20 July 2021 by , and Dispute Resolution Alert

Justice delayed: A stain on the rainbow

Ahmed Timol was murdered by the police on 27 October 1971. He was 29 years old.

Salem Essop was arrested with Timol on 22 October 1971 and interrogated by Security Branch policemen on the tenth floor of John Vorster Square in Johannesburg. Initially, Essop was repeatedly punched and slapped, but then alternating pairs of policemen suffocated him with a plastic bag, applied electric shocks to his tongue and legs, deprived him of sleep and forced him to sit in an imaginary chair or squat for long periods, giving mule kicks to his legs if he couldn’t hold the position. If he fell unconscious, they revived him by urinating on him or throwing water over him. He was also held by his ankles 10 stories up, dangling in the void of a spiral staircase.

Essop saw Ahmed Timol one last time. He was being dragged by policemen with a hood over his head.

Two days later, Timol was pushed out of a window on the tenth floor – or off the roof – of John Vorster Square.

This evidence was given at the 2017 inquest in the Pretoria High Court which found that Ahmed Timol was murdered after having been tortured and brutalised by Security Branch police. This finding was in stark contrast to the 1972 inquest, which found that Timol’s was a “death by suicide”. In the 2017 inquest, High Court found that:

“Timol’s death was brought about by an act of having been pushed from the tenth floor or roof of the John Vorster Square building to fall to the ground, such act having been committed through dolus eventualis as the form of intent and prima facie amounting to murder. There is prima facie evidence implicating Gloy and Van Niekerk who were on duty and interrogating Timol at the time he was pushed to fall to his death. Rodrigues, on his own version, participated in the cover up to conceal the crime of murder as an accessary after the fact, and went on to commit perjury by presenting contradictory evidence before the 1972 and 2017 inquests. He should accordingly be investigated with a view to his prosecution.”

Rodrigues is former Security Branch police sergeant Joao Rodrigues, the star witness in the 1972 inquest who was then arrested on 30 July 2018, some 47 years after Timol’s death and charged with murder. He applied to the High Court in Johannesburg for a permanent stay of the charges saying that the 47 year delay violated not only his constitutional right to a fair trial but more specifically his right to adduce evidence and to challenge the state’s evidence. He was unsuccessful.

He appealed. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions and Others ZASCA 87 (21 June 2021) analysed the delay by dividing the 47-year period into three chunks. The court excluded first the period until the end of apartheid as Rodrigues was shielded from prosecution by the finding of the 1972 inquest. Second was 1994 to 2002 when the Truth and Reconciliation Commission (TRC) was considering applications for amnesty from confessed perpetrators of apartheid-era political crimes. Rodrigues did not apply for amnesty and, as the court noted, “those who did not apply for amnesty accepted the risk of future criminal prosecution”. The court said that “to the extent that it [the TRC period] constituted a delay, [it] was a delay of the kind that was regarded as necessary and important to allow a new society to come to terms with its past”.

Then, in the third period from 2003 to 2017, the executive branch of government adopted a policy that apartheid-era crimes ventilated during the TRC process would not be prosecuted. The court described it as “perplexing and inexplicable why such a stance was taken both in the light of the work and report of the TRC advocating a bold prosecutions policy, the guarantee of the prosecutorial independence of the NPA, its constitutional obligation to prosecute crimes and the interests of the victims and survivors of those crimes”.

On that analysis the court dismissed Rodrigues’ appeal, finding that he hadn’t shown any violation of his rights and noting that “the Timol family have also been victims of this delay; they have waged what can only be described as a heroic struggle with dogged determination to bring the alleged perpetrators of these crimes to trial. The public interest demands that their efforts are not in vain.

Writing almost 1800 years ago, the Roman jurist Domitus Ulpian said that “Justice is the constant and perpetual will to allot to every man his due.” In the 19 years since the TRC completed its work, nothing has happened in more than 50 cases where terrible crimes were confessed but amnesty was denied. Twenty-seven years into our constitutional democracy there has been no justice for Ahmed Timol, no sign for him and many others of that constant and perpetual will described by Ulpian.

A few days after the decision of the Supreme Court of Appeal, the National Director of Public Prosecutions and the Hawks announced the establishment of a specialised unit to investigate and prosecute these apartheid crimes.

Do the families of the victims dare hope that justice will eventually be their due?

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