Gabriel Crouse & James Myburgh write on the 1971/2 court battle to save the young associate of Ahmed Timol
The following is the second in a series of essays on the Ahmed Timol case. The first essay can be read here.
The news that Ahmed Timol had fallen to his death from the 10th Floor of John Vorster Square and Salim Essop had been hospitalised, all within five days of their detention by the Security Police, hit the front pages of the South African press on Thursday morning 28th October 1971.
Glenn Moss, then a young student activist at Wits, had been in close contact with both the Essop and Timol families following the weekend detentions. When he heard of Timol’s death on the evening of the 27th he called the Rand Daily Mail journalist Tony Holiday, who then rushed out to Roodepoort with a photographer. The newspaperreported, in its front page lead, that Timol “fell from the Security Police room at 4pm” the day before and that Essop meanwhile had been seen “lying in the Pretoria HF Verwoerd Hospital.” Yusuf Timol, Ahmed’s father, had said that the “news had reached his wife at 6.30 pm, when three uniformed policemen visited her. She was told that her son had jumped to his death and that the police had tried to stop him from jumping.”
Over the following several months two legal battles would unfold in the courts – both closely reported on in the press - as the Timol family sought to get to the truth about the death of Ahmed, through the inquest process, and Salim’s father tried to protect him from any further abuse by the Security Police, through an interdict action. Both families were represented by the same formidable legal team of Advocates Isie Maisels QC and George Bizos JC, briefed by attorney MS Cachalia.
Due to the draconian provisions of the security legislation that prevailed at the time the one witness that could not be called in the interdict action – let alone the Timol inquest - was Salim Essop himself. He remained detained incommunicado throughout this period. Despite this constraint, and their best efforts at a cover-up, Maisels & Co. were able to take apart the Security Police version in the Supreme Court. Even more ludicrously however the evidence which they managed to uncover, all of which was now in the public domain, could not be presented to or considered by the Magistrate in the Timol inquest, which followed a couple of months afterwards.
The failure of the first inquest to deal with the evidence of Essop’s ordeal was central to the motivation by the family’s legal team for the re-opening of this inquest. In his affidavit from June this year Bizos wrote “None of the evidence in respect of Essop was allowed before the [original] Inquest into Timol’s death. This was a travesty of justice, which continues to this day. It is my firm expert legal opinion that for this reason the inquest into Timol’s death should be reopened.”
The first interdict hearing
On the morning of Wednesday 27th of October 1971 Ismail Essop was tipped off by the journalist Mike Norton of The Post that his son was lying ill in the Cassim Adam Ward at the HF Verwoerd Hospital in Pretoria. Together with his daughter Hajira and Norton he rushed to the hospital. On arriving at noon the matron denied that anyone with his son’s name was there, but he persisted. They were able to establish that the Security police were guarding a suspect in Room 8, but were unable to see who it was.
When the ward re-opened for visitors at 3pm he clambered onto a bed that had now been placed in front of the door and peered through a fanlight (the glass panel above the door). He saw his Salim lying at the far end. When he jumped down he said to Norton “There is no doubt. It is my son. I’ve never seen anyone so close to being a corpse.” Essop rushed off to contact his attorney, Said Cachalia, and seek assistance. With the news of Ahmed Timol’s death arriving that evening this matter acquired an even greater urgency. Cachalia then contacted Bizos who brought in Maisels.
Maisels and Bizos now brought an urgent application in the Supreme Court in Pretoria, where they knew Judge Cecil Margo would hear the matter, seeking to restrain the “Security Police from assaulting, interrogating in any manner other than that prescribed by the law, or from exerting any undue pressure on Mr [Salim] Essop”. The application with supporting affidavits was filed on the late afternoon of the 28th October.
The front page of the Rand Daily Mail, 28th October 1971
In his founding affidavit Ismail Essop said that when he looked through the fanlight the day before “I saw my son lying naked on the far bed in the room. He looked terribly ill, he was hardly breathing and there were bruises and blood clots on his chest and he had a bandage on his stomach just below the naval.”
In a supplementary affidavit, filed the morning before the hearing, Ismail Essop added that he had received information from persons employed at HF Verwoerd, whose names were unknown to him, that his son “has a serious head injury” and a “serious injury to his chest” and “from time to time he was unconscious whilst in bed and from time to time he was in great pain and screamed because of it.”
The application was set down for hearing on the morning of the 29th. The replying affidavits of the police were drawn up late that night and in the early hours of the next morning. In his short replying affidavit Colonel Greyling, the commander of the Security Police at John Vorster Square, denied that Essop had been assaulted in any way during his detention, and said that he had regularly checked up on him, and never received any complaints. On the Tuesday morning he had established that Essop was unwell. He arranged for Essop to be medically examined and as a result Professor Hieronymous Van Praag Koch, the chief district surgeon of Pretoria, had seen him.
In his affidavit Koch said that he been asked by a Colonel Van Niekerk to examine the detainee. On the same day he proceeded to the General Hospital in Johannesburg where he had done so, finding Essop in a stupourous and sick state. While there he heard that the neurosurgeon Dr CW Law had already seen Essop and had diagnosed a condition of hysteria. This diagnosis seemed plausible to him. He had thoroughly examined Essop and noticed no bruises or blood clots on his chest, and no injuries or bandages on his stomach. There were superficial scratches on the chest however. These could have been caused by a person’s nails. It was possible that a person in a state of hysteria could have scratched himself. He had then arranged the transfer of Essop to HF Verwoerd Hospital in Pretoria, where he had been seen by a Dr Combrink and a specialist neurologist Dr Güldenpfennig.
Dr Güldenpfennig also submitted an affidavit saying that Essop’s condition was one of hysteria or simulation. Essop had on occasion cried out, but as a result of this condition not pain. He also denied that there were any bruises or blood clots on Essop’s chest, saying there were just a few superficial scratches.
Justice Margo granted the temporary interdict, without making a finding on the merits. He ordered that the Matron of the Cassim Adam Ward be ordered to appear on the return day of 8th December to testify, and granted leave for both parties to call further evidence. In the interim Ismail Ayob, then an articled clerk working for Cachalia, set about tracking down every doctor or nurse who may have seen Essop. He found that they had all been warned off talking about the matter or deposing affidavits. On 8th of December an order was granted extending the return day to 22nd of February 1972 so that subpoenas could be issued by Essop’s lawyers to all the nurses and doctors who had seen Essop requiring them to come and testify.
The final interdict hearing
The case returned to court before Justice Marais and Justice Theron in late February 1972 for a final order. It emerged from the testimony of Dr CW Law on the 22nd February 1972 that Dr Vernon Kemp, Chief District Surgeon of Johannesburg, had been the first to see Essop - a fact that had been omitted in Greyling’s original affidavit, and kept from the family’s lawyers up until that moment. Kemp was immediately subpoenaed by telephone to appear in court and an affidavit he had drawn up on 3rd November 1971 was also submitted as evidence. In his 1998 book No one to blame Bizos describes Law as having the reputation for being an “honourable man” and Kemp as “honest.” Both men in other words could be relied upon to tell the truth under oath and in the witness box.
Kemp told the court that he had been summoned by Colonel Greyling to John Vorster Square at 8.45am on the morning of 26th October. He had briefly examined Essop whom he found in a semi-comatose state, noticed bruising around the face, and arranged for him to be taken by stretcher to hospital and examined by Dr Law. Kemp’s evidence – which Bizos noted in his book was “not challenged on any of the material aspects” – exposed Greyling and Koch as having lied by commission and omission about Essop’s injuries.
The argument in court now turned to whether the bruises around Essop’s head and body had been incurred through an assault at the hands of the police or whether they hypothetically could have been sustained through a fall, or self-inflicted. After a lot of back and forth on this matter between Adv Frikkie Eloff for the police, Kemp and Maisels, Maisels put it to Kemp: “Now what would you say is more probable, Doctor, that these bruises of which I have spoken which you found,” were caused as a result of falling, as had been suggested by counsel for the police, “or as a result of an assault?” Kemp replied: “I think it is more probable on the basis, on the pure basis of probability, that it was an assault.”
The Security Police were now belatedly forced to contrive an explanation for the injuries that they had originally pretended did not exist. In his testimony to the court Major J H Fourie said that he had intermittently interrogated Essop from 2pm on Saturday the 23rd October to 7 am the following day. He denied that Essop had been assaulted - claiming instead that he had collapsed from a standing position during interrogation and hit a safe and a fan while falling.
In their judgment handed down on the 25th February 1972 Justices Theron and Marais were having none of this. They were highly critical of the failure by the state to disclose that Dr Kemp had originally examined Essop; were excoriating of Greyling’s original affidavit and his testimony before them; and critical too of Dr Koch’s and Dr Güldenpfennig’s failure to mention, in their original affidavits, the evidence of bruising on Essop’s face, consistent as it was with an assault having occurred. (Due to some confusing phrasing in the judgment Adv. Howard Varney misconstrues, in his main heads of argument, the judges’ criticism of these two as criticism of Kemp, and this error is then carried over into Justice Mothle’s judgment.) Noting the totality of the evidence by “eminent medical men” they also dismissed the claim of simulation deposed to by the police psychiatrist Dr Van Wyk. Justices Theron and Marais then ruled:
“Taking the history of his condition as deposed to by the medical witnesses, substantially supported by the evidence of the various nursing sisters who saw him on the 26th so ill as to require nasal feeding, we cannot but conclude that on the balance of probability the detainee suffered from the illness termed hysteria, and that this was induced by an assault him while in the custody of the first respondent [the police]. Consequently, in our view, therefore, the provisional order should be confirmed.”
They ordered that the police pay the costs of the application and also ordered that interdict be served by the sheriff of the court on Salim Essop personally.
Salim Essop’s ordeal
At the time of his arrest Essop was a 22-year-old third year medical student at Wits. He was not a Communist, or a believer in Marxism-Leninism, and his involvement with Timol and his underground work largely involved such mundane and innocuous tasks as procuring photographic equipment, posting envelopes and storing address lists. At the moment that the car was stopped he was also unaware of the correspondence and propaganda leaflets in the boot.
The Security Police were likely convinced, by evidence contained in the aforementioned, that he was a comrade and deployed against him the interrogation and torture techniques that had been designed, and successfully used in the past, to break the resistance of the most hardened and committed Communist revolutionaries. During the 80 or so hours between his detention and final collapse then he was trapped in a nightmare from which there was no escape. Any denials of deep underground involvement, though perfectly truthful, would have been disbelieved – perhaps even taken as further proof that he was a ‘hard nut’ - and they would have attracted further torture in an effort to finally ‘crack’ him.
In his affidavit submitted to the current inquest he describes being assaulted three times immediately after his arrest. The first time was at Newland police station by Security Police officers, including Major Fourie, who wanted to know where they were going. He was again assaulted following his arrival in Colonel Greyling’s office at John Vorster Square by Sgt. Kleyn of the uniformed branch; and then again by a Security Police officer some hours later. In this last case he says he was slapped so hard that he temporarily lost sight in one eye.
Over the following three days in detention he was subjected to long periods of interrogation in stress positions, sleep deprivation, electric shock treatment, suffocation, further beatings, humiliating and degrading treatment, and threats to drop him down a stairwell. The seven page statement he wrote at some point bought him some respite, but this was disbelieved and the whole ordeal started up again. He was also deprived of food and drink for a long period and when he was eventually offered a meal of badly cooked jail food he only ate part of it.
As noted in the previous essay ‘standing torture’ and sleep deprivation were so-called ‘no touch’ methods designed to break down the individual psychologically by using the victim’s own body to torture itself. Electrocution and suffocation also left no marks. Essop also describes being slapped around the head and face and punched in the stomach, both forms of assault designed to minimise bruising and the risk of fractures.
In Essop’s affidavit he is very critical of Dr Kemp for noting “that I was ‘lying comatose in a passageway at John Vorster Square.’” This was a lie, he said, as he clearly remembered that Kemp had actually examined him in the vault. “I have little doubt that Dr Kemp was assisting the police to cover up the location and existence of one of their torture chambers.” However, the court transcript of Kemp’s testimony on being questioned by Maisels in late February 1972, reads as follows:
“And where was this man Essop, was he in John Vorster Square – Yes.
Was he in bed or was he walking about or…? - He was in an interrogation room in the Security Police Division of John Vorster Square.
Was he ambulant or was he lying in bed or where was he? – When I saw him he was sitting against a wall on the floor of this interrogation room.”(Our emphasis.)
It appears that Essop’s account of Kemp’s testimony is based on the account in Bizos’ book. This quotes Kemp as saying that Essop “was lying comatose in a passage at John Vorster Square.” Though Bizos wrote positively of Kemp he was quoting him from memory and thus misremembered the precise details of the exchange.
Kemp examined Essop briefly at John Vorster Square and told the police that he needed to get him to hospital as quickly as possible. Essop was then taken by stretcher to the Moslem ward of the Non-European Hospital (NEH) in Johannesburg. Kemp had also personally called in Dr Law and the two had together examined Essop at around 11.30am that morning. They were unable to take a history as Essop was not speaking. Dr Law conducted a careful neurological examination to look for any sign that his condition was the result of an internal brain injury (such as a haemorrhage). Essop’s responses to these tests seemed to be mostly normal however. X-rays were also taken of his head and chest at around 12am and these were negative (no fractures were detected.)
In his letter to Dr Kemp on the 26th October, dictated that lunchtime and setting out the results of the examination, Law noted that Essop’s “temperature was normal, the pulse 96 and regular, blood pressure 130/80. Respiration was variable and there was no evidence of cyanosis.” He also documented the following external injuries: “He had bruises below the right eye, in the pinna of the right ear. Scratches were present over the chest. Further bruising was present over the ulnar aspect of the right forearm and below both knees. There was a further bruising over the medial aspect of the left upper arm.”
Kemp himself noted the following injuries during their examination of Essop:
“1. Two small areas of bruising of the right forearm.
2. Areas of bruising, which showed yellow colour change, below both knees.
3. 2cm bruise just below the right eye.
4. 2 ½ cm bruise of the lobe of the right ear.
5. 2 cm bruise of the right lower lip.
6. 3,5 cm bruise, showing yellow colour change, of the inner aspect of the left arm, just below the axilla.
7. There were superficial scratch marks on both anterior chest walls.”
In his testimony Law said that he not made the diagnosis of hysteria, as Koch had originally claimed he had, but that this could not be excluded. He had suggested that a psychiatrist be called in as he did not think that a head injury was responsible for Essop’s condition.
For Law Essop appeared to be dehydrated and possibly in a hypoglycemic state – he was ‘starving’ he told the court – and this may have been contributing to his condition. The Security Police had told him that Essop had been fasting due to Ramadan. When asked by Dr Koch over the telephone whether Essop could be transported to Pretoria he said yes. In his letter to Kemp he said “I felt this would be advisable as it is obvious he is going to require skilled nursing care, in the form of either feeding per nasal tube, or intravenously.” This was because the nurses were unable to get Essop to eat or drink.
At the Hendrik Verwoerd Hospital Essop was cared for from late afternoon Tuesday to Thursday mainly by Sisters Napo and Khumalo. Sister Napo admitted under cross-examination by Maisels that the Security Police had told her to lie to Ismail Essop about his son’s presence in the ward. Sister Khumalo had been the night nurse and had come on duty at 7pm on the 26th of October. She testified that at around 9pm she fed him by nasal tube, as instructed by Dr Combrink, which she had inserted. She had then fed him every two hours using this method until 6am when Essop himself had removed the tube. After that she and Sister Napo were able to feed him by hand. Sister Khumalo said that Essop, who had spent most of the time sleeping, had said nothing the first night, and on the second all he had said was “Mama, water.”
Due then to the efforts of Maisels, Bizos and Ismail Ayob in ensuring all the doctors and nurses who had treated and examined Essop after his period in detention in John Vorster Square were found and called to give evidence in court in February 1972 it was fairly reliably established what his condition was, both physically and mentally. On his arrival at the NEH – after his three-and-a-half days in the hands of the Security Police - he was a “very ill man”, as one of the nurses put it in her testimony. He was semi-conscious, screaming and groaning from time-to-time, suffering from the effects of prolonged sleep deprivation, ‘starving’, dehydrated, incontinent and unable to eat, speak or drink.
Dr Kemp was concerned at the possibility that Essop’s state was due to a brain injury, which is why he called in Dr Law. The result of the examination and the tests (including X-rays) that were conducted were negative however. “All the [physical] injuries which were noted” Kemp wrote in his affidavit on 3rd November 1971 “were of a minor nature and did not require any treatment.” This was Dr Law’s assessment as well.
With an organic cause excluded Kemp diagnosed Essop as being in a state of “severe hysteria”, or what is known today (given the pejorative connotations attached to that word) as conversion disorder. Thus Essop was found to be suffering from a severe psychiatric illness one that could be brought on, as Kemp noted in his testimony, either by violence or the threat of violence.
Adv. Maisels requested the court to take the rare step of expressing their disapproval of Colonel Greyling’s conduct by awarding a punitive costs order against the state, to be paid on the attorney and client scale. Justices Marais and Theron turned this down as, they noted, Mr Ismail Essop’s conduct was not completely blameless either, making all due allowance for his anxiety in regards to his son. Given the combined evidence of all the doctors and nursing sisters who had treated Salim Essop it was clear that the father had, in his founding affidavit, given an “exaggerated description of the injuries of his son and certainly, when analysed, a description which cannot be true on any basis.”
The current inquest
The exclusion of the evidence from the Essop interdict hearing from the original Timol inquest was, as Bizos noted, one of its most obvious flaws. However, it is not unproblematic for the re-opened inquest either. In his final heads of argument to the 2017 inquest Adv. Howard Varney states that Essop was subjected to “some of the most barbaric forms of torture ever recounted in a South African court” and this “torture was vicious, sadistic and unrelenting.” By the Tuesday morning Essop was in a “comatose state and close to death” and had to be rushed to hospital. As an indication of Essop’s physical condition Varney quotes Justices Theron and Marais’ comment that Essop was “so ill as to require nasal feeding.”
Adv. Tori Pretorius for the NPA echoes this point in his final heads, stating that as a “result of the continued and prolonged assault” on Dr Essop “he was admitted to General Hospital and then Hendrik Verwoerd Hospital, near death and in a coma.” The NPA also say that he had extensive physical injuries. This was accepted by Justice Mothle who finds in his judgment that at the time of his hospitalisation Essop was “comatose” and had “severe injuries and was in a critical condition.” He also states that had the evidence from the interdict hearing been in front of him the Magistrate in the first inquest “would have also found that two Supreme Court Justices accepted on evidence that Essop was brutally assaulted during interrogation to a point where he became comatose, the day before Timol’s death.”
While it is certainly accurate to say that Salim Essop’s unrelenting torture by the Security Police, over the three-and-a-half days he was in their hands, had resulted in his collapse and hospitalisation in a severely ill state, no evidence was ever presented at the interdict hearing suggesting that he was in “a coma” or “near death”. The claim that he had severe physical injuries was also disproved through the course of the hearing. Neither Varney, Pretorius nor Judge Mothle deal with the fact, established by the Supreme Court in 1972, that Essop’s illness was a psychiatric one, clearly precipitated by severe ill-treatment.
The mistaken traditional association of conversion disorder with women is just one of many indications of social stigma that shroud psychiatric illness, sometimes with silence. This was the true horror of the Security Police’s interrogation methods. They sought to break down detainees completely while leaving few (if any) permanent physical traces of their work, and relying on the stigmatization of mental vulnerability to assist in their cover-ups. The effects of their methods were often emotionally shattering, with ex-detainees sometimes “showing the symptoms of post-traumatic stress for years after their release.”
Click here to read the third installment in the series on the Ahmed Timol case.
 Glenn Moss, The New Radicals: A generational memoir of the 1970s, (Jacana: Johannesburg, 2016). In a strange twist to the tale Holiday was also an underground SACP operative. He was arrested and tried in 1976.
 In the Afrikaans: "Op Dinsdag, 26 Oktober 1971, het ek vasgestel dat Essop ongesteld was. Ek het gelas dat hy geneeskundig ondersoek word en in die resultaat hat Professor Koch vir Essop to sien gekry."
 Salim Essop affidavit, 14 October 2016 pg. 23. He also accused Dr Kemp of lying under oath and breaking his Hippocratic oath “in his affidavit, which was presented at the court case my father brought against the police on Thursday, October 28… by suggesting that the marks on my body were self-inflicted while I was in a condition of hysteria.” Here Essop appears to be attributing Dr Koch’s affidavit of the 28th October 1971 to Dr Kemp. Neither of Dr Kemp’s two later affidavits make the claim.