Former apartheid cop Joao Rodrigues could be setting an unwelcome precedent for victims of apartheid if a judge agrees to halt his trial for the murder of anti-apartheid activist Ahmed Timol permanently, the National Prosecuting Authority (NPA) said in court papers.
In answering papers at the high court in Pretoria, Torie Pretorius, the head of the NPA’s priority crimes litigation unit, said that if Rodrigues’s application succeeds, it could create a blueprint for other former apartheid-era police officers to avoid prosecution.
The families of activists who died in similar circumstances have also entered the fray to unite in a battle for justice for their loved ones.
Timol was tortured before he was thrown from the 10th floor of John Vorster Square (now Johannesburg Central police station) or rolled off the roof of the building in October 1971.
Rodrigues filed his application for a permanent stay of prosecution in October. In court papers, he said he had been denied the right to a fair trial by undue delays and that he is too old to stand trial.
But Pretorius said: “The applicant seeks an order, the effect of which would be to effectively deny the people of the Republic of South Africa the right to justice, the right to know the truth of what happened to their loved ones, and in particular, deny the Timol family the justice which the Constitution promises and to which they are entitled to.”
Timol was killed under circumstances similar to anti-apartheid activists Hoosen Haffejee and Matthews Mabelane, who also died after plunging from the 10th floor of John Vorster Square in 1977.
Haffejee was found in a cell in Durban, hung from the grille of the door by his trousers. In each of these cases, the apartheid cops said suicide was the cause of death, but the Haffejee and Mabelane families argue that they were killed by Security Branch members.
The Haffejee family is on the brink of witnessing a reopening of the inquest into Hoosen’s death. Sarah Lall, one of the last surviving members of the family, has filed papers to intervene in Rodrigues’s application.
“The outcome of this particular application, particularly if the relief sought by the accused is granted, will undoubtedly directly, or indirectly, impact the conduct of future possible proceedings,” Lall said.
Haffejee was just 26 years old at the time of his death. Lall and his brother Ismail are the last surviving members of his nuclear family. For Lall, her brother’s death forever changed the family.
“Hoosen was the lifeblood of our family. My parents spent every cent to ensure that he studied and qualified as a medical practitioner so that he would be able to someday support and bring honour to our family. Our family hopes and dreams rested on him. We were not of sound financial standing and to this day we are still experiencing difficulties. My brother’s untimely death has shattered our family and altered the course of our lives forever,” Lall said.
Lasch Mabelane, Matthews’s brother, has also been waiting for justice. He attended almost every court hearing at the reopened inquest into Timol’s death in 2017, travelling from his home in Soweto to Pretoria. Mabelane is hoping that an inquest will be reopened into his brother’s death, too.
He has now said that if Rodrigues’s application is granted, he fears his family will never receive justice. In an affidavit filed in support of the NPA, he said: “My family and the families of all those relatives who died at the hands of the apartheid police will be prejudiced in that the only opportunity we have to find out the circumstances surrounding my brother’s death, and then pursuing those responsible who did not avail themselves at the truth and reconciliation process will be taken from us.”
The case of Matthews Mabelane went all the way to the United Nations Special Committee Against Apartheid. The UN committee said that the police had testified to Mabelane’s death being the result of him losing his balance and falling from the 10th floor of the police station. Both the UN and the TRC disputed that the police version was credible.
There are 70 other families of activists who died in detention. The Timol case has been seen as an opportunity to pursue justice against surviving apartheid cops, but there has been a history of challenges.
NPA denies delays
The Timol family have criticised e NPA for taking 24 years in the democratic era to pursue a prosecution against the apartheid-era cop accused of Ahmed’s murder.
In the time the prosecuting authority has taken to begin the prosecution, at least two other important Security Branch officers linked to Timol’s death have died. Captains Johannes Van Niekerk and Johannes Gloy are believed to have been responsible for the vicious torture inflicted on Timol, which left him so ill that he was barely conscious at the time of his death.
Salim Essop, an anti-apartheid activist who was arrested with Timol, told the reopened inquest that Gloy and Van Niekerk had interrogated him while he was in custody. As a result of their violent interrogation, Essop was hospitalised. They had slapped him, suffocated him with a plastic bag, forced him to imitate sitting on a chair while he was made to continue standing, and deprived him of sleep, Essop testified at the inquest.
In affidavits submitted to the first inquest in 1972, Gloy and Van Niekerk had admitted to interrogating Timol. They both had died by the time the inquest was reopened.
Rodrigues said in court papers that the delay in the prosecution by the NPA had prejudiced his trial because witnesses were no longer alive to give evidence in support of his case.
But the NPA denied that there were any unnecessary delays in responding papers. Pretorius said that a prosecution could only commence once Rodrigues had been charged, and there had been no delays in instituting the prosecution after the charges were made.
“The state was not ready to charge the applicant at any time before July 2018 when he was charged. The time that had elapsed since the commission of the offence was 47 years,” Pretorius said.
However, Imtiaz Cajee, Timol’s nephew, has accused the NPA of failing to pursue TRC-related cases. In an affidavit submitted to oppose Rodrigues’s attempts to stay prosecution, Cajee wrote that the democratic justice system had failed victims of apartheid.
He referred specifically to an incident in 2003 when the NPA declined to further investigate his uncle’s death, after interviewing what appeared to be only one person who was alleged to have knowledge of Timol’s final days.
“I was extremely disappointed the NPA had closed its investigation into my uncle’s murder. Indeed I doubted that any serious investigation had ever been launched,” Cajee said.
Lall added in her own papers that Rodrigues himself was responsible for the delays in the case because he had declined to appear before the TRC and give information on what had transpired during Timol’s interrogation.
The application will be heard on December 19, when the judge is expected to decide whether the Haffejee family will be allowed to intervene. A court date will then be set for the application to be heard before a full Bench.
Ben Minnaar, the attorney representing Rodrigues, said the application is separate from the trial proceedings and could be appealed if necessary. “This is not an interlocutory application; it has a separate case number. All the parties agree it can be appealed, and it can even go all the way to the Constitutional Court if necessary.”