenant Steven Whitehead, among those responsible. He was seeking the resolution of his complaint and therefore could not have been in a frame of mind to commit suicide only hours later.

The judge found it impossible too that Aggett would have climbed the bars in his cell to affix a kikoi — a prohibited item for a detainee — to the bars and then have been able to suspend himself from the cloth to commit suicide. Judge Makume said the absence of more death-scene photographs and the fact that there was only a solitary fingerprint lifted from the scene smacked of tampering, staging and a cover-up.

The judge slammed the neglect and failure of police officers to protect Aggett, especially after he made a formal complaint against the torture he suffered. The judge outlined a culture of vindictiveness, cover-ups and hierarchies enforced by intimidation and silences.

“I am feeling relieved at this ruling because the truth has come out. Neil would never have killed himself. He was a person who was so full of life — a very quiet, very deep-thinking person, but so full of life,” Kubheka said outside court, where Food and Allied Workers Union (Fawu)  members held up a giant poster in solidarity.

Fawu, in its response to the ruling, said: “There is no way comrade Neil, after having taken a conscious decision to oppose the apartheid system with its massive inequalities, and to join the struggle with the oppressed, would want to curtail his course and kill himself.” 

The statement welcomed Judge Makume’s conclusion that it was nonsensical that Aggett had killed himself because he was supposedly embarrassed at having confessed, sold out and incriminated his comrades, as was testimony put forward in the reopened inquest.

Remembering their trade unionist days, Kubheka said Aggett, who was a member of the Food and Canning Workers Union, had rejected national military service conscription and took up contract after contract from various public hospitals to stay off the army’s radar. In between his long shifts, at what was then Baragwanath Hospital, he spent his few free hours organising for workers’ rights.

“Neil even taught all the workers first aid — he was always looking out for what was good for us.

“It has been worthwhile to wait, even all these years, to hear what we heard today in court,” Kubheka said.

For Dr Liz Floyd, who in 1981 was Aggett’s partner, fellow activist and detainee, the journey to reopening the inquest and taking the stand herself opened many old wounds.

“Preparations started in 2017 and I didn’t expect much. But as we prepared I remembered more details and the process showed me that it looked like they killed Neil.

“Some of the medical forensic evidence was not conclusive though, so I was not confident we would get the judgment of murder. But the results that were achieved in the ruling have been achieved through thorough investigation, analysis, legal strategy and powerful detainee witnesses. This ruling is the final step,” Floyd said.

In her home in the United Kingdom, Jill Burger, Aggett’s older sister, was in a churn of emotion waiting for the ruling, she said. Burger had been at court proceedings over the past two years but couldn’t be present for the handing down of the judgment on 4 March.

“Friday was just traumatic. Then when I heard that judgment, which was unbelievable, so meticulous and so good, I just started sobbing. All these emotions flooded over me — thoughts of Neil and that he was taken away from us when he was so young. That one night that they murdered him changed all of our lives forever,” said Burger.

Burger supports charges being brought for murder and perjury against the surviving policemen linked to her brother’s death and those who may have been lying under oath in the proceedings over the past two years.

She added: “So many other families have no idea what the truth is, they just know that their relatives and loved ones never came back to them. And you really need to know. And beyond that, there needs to be justice — to see perpetrators standing in court would be very good as well.”

Aggett’s case is one of only a handful of apartheid-era murders to be successfully reopened for investigation and to reach finalisation in the courts. It was one of about 300 cases earmarked by the Truth and Reconciliation Commission (TRC) for investigation by the National Prosecuting Authority (NPA) in 2003.

The ruling in the Aggett case brings into focus again the what-next for TRC cases that are unlikely to ever be reopened. It also circles back to the still unanswered questions of why the ANC government did not — and still does not — prioritise the finalisation of these cases even for their comrades in the struggle against apartheid. 

Aggett’s chief tormentor, Whitehead, died days before the NPA announced it would reopen the inquest in April 2019. The head of the Special Branch, Major Arthur Conwright, who oversaw the notorious tenth-floor operations at John Vorster Square, was also dead by then.

The murkiness of trade-offs and backroom deals as South Africa’s democratic transition was negotiated means that 28 years into democracy there are unanswered questions about why certain people or groups had — and still have — sufficient leverage to be protected from prosecution and the depth of political influence that makes those deals stick even now.

For Yasmin Sooka of the Foundation for Human Rights (FHR), who is also a former TRC commissioner, joining these dots matters because it pulls a thread through the many forms of corruption, State Capture and a lack of transparency and accountability that mark the South African story.

Sooka, who was in court for the Aggett ruling, said the FHR intends to push for criminal charges to be brought against the police officers who are still alive and linked to Aggett’s killing.

She said they are also “working to indict systemically. It’s why we have been arguing in the Nokuthula Simelane case, the Cradock Four case, the Cosas Four case that the State has to charge those responsible under crimes against humanity, not under statutory or common law. 

“We are not dealing with ordinary murders, but murders committed at the behest of a political system. People on top cannot get away with saying that people at lower ranks were acting on their own.”

Sooka said new structures need to be in place, including “a proper unit within the NPA for special directives, a special fund or special court that looks at patterns of evidence or similar evidence so we can bring a lot of cases before the court at the same time”.

Sooka said bringing closure and finalisation of the outstanding TRC cases has a direct effect on being able to dismantle some of the worst of society’s ills.

“When you look at torture and police brutality and why it’s continuing today, you see a direct link, because impunity exists still in these institutions. You can track the same line through to Marikana, or Life Esidimeni or State Capture.”

In response to the ruling, the NPA said: “The judgment vindicates the Aggett family. The NPA is on record having said that the unwarranted delays in bringing perpetrators to book was an injustice to the families of these victims and will work swiftly in applying its mind to implement the recommendations by Judge Makume.” DM