Jeremy Gordin writes on the SCA's decision to turn down Jan Rodrigues' stay application
On June 21, some three days ago, the Supreme Court of Appeal (SCA) turned down the appeal of Joao (Jan) Rodrigues against the South Gauteng High Court’s refusal to grant him a stay of prosecution .
In more accessible English: Following the October 2017 verdict of the re-opened inquest into the death of Ahmed Timol, who perished on 27 October 1971 at John Vorster Square Police Station, Rodrigues was charged in July 2018 (47 years later) with murder and defeating and/or obstructing the administration of justice.
Rodrigues thereupon applied for these charges to be set aside or cancelled. This application was refused by a full bench of the Gauteng High Court. Rodrigues then applied to the SCA to set aside the High Court decision. This, as noted, was refused some three days ago.
It’s probable that Rodrigues’ legal team will now apply to the Constitutional Court – to appeal the SCA’s judgment and thereby get a stay of prosecution (have the case dropped). If Rodrigues’ legal team opt not to do this, or if an approach to the Concourt is unsuccessful, then Rodrigues, now 82, will presumably have to stand trial for murder.
When this will be, and how long such a trial will take, one doesn’t know – especially given a number of complicating factors that will likely be raised by the defence (as trials-within-a-trial).
Politicsweb has carried at least six major articles on the death of Timol and the prosecution of Rodrigues, and it would doubtless be tedious for readers to rehash these (the links can be found below this article).
Nonetheless, the National Prosecuting Authority (NPA) vs. Rodrigues is a matter to which I believe we should pay careful attention and not put aside as just another hangover from our past.
For many South Africans, it is an important (and emotional) matter because such a trial would mark the achievement of “justice” and “closure” for the Timol family; for Imtiaz Cajee, Timol’s nephew, who has indefatigably pursued justice and closure ; and for all those who have an emotional investment in the matter.
I am uncomfortable using the phrase “emotional investment” in writing about what should strictly-speaking be issues of “law”. But it would be disingenuous to pretend such investments do not exist throughout the land .
Timol was only the third (acknowledged) Indian person to have died in highly suspicious circumstances while in the hands of the security branch (SB)  and the first to have died at John Vorster Square.
In addition, by all accounts he was a polite, quiet, and respectful person, who came from a humble family. He was someone who (leaving aside the pejorative usage of “boy”) would have been colloquially referred to by his family and community, as “a good boy” . In other words, his death was undoubtedly experienced as a huge shock by his community.
So it is not surprising that the death of Timol, and the subsequent finding by the re-opened inquest court that he was murdered and did not commit suicide, means that Timol is indeed “celebrated as a revolutionary martyr, a national hero and one of the greatest South African anti-apartheid stalwarts of his time”.
His memory is, you might say, a touchstone. Impinge on his memory – on the narrative of what was done to him, as now presented in the state’s case against Rodrigues – at your peril.
There is another extremely sensitive issue that plays a role in the NPA vs. Rodrigues. In 1996, rather than a series of Nuremberg-type trials, the Truth and Reconciliation Commission (TRC) was established. Those identified as victims of gross human rights violations were invited to give statements about their experiences – and perpetrators of violence could also testify and, provided they told the truth about their actions and their violence had been perpetrated for “political” reasons, they could request amnesty from both civil and criminal prosecution.
At the end of the “process,” in 2003, the TRC commissioners handed over to the NPA roughly 350 names  – of alleged human rights abusers who had not applied for amnesty (but should have) and whose prosecution should therefore have been followed up by the NPA.
This never happened. Why not? To the best of my knowledge – but this “information” has in any case been revealed during Rodrigues’ various court appearances – NPA prosecutors were “informally” instructed, in about 2003, to abide by an agreement obviously cobbled together by the ANC leadership and the security force generals and commanders of the previous government (or their proxies). This “agreement” was: once the TRC is over, that’s enough. No more chasing so-called human rights abuses.
The reason for this agreement was, it seems, neither a humanitarian one nor a desire to let bygones be bygones, but stemmed from the old regime’s security personnel knowing a great many of the “secrets” of those in government, including possibly that there were those in the new seats of power who had one way or another “collaborated” with the old regime – and if General X were hauled into court, he would doubtless produce some specimens of dirty ANC laundry.
Additionally, what’s good for the goose is good for the gander and if the government had proceeded to prosecute human rights abusers from the ancien regime, there were going to be those who wanted to know why the ANC’s human rights abusers weren’t being prosecuted too.
But obviously this realpolitik decision has not gone down well with former TRC commissioners and all those aghast that former perpetrators have not been prosecuted, especially families who have not seen the alleged killers of their fathers, mothers, sisters, and other relatives “brought to justice”. Cajee is one such person – who, as noted, has kept fighting to have, for example, the inquest into his uncle’s death reopened.
In other words, the death of Timol and the charges now levelled against Rodrigues are also an important “symbol” for many who want the TRC’s unfinished (or perhaps derailed) business to be completed properly .
In short, there is, to put it mildly, a great deal riding on the (successful) prosecution of Rodrigues.
Let me cut to the chase. I, for one, am as keen as the next person to see justice done.
But, having studied the “Timol case” as hard as I can, I do not think Rodrigues murdered Timol; I do not believe, as the NPA now alleges, that Rodrigues threw Timol through the window of room 1026, on the tenth floor of John Vorster Square Police Station.
It is common cause that Rodrigues was a Pretoria “admin clerk” who went to Johannesburg to deliver salary slips. But, even if these “facts” were fabricated, and if, as the state now argues, Timol was incapacitated by torture, why would those in charge of Timol’s interrogation, Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy, call in Rodrigues to throw Timol out of a window? They were quite capable of doing this themselves and had numerous “assistants” as well.
Perhaps then (it could be argued) Rodrigues was on his own guarding Timol, as he has admitted, and, for no known reason, opted to throw Timol out of the window? Not likely. Or perhaps when Timol moved to climb through the window, Rodrigues was unable to stop Timol from exiting (all of which Rodrigues has admitted). But that would not be “throwing” Timol out of the window.
The whole idea of Rodrigues as murderer is too improbable. As indeed, by the way, is Rodrigues’ evidence about how Timol came to go out the window – so improbable, however, that it seems believable, precisely because it is too byzantine for even the SB to have cooked up. They would have gone for something simpler and gotten away with it (then) anyway.
The worst, in my view, that can come out of a trial (for Rodrigues) is that he was party to a cover-up – that he was told by the Security Branch to either hold back or lie about certain of the events leading to the death of Timol. This would make him guilty of obstructing justice. But perjury is not murder .
Do I not believe then that Timol was murdered? As a senior lawyer for whom I have a great deal of respect, said to me: “C’mon, you know perfectly well what those guys used to do.”
I do know – I have read and have been told  – “what those guys used to do.” But though I might yet be proved wrong, the analysis carried out on Politicsweb  leads me to believe that the most likely explanation was that Timol’s death was induced suicide – he was driven to killing himself, in part, by his mistreatment at the hands of the Security Branch, most notably through five days of sleep deprivation.
As has been pointed out in the earlier Politicsweb articles referred to, there is a great deal about the version accepted by Judge Billy Mothle at the reopened inquest that, on careful examination, does not make particular sense.
The finding from the original autopsy report that Timol had died as the result of injuries sustained in his fall from the window remains incontrovertible; the submissions made at the reopened inquest by the “new” forensic pathologists and the evidence by a trajectory “expert” are, for various reasons, clearly questionable.
Half of the transcript from the original inquest, including exculpatory evidence, is missing. This contains testimony as to where and how the body hit the ground, critical to understanding the injuries documented in the autopsy report. There were also missing photos from the autopsy which would have disproved certain claims accepted by Judge Mothle.
And, as we know, all those named at the first inquest as Timol’s interrogators have died, taking their knowledge of what had actually happened with them to the grave, as have all the relevant forensic pathologists, including Dr Jonathan Gluckman, an independent pathologist employed by the Timol family.
Let’s return to the beginning of this article. Rodrigues applied to the high court and then the SCA on the basis that right to a fair trial had been violated, mainly for two inter-connected reasons. One was that he had been charged some 47 years after Timol’s death and is now a sickly octogenarian; the other was that the long delay in charging him was the result of malfeasance on the part of the state – clearly, the NPA had been instructed not to go after people such as him.
At the SCA, Rodrigues went, as it were, a step further. He told the court that it was obvious that he had – in terms of the “arrangement” made to lay off pre-1994 perpetrators – obviously been given amnesty, though he couldn’t present any document or other evidence to this effect. (One of the SCA judges referred to this claim by Rodrigues as “astonishing”.)
Rugby lovers will be familiar with what happens to those players who, about to receive a pass or make a catch, do not focus on the ball but instead look up to see who is about to tackle them or to where they might run or kick. Almost invariably, they drop the ball.
In my view, with respect, Rodrigues’ counsel, JG “Jaap” Cilliers SC, has done something like this. As he has Rodrigues say in his papers, there could soon well be a substantial number of further prosecutions of similar cases involving alleged offences perpetrated during the apartheid-era by police officers, who did not seek amnesty for the offences from the TRC.
Cilliers is looking to the future, in other words, and hoping to head off at the pass any similar case; he is trying to “legalise” that secret amnesty deal or, at worst, buy a few more years for it. If he’d pulled his case off, it would have benefitted many former cops and military officers who were guilty of serious crimes and might now be pursued.
But I believe, again with respect, that he has done his actual client (Rodrigues) a disservice. In my view, Rodrigues’ role was probably adjudged to be so minor, or the Timol case was adjudged to be as per the verdict of the original inquest (Timol committed suicide), that Rodrigues probably never figured on any “amnesty” list or during discussions about it anyway. It seems unlikely that the Mbeki presidency would have obstructed an investigation, in this particular case, given that Essop and Aziz Pahad were close family friends of the Timols.
In my view, Rodrigues had a hard factual case to make about why a fair trial was not possible – because exculpatory evidence that we know from press reports existed has gone missing, the original pathologists (who would have corrected the present ones) have died, as have numerous alibi witnesses, and the memories of the witnesses who are still around are by now faded and unreliable. That is the case that the Supreme Court of Appeal should have been called on to adjudicate. But, whatever the reasons, it was not.
The question now is whether - once the Constitutional Court has rejected any further appeal, as it is sure to do – a murder trial will then be held, or whether some kind of typically South African “deal” will be done to avoid it.
As a former member of the hated Security Branch Rodrigues can’t rate his chances of receiving a fair trial from the current South African judiciary. And a successful prosecution requires the NPA, now under new and more ethical management, to present to the court evidence that was accepted at the second inquest, but which it should know by now is palpably false.
 We should not forget, however, that the same person went to the Soviet Union in 1969 to study at the International Lenin School. There he was trained in Marxist-Leninist ideology, along with three fellow South Africans, one of them Thabo Mbeki, later state president. After completing his training, Timol returned to London and received additional training for four weeks from Jack Hodgson, a SACP member in exile.
 This was the number given on Tuesday night by Yasmin Sooka, former TRC commissioner, during Judge Dennis Davis’ eNCA programme, “Judge for Yourself”.
 Ironically (if that’s the word I want), one of the names always hinted at but skirted (as was done on Tuesday night by Sooka, see endnote 7 above) is Mbeki; it is strongly suggested that he “presided” over the deal not to pursue the cases of so-called human rights abuses handed over by the TRC. Yet Mbeki met Timol in Moscow (see endnote 6 above) and wrote this in the preface to Cajee’s Timol: A Quest for Justice (2005): “[The apartheid regime] performed upon his body a danse macabre of exorcism through violence. It was their own neurosis that spoke through every blow, because in him our revolutionary spirit was made flesh and they simply could not believe it. He was and remained, even after his death, the spectre that was haunting South Africa.” Surely if there had been any way of prosecuting Timol’s alleged killers – if it were not believed that Timol had committed suicide – surely Mbeki would have wanted an investigation mounted? Or do I underestimate Mbeki’s devotion to realpolitik?
 According to the NPA’s “Prosecution Policy (Final as Revised in June 2013; 27 Nov 2014),” “a more serious charge should not be proceeded with as part of a strategy to obtain a guilty plea on a less serious one”.
 Including by Eugene de Kock, though he was not a member of the SB.