The political interference that delayed the investigations into apartheid-era crimes amounted to “state capture”, the Johannesburg high court heard on Monday, on the first day of the inquest into Neil Aggett’s death.
In his opening remarks before the court, counsel for the Aggett family, Howard Varney, said the Aggett inquest has “been plagued with ongoing delays”.
“We now know that this was not just a question of indifference or neglect on the part of the SAPS [South African Police Service] and the NPA [National Prosecuting Authority],” Varney said.
“We now know that post the winding up of the TRC [Truth and Reconciliation Commission], decisions were taken at the highest political level to close down the investigations into the cases referred by the TRC to the NPA … including the Aggett case.”
Aggett, a medical doctor and organiser for the Food and Canning Workers’ Union, was found hanged in his cell at what was then the John Vorster Square police station in central Johannesburg in the early hours of February 5 1982.
He had been in detention for 70 days after being arrested by apartheid Security Branch police for his role in the labour movement. During his time in detention, Aggett wrote to the magistrate responsible for overseeing detainees, AGJ Wessels, complaining that he was being tortured.
But an inquest into Aggett’s death, presided over by magistrate Pieter Kotze, ruled it a death by suicide.
After the fall of apartheid, the TRC found that the interrogation of Aggett and the treatment he received in detention led directly to his death.
The TRC report, handed to then president Nelson Mandela in 1998, found the apartheid state, its minister of police, its commissioner of police and the head of the Security Branch responsible for Aggett’s death.
The Hawks registered an official investigation into Aggett’s death in late 2012. Three years later, the National Prosecuting Authority (NPA) opened its investigation and in April last year then justice minister Michael Masutha authorised its application to reopen the inquest.
In papers filed, the National Prosecuting Authority admitted that political interference stopped the investigations into the TRC cases, Varney said.
He added: “Such interference amounted to state capture of the criminal justice system in relation to this class of cases. It allowed powerful forces in society to impose their will on institutions meant to uphold the rule of law. In doing so they guaranteed total impunity for some of the most serious crimes ever committed in South Africa.”
Varney said Aggett family representatives met with then national director of public prosecutions (NDPP), Shaun Abrahams, as far back as 2016.
According to Varney, the Aggett family representatives handed Abrahams “conclusive evidence” that Security Branch officials had perjured themselves in the first inquest on the question of torture.
Several threats of legal action had to be made against the NPA and the minister of justice to bring about the fresh inquest, Varney added. “The extensive delay has caused the Aggett family to suffer great prejudice.”
Varney pointed out that the key suspect in Aggett’s death, chief interrogator Stephan Whitehead, reportedly died in the very week that Masutha announced the reopening of the Aggett inquest.
“Had the NDPP and the minister acted diligently and without delay following the meeting of January 2016, the Aggett inquest could have been held before Whitehead’s death — and he could have been held to account for the role he played in Neil’s death.”
According to Varney, even after Masutha’s announcement, “there was more inaction and the family again had to threaten legal action”.
Varney cited the application brought by João Rodrigues last year to permanently stay the prosecution against him for his alleged role in the murder of anti-apartheid activist Ahmed Timol.
In an affidavit relating to the Rodrigues matter last year, human rights lawyer Yasmin Sooka — who also attended the Aggett inquest on Monday — said she and other TRC commissioners had been disappointed by the lack of prosecutions in apartheid-era cases.
“At the conclusion of the TRC, we former TRC commissioners were thus unanimous in our belief that, while our job was complete, the next stage belonged to the NPA,” Sooka said in the affidavit.
“We expected that prosecutions would follow for those that had not come forward and applied for amnesty, or were refused amnesty.”
NPA spokesperson Phindi Mjonondwane told the Mail & Guardian on Monday: “We must admit as the NPA that the failure to act by the previous government, by the previous regime, has caused injustices to the affected families. However, we want to concentrate on the present. As the NPA we wish to apologise to the families … The NPA will do anything in its power to ensure that the truth is revealed.”