Families, justice minister, NPA challenge Rodrigues’ attempt to escape prosecution

Joao Rodrigues (Anthony Schultz/M&G)

Joao Rodrigues (Anthony Schultz/M&G)

Apartheid-era cop João “Jan” Rodrigues is set to face mass opposition to his application for a permanent stay of proceedings in the case of anti-apartheid activist Ahmed Timol’s murder, as victims of apartheid and the justice ministry are preparing to fight his application in court.

Rodrigues is accused of murdering Timol.

Timol was 29-years-old and an underground member of the South African Communist Party at the time of his murder.
Upon being captured by the Security Branch in 1971, he was brutally tortured and killed at John Vorster Square (now Johannesburg Central police station).

Now, Justice Minister Michael Masutha, the families of activists who are believed to have been murdered by the apartheid regime, and the National Prosecuting Authority (NPA) are set to begin a battle to see Rodrigues stand trial, despite his attempt to permanently halt proceedings. It is an unprecedented moment in South Africa where the political sphere and the families have united to see one apartheid-era cop prosecuted for the murder of an anti-apartheid freedom fighter in detention.

“Yes we will opposing his application,” confirmed John Jeffery, the deputy minister of justice and correctional services. The ministry has been given a deadline of November 14 to indicate to the court whether they would oppose.

The family of Dr Hoosen Haffejee — who is believed to have been murdered by apartheid security police at Durban’s Brighton Beach police station on August 3 1977 —  is also set to ask the court to intervene in the matter to oppose Rodrigues.

READ MORE: Quest for truth paramount for Haffejee family

The Haffejee family’s attorney, Anwar Jessop, confirmed they would argue they have a right to intervene because the outcome of Rodrigues’ application may have a profound effect on influencing whether all other security branch officers who could be prosecuted will “adopt the same approach” as Rodrigues. Currently, the Haffejee family is waiting for a judge to finalise the date when the reopened inquest into Haffejee’s death will commence.

“The rights of the people and the interests of the people who fought for democracy must be given respect and dignity,” Jessop said.

“As interested family members and in the interest of the public, we are wanting to intervene on certain constitutional issues. The families have been affected by the conduct of the old Security Branch,” Jessop said.

Rodrigues did not appear before the Truth and Reconciliation Commission (TRC). Piers Pigou, an investigator for the commission, had recommended that it subpoena Rodrigues to appear and account for what happened to Timol. The TRC never did subpoena Rodrigues.

Rodrigues only began cooperating with democratic-era institutions when he was tracked down by private investigator Frank Dutton and subpoenaed by the reopened inquest into the death of Timol last year.

Presiding Judge Billy Mothle found that Rodrigues had lied during the 1972 inquest and was deliberately part of a Security Branch’s cover-up of the truth of Timol’s death.

Mothle further found that Rodrigues should be charged for perjury for his testimony during the reopened inquest, which was contradicted by the testimony of medical expert witnesses and former activists who spoke emotionally of their violent experiences in detention at John Vorster Square.

READ MORE: Luthuli inquest could be reopened

Rodrigues has not yet been charged with perjury, but he has been charged with Timol’s murder and the National Prosecuting Authority (NPA) has set out to prosecute him. But he is applying for a permanent stay of proceedings, seeking to escape prosecution on the basis that he is too old to stand trial and that the decades-long delay in the case would unfairly harm his defense because witnesses have died.

Imtiaz Cajee, Timol’s nephew, filed an emotional call for justice to be served in an affidavit to oppose Rodrigues’s application on Tuesday. Cajee, representing the Timol family, has sought to intervene in the application as an interested party.

“Permitting Rodrigues to escape justice would compound the suffering of my family caused by the deliberate policies of the state in suppressing such cases as that of Timol. It would moreover unjustly reward perpetrators such as Rodrigues and penalise victims such as me when we had diligently pursued justice for decades,” Cajee wrote in his affidavit.

“Stopping the prosecution of Rodrigues in these circumstances would deny me, my family, and all South Africans who subscribe to the rule of law, the possibility of closure of a most painful past,” he continued.

But Cajee also did not shy away from detailing how the state had delayed the prosecution and truth of his uncle’s death to emerge, effectively failing in their duties to effect justice. Cajee has been imploring the NPA to investigate his uncle’s death since 2003, and had been turned away on the basis that the NPA said there was no new evidence, despite not showing proof it had conducted a proper investigation into the case.

“I am very disappointed by the approach of the NPA, which I believed to be cavalier and uncaring. Indeed, I fell into a debilitating depression fearing that the real truth would always remain concealed,” Cajee said.

The justice ministry’s intention to oppose Rodrigues application has raised some eyebrows after past claims of political interference and repression of apartheid-era cases have dogged the pursuit of justice for victims. Former national director of public prosecutions Vusi Pikoli and former NPA head of priority crimes litigation Anton Ackermann wrote affidavits detailing such interference during the case of slain and disappeared MK fighter Nokuthula Simelane. It has never been revealed exactly who in the political realm was responsible for the alleged instructions to the NPA not to pursue these cases.

But the Timol prosecution has given hope to families of activists who died in detention that prosecution of the security police is possible. Cajee has argued that if Rodrigues is allowed to avoid trial, then constitutional rights — such as the rights to life, equality and human dignity — would be violated.  Cajee says that Timol’s life would be devalued if the man accused of killing him is allowed to walk, the family would be discriminated as victims of a crime without a prosecution, and the family’s dignity would be violated by the further suffering and protection of Rodrigues from prosecution if the court accepts his application.

Cajee has also argued that Rodrigues is continuing to have a “wilful disregard” for democratic processes by filing his application in the Pretoria high court, when the trial is meant to commence at the Johannesburg high court. Cajee has now sought to have Rodrigues’ main application ordered to return to the Johannesburg high court. The reasons why Rodrigues filed in Pretoria remains unclear, but Judge Ramarumo Monama at the Johannesburg high court has warned Rodrigues in pre-trial hearings that he could not accept “piecemeal delay tactics”.

READ MORE: Justice fundamental to dealing with the effects of mass trauma

The Timol family has said prosecution was a last resort, because their bid for justice was about truth rather than punishment. Now, however, the family is asking the court to finally let the trial commence.

“Rodrigues made his choices. Having elected not to participate in the TRC process, he reconciled himself to the possibility that an independent investigation would expose his role in my uncle’s untimely demise and open himself to prosecution. That reckoning has now come,” Cajee said.

Ra'eesa Pather

Ra'eesa Pather

Ra’eesa Pather is a general news journalist with the Mail & Guardian’s online team. She cut her teeth at The Daily Vox in Cape Town before moving to Johannesburg and joining the M&G. She's written about memory, race and gender in columns and features, and has dabbled in photography. Read more from Ra'eesa Pather

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