COMMENT

An increasingly bizarre and sad tale

Jeremy Gordin writes on the broader context of the State versus Joao “Jan” Rodrigues

Status quo

Yesterday, Monday, 28 January, Joao “Jan” Anastacia Rodrigues appeared in the Palmridge High Court before Judge Ramarumo Monama for his bail to be extended. This was regarding the murder charge laid against him by the NPA. The provisional date for this trial has now been set for April 8.

However, running parallel with the criminal charges against him, Rodrigues has applied for a permanent stay of prosecution, based mainly on his constitutional rights being infringed. Such an application is what the lawyers call a “substantive” application and is therefore to be dealt with separately – though obviously it is integrally related to the criminal charges laid against Rodrigues. This matter has been set down for March 28 before a full bench of the Gauteng high court.

The point, though, is that if Rodrigues succeeds in his application, the State is likely to appeal, all the way up to the Constitutional Court; and if Rodrigues fails, then he is likely to do the same. In short, it looks as though it will be some time before Rodrigues’ criminal trial takes place, if at all.

Background

The 1972 inquest (“the first inquest”) into the death of Ahmed Essop Timol was formally re-opened in the High Court, withJudge SP “Billy” Mothle on the bench, on 26 June 2017. This is known as “the second inquest”. The 1972 inquest had been held following Timol’s death on 27 October 1971. The presiding magistrate, JJL (also given the initial “M”) De Villiers, assisted by Professor Simpson, a medical doctor, as assessor, found that Timol had committed suicide and no person alive [sic] was responsible for his death. The purpose of re-opening the (second) inquest in 2017 was to re-investigate the circumstances leading to Timol’s death, 46 years before.

The second inquest ended on 12 October 2017. Among his findings, Judge Mothle wrote:

“(d) Timol’s death was brought about by an act of having being [sic] pushed from the 10th 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 [Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy, both now dead] who were on duty and interrogating Timol at the time he was pushed to fall to his death. [Joao] Rodrigues, on his own version, participated in the cover-up to conceal the crime of murder as an accessary [sic] 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.”

Consequently, on 18 September 2018, Rodrigues was charged by the National Prosecuting Authority (NPA)with (i) Timol’s murder and (ii) defeating/or obstructing the administration of justice. (The latter charge has, by the way, proscribed – Rodrigues cannot now be charged with it.)

As noted, Rodrigues responded at the end of October by applying for a permanent stay of prosecution, based mainly on his constitutional rights being violated. The gist of Rodrigues’ application was that: 

“It is inherently unfair and infringes my fundamental rights to a fair trial to charge me on a count of murder after the lapse of more than 47 years and under circumstances where a High Court, after a very detailed investigation and evaluation of all the relevant evidence in this regard [the second inquest], found that I [the accused] was not involved in or even present at the time of the murder of the deceased.”

(For more detail on this application, see here).

Following this application by Rodrigues, on 19 December 2018 the family of Timol, represented by his nephew, Imtiaz Cajee, on the one hand, and the family of Hoosen Haffejee, represented by Haffejee’s sister, Sarah Lall, applied in the high court to be admitted as intervening parties in Rodrigues’ application for a permanent stay of prosecution. The Haffejee family sought to intervene based on information that activist Haffejee died in similar circumstances to Timol.

It can be inferred that this application was related to a (presumably “non-legal”a so-called obiter dictum) comment made by Judge Mothle in his findings: “The inquest also revealed that there are many more families who are seeking closure on the unanswered questions concerning the death of their relative in detention. They, like all families whose relatives died in detention, need healing. They need closure.”

Rodrigues did not oppose the application. Judge Monama, however, while he granted permission to the Timol family, denied it to the Haffejee family. Judge Monama said there was no finding at all that Rodrigues had had a hand in Haffejee’s murder. “The responsibility [for prosecutions] remains solely with the NDPP (National Director of Public Prosecutions),” the judge said in an ex tempore judgment. “We must avoid having a lynch mob; it is not necessary to call each and everybody we are dealing with [into the Rodrigues matter].”

On 8 January 2019, Cajee responded in an affidavit to Rodrigues’ application for a stay of prosecution. By way of telling his story, Cajee devoted a full section to the difficulties he encountered in getting the first inquest reopened. He testified inter alia that there had been “evidence of gross political interference in the operations of the NPA, as per the supporting affidavits of former NDPP, Adv. Vusumzi Patrick Pikoli and Anton Rossouw Ackermann SC, former Special Director of Public Prosecutions in the Office of the NDPP and former head of the PCLU [Priority Crimes Litigation Unit] explaining how the political cases from the past were deliberately suppressed.”

Cajee also “submitted” that:

“The manipulation of the criminal justice system to protect individuals from prosecution serves an ulterior and illegal purpose, constitutes bad faith, is irrational, interferes with the independence of the NPA and amounts to gross subversion of the rule of the law. Perpetrators, such as Rodrigues, have directly benefitted from such unlawfulness since the closure of the TRC.”

Cajee concluded inter alia that: “...I submit that I have demonstrated that it would not be in the interests of justice to grant the application [for stay of prosecution by Rodrigues]. My family and I seek no injustice or revenge against Rodrigues. We simply seek closure.”

On 15 January 2019, Rodrigues replied to Cajee’s affidavit, essentially stressing his constitutional rights and noting inter alia that: 

“The failure to proceed with the prosecution against me was apparently based on a deliberate decision by the relevant authorities. I submit that this is a very material fact that should be considered when evaluating the question whether the [NPA] should now be allowed to prosecute me after almost 50 years.”

Another affidavit & article

Then on 25 January 2019, Cajee put a supplementary affidavit before the court.

He told the court that subsequent to the filing of his answering affidavit, unforeseeable events had arisen that needed to be drawn to the court’s attention. Cajee repeated his earlier contention that there had been “institutional capture” [sic] and political interference at the highest level in the [NPA] with the “singular aim of enabling the perpetrators of so-called apartheid-era crimes to evade justice”.

The new “unforeseeable event” was a radio interview conducted by Joanne Joseph on Radio 702, on 16 January, with a spokesman for the NPA, Luvuyo Mfaku. Mfaku said he would “never contest” the contention that Justice Minister Brigitte Mabandla (29 April 2004 – 25 September 2008) and late former police commissioner Jackie Selebi, among others, “actively interfered in investigations which hampered them”.

On January 27, a couple of days ago, a full-page article written by Tymon Smith appeared on page 16 of the Sunday Times.  The sub-head read: “The NPA’s long delays in prosecuting the perpetrators of apartheid-era crimes have sinister implications that must be exposed for justice to prevail.”

In the article, Smith unpacked much of what Cajee had already contended, but added some potentially damning chapter and verse relating to how, for example, PCLU prosecutor Anton Ackermann’s investigation into the crimes of three former [apartheid era] policemen and two high-level superior officers was shut down with the apparent acquiescence of then NDPP, Bulelani Ngcuka. The same kind of information had also been sketched by another former NDPP, Pikoli. Pikoli, who was suspended in 2007 by then President Thabo Mbeki, wrote in an affidavit that he had “reason to believe that my decision to pursue prosecutions of apartheid-era perpetrators ... contributed to the decision of ...Mbeki to suspend me”.

Digging a little deeper perhaps

So far, so good, bravo to Cajee and Smith. But could it be that they (and others, including perhaps Pikoli, if not Ackermann) might have forgotten that the “apartheid-era perpetrators” were adjudged by the TRC to have existed on both sides, even if detailed examination of the activities of the perps on the ANC side was stymied for various reasons?

As the late DA MP Dene Smuts noted in a press statement on the 2nd June 2004 “The decision by the National Prosecuting Authority that none of the 37 ANC leaders who applied for blanket indemnification from prosecution in November 1997 will be prosecuted, leaves unresolved one of the most unsatisfactory aspects of the amnesty era. The indemnification was granted by the TRC Amnesty Committee but set aside by the Cape High Court because none of the applicants disclosed the acts or omissions they were applying for.”

As Smuts noted the ANC 37 included both then President Thabo Mbeki and Deputy President Jacob Zuma. The TRC had also found, she wrote, that certain categories of MK and ANC activities were “clear breaches of the Geneva Conventions and constituted gross human rights violation”. These included : “Attacks ostensibly on military targets but where civilians were killed and injured” and “Attacks carried out by MK on both military and civilian targets” as well as ”Attacks carried out by supporters of the ANC, including actions by UDF supporters and the SDUs.”

Fast forwarding somewhat – to the “career” of one Menzi Simelane and the trials and tribulations of Pikoli – here is another little gem from the 2008 pages of the Mail & Guardian, written by Pearlie Joubert and Adriaan Basson, assisted by Nic Dawes and Sello Alcock:

“The senior NPA advocate interviewed by the M&G said Simelane was “particularly” interested in why the NPA was pursuing the prosecution of ...Jacob Zuma; whether the NPA was planning to charge Mbeki and other senior ANC officials based on the Truth and Reconciliation Commission (TRC) refusing them amnesty ... “Simelane was clearly very upset with the position [in the NPA of advocate] Anton Ackermann and said that Vusi won’t act against him and his apartheid-era agenda. He said to me, ‘I know that you guys in the NPA are planning to prosecute the president and some other ANC members. I know that for a fact, and we’ll resist any prosecution of TRC cases.’”

In short, the ANC leadership at the time had a great deal riding on the quashing of post-TRC investigations into “apartheid-era” crimes. Not only that, but if the NPA were permitted to go ahead with investigations, the men (and women, if there were any) on “the other side”the police generals and others, would doubtless sing like proverbial canaries. And we mustn’t forget that the apartheid regime had had many spooks working in the ANC. Who wanted such stuff to emerge?

So, the whole NPA investigation into apartheid-era crimes was shut down. It’s not rocket science.

In terms of the timeline it is worth remembering that there were, in fact, numerous investigations and many successful prosecutions in the mid-1990s of apartheid-era crimes committed by members of the security forces. This then provided the primary impetus for members of the Security Police in particular to apply for amnesty, and disclose what they had done, either in an effort to get out of jail (Eugene de Kock) or to avoid imminent prosecution. These prosecutions then appear to have stalled after the ANC consolidated the various formerly independent attorneys general offices in the country into a single National Prosecution Authority and appointed an ANC MP (Ngcuka) to run it. But this is a story for another time.

What has this to do with Rodrigues?

I don’t think what I have outlined above – the ANC shut-down of the NPA regarding apartheid-era crimes – has anything to do with Rodrigues. He was small fry – and, whatever stories he might have been ordered to tell by his superiors, he patently wasn’t a central actor in Timol’s death.

But what one can be pretty sure about is that Rodrigues’ defence team (Jaap Cilliers SC and attorney Ben Minnaar) are going to make bundles and bundles of hay from Cajee’s claims about the NPA and in particular his final affidavit.

They would be remiss in their duty if they do not ask the following questions. If, as claimed, a deal was struck regarding the 37 ANC members, if the NPA investigations as regards apartheid-era crimes were shut down by the powers-that-be, where’s the documentation of that agreement? Isn’t Rodrigues covered by that agreement? (I don’t believe he is. But nonetheless.) And, if he wasn’t covered by the deal, then maybe he wasn’t prosecuted (even in the mid-1990s) because there was simply no prima facie case of wrongdoing? And so on.

In a horrible irony, it’s the admirable but hyper-active and over-talkative Cajee who seems to have handed the Rodrigues defence something of a boon.

What’s going on?

In his final affidavit, Cajee averred that there had been “institutional capture” and political interference at the highest level in the [NPA] with the “singular aim of enabling the perpetrators of so-called apartheid-era crimes to evade justice”.

He was (and is) correct. Thing is, though, it was not only the perpetrators whom Cajee had in mind who were helped to “evade justice”. The ANC leadership shut down the NPA investigations partly to protect their own.

Then for reasons that are not entirely clear (at least to me) – maybe the imminent demise of Shaun Abrahams (and even Zuma), but most probably the sheer volume of pressure exerted by Cajee, in concert with former TRC commissioner Yasmin Sooka, Frank Dutton and Howard Varney – it was decided to reopen the Timol inquest. And with it came the possibility of reopening all the other inquests of the apartheid era, in which no one was ever held to blame for anything.

But the trouble is that the main actors in Timol’s death are all dead – due to the passage of time resulting from the interference of the very people, the liberators of South Africa, who ought to have been pushing from the get-go for a reopening of the Timol inquest. The only person left to go after was an ailing, elderly, minor police clerk – Rodrigues.

And, to add insult to injury, a careful examination of what happened to Timol – see in particular the painstakingly-researched five-part series written on Politicsweb by James Myburgh in 2017, especially “Ahmed Timol and the mystery of motive (V)”) – coupled with a careful analysis of Judge Mothle’s findings, many of which are questionable, demonstrates that what happened to Timol seems by no means as clear as Cajee and others would like it to be.

It’s more than a bit sad. It’s all, alas, a typical South African travesty. In this country, the worms seem never to stop erupting from the cans. Not only do we have the Zondo Commission looking at state capture as well as various other commissions, but now it appears we might need a commission to consider political interference in the National Prosecuting Authority – with special emphasis on what was done regarding the prosecution of apartheid-era human rights abuses.

Meanwhile, what of the Timol family? And what of 79-year-old Joao Rodrigues? He might have told some appalling lies, but his situation cannot fail to remind one of Bob Dylan’s 1964 song, “Only A Pawn in Their Game”.