The kicking circle

Jeremy Gordin writes on the State and Human Rights Establishment vs Jan Rodrigues

This morning, Thursday, March 28, Joao “Jan” Rodrigues, 79, is set to appear in Johannesburg before a full bench of the Gauteng high court – Judges Seun Moshidi, Jody Kollapen, and Ingrid Opperman – to apply for a permanent stay of prosecution for his alleged murder of activist Ahmed Timol in October 1971, 47 years ago.

Recently filed in this matter was a supplementary affidavit from the second respondent, the Minister of Justice and Correctional Services. It seems a remarkable document. Only a total of four double-spaced pages long – which, if one has had any experience with legal documents, is itself remarkable – our Justice Minister, Tshililo Michael Masutha, states as follows under oath.

He has read the [fourth respondent] Imtiaz Cajee’s affidavit and annexures – the one detailing chapter and verse “pertaining to political interference with decisions to prosecute [apartheid-era crimes],” in particular examples of correspondence between a “previous incumbent” of the office of Minister of Justice, Brigitte Mabandla, and Vusi Pikoli, an erstwhile National Director of Public Prosecutions (NDPP).

However, continues the Minister, he was not “privy” to what happened nor can he assist the court with any “clarification” about “the policies and decisions of a previous administration”. That’s it. End of story.

Whassamatter, dude? Has the ministry lost all its files? Did Jacob Zuma slip the keys of the filing cabinets into his pocket as he left?

Surely the learned minister knows that it is his office – the office of the Minister of Justice – that has been enjoined in this matter; it’s irrelevant whether an individual called Masutha was or wasn’t around at the time.

Like Manuel in Fawlty Towers, Masutha’s response is: “Who? Moi? Me, I know nuffin’.”

To change the analogy: while standing on his own try-line, Masutha has kicked for touch. Questions are: Is it a kick that has skewed embarrassingly off his boot and gone one metre only? Or is it a long and skillful touch-finder?

Prima facie – based on a first impression – Masutha’s (in fact contemptuous) response looks bad for both those pursuing the prosecution of Rodrigues and for Rodrigues.

There are three apparently disparate yet interlocking groups who want Rodrigues prosecuted. They are the National Prosecuting Authority (NPA) or the State; the Timol family, represented by Imtiaz Cajee; and a group of human rights campaigners or activists, consisting of (i) six ex-Truth Commission (TRC) commissioners, Yasmin Sooka, Dumisa Ntsebeza, Mary Burton, Wendy Orr, Glenda Wildschut and Fazel Randera, represented by Sooka, (ii) the South African Litigation Centre (SALC), and (iii) the Law Society of South Africa (LSSA). The “human rights” grouping has inserted itself into the matter as amici curiae, “friends of the court”, though they don’t seem to be friends to Rodrigues.

It is mainly the Timol family and the human rights campaigners who have shouted loudest about the (alleged) previous shutdown of NPA prosecutions of so-called apartheid-era crimes. (But let’s not forget that those presently at the NPA who are pursuing Rodrigues are presumably not unhappy about this noise; they just can’t say so publicly.)

The reason for the hubbub about the interference at the NPA is that part of Rodrigues’ application for a stay of prosecution is based on the argument that coming at him after 47 years is a derogation of his constitutional rights.

Let’s also not forget that there is a reason that crimes prescribe after a period. At the reopened inquest, for example, Judge Mothle found that Timol had died in the morning, not the afternoon, as was previously accepted and as had been reported at the time by newspapers such as the Rand Daily Mail.

Forty-seven years after the fact it is not possible for Rodrigues to establish an alibi for the morning (something which would have been easy at the time). Also, many pages of transcripts of evidence presented to the first inquest, which we know from press reports are exculpatory, are missing from what remains of the original inquest file. Most witnesses are deceased. In short, the ability for Rodrigues to mount a defence has been seriously eroded over time.

But if – argue those pursuing him – it can be shown that there were cogent reasons for the delay, then surely Rodrigues’ argument is nullified.

As far as Rodrigues is concerned, Masutha’s response (“I have nothing to say”) is problematic because presumably his defence team is planning to argue that previous political and NPA leaders of the country not only de facto issued an amnesty to all those who had not yet been prosecuted for apartheid-era crimes, by which Rodrigues must have been covered, but that the subsequent behaviour of the NPA demonstrated that this was so – therefore, the NPA cannot now come after Rodrigues.

So: a good kick or a bad one? My reading is that Masutha’s kick is bad for Rodrigues. It seems Masutha has consciously shut down the whole debate about NPA and government malfeasance and the issue of “amnesties” – while knowing perfectly well that the issue will in any case be argued by Cajee et al, who are not interested in whether an amnesty was granted but merely want to demonstrate cogent reasons for the long delay in prosecution.

To put it another way: Cajee et al will argue that high-level interference at the NPA was an appropriate reason for the delay in prosecuting Rodrigues – and he has affidavits from Pikoli and others attesting to unwarranted interference; the state will say nothing but it doesn’t have to do so (Cajee et al will do so); and when Rodrigues argues that he falls under a de facto amnesty issued in the days of Mbeki, the question will be: Where’s your proof? The Minister of Justice says he knows nothing about these matters.

In short, Masutha has thrown in his lot with those wanting to prosecute Rodrigues – doing so by an act of omission rather than commission. It’s shrewd. Whether it is “just” – and befitting behaviour for a Minister of Justice – is another matter.

My personal hope is that Rodrigues’ defence will stay away from the debate about what happened at the NPA and about amnesties. For one thing, once the defence argues that Rodrigues was, or would have been, covered by an amnesty, then an obvious response is that he must have been guilty of something. 

After studying and thinking about this matter for many months, my approach would be to argue this case simply and plainly, along the following lines.

The issue of amnesty and the stuff that went on at the NPA is not even relevant to Rodrigues. He was palpably “small fry” – the wrong man in the wrong place at the wrong time. We are not dealing here with Eugene de Kock.

Rodrigues was never previously prosecuted, not because of high-level carryings-on but because there was no prima facie case against him. That’s why there was no huge effort to bring him before the TRC. And he never went to the TRC because it did not occur to him that he had something to apply for amnesty there.

And there still is not a case against Rodrigues. Having studied the evidence of both the first and reopened inquests (and George Bizos SC’s No One to Blame, 1998), as well as several painstaking analyses by James Myburgh (see here), I cannot avoid seeing palpably weak findings in many instances, especially the forensic evidence on which the state case is based.[1]

I do not doubt for a moment that the Security Branch was responsible for Timol’s death. The issue, however, is whether Timol was murdered in the manner found on October 12, 2017 by Judge Billy Mothle at the reopened inquest. The judge said that Timol’s death “was brought about by an act of having been pushed from the 10th floor or roof of (then) John Vorster Square to fall to the ground” and that there exists prima facie evidence implicating Timol’s two interrogators, Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy (both dead), for being responsible for this. 

Or: is there not a strong possibility that Timol’s death was the result of what can be termed “induced suicide”? It seems quite possible that Timol was “driven” to propel himself out of the 10th floor window of JV Square as a result of appalling torture, including notably five days of sleep deprivation [2], coupled with anxiety and shame stemming from his belief that he was responsible for having “destroyed” his underground network and having also put many innocent people from his own community in very serious harm’s way.

What is suggested by this possibility is that perhaps Rodrigues may have indeed told the “truth” about whether he saw Timol dive through the window. 

It also seems to me that the following question was not examined fully enough at the reopened inquest: Why would Van Niekerk and Gloy and/or other/s murder Timol – given what they had achieved (in their view) from having caught and interrogated him?

The response to this – and it was an element of the Timol family case at the reopened inquest – is that something similar to that which happened at Steve Biko’s interrogation took place: the interrogation went too far and, though this was not the police intention, Timol was seriously injured, then murdered – and then a cover-up (using Rodrigues) was constructed. Here, however, one cannot help reflecting that using someone from outside John Vorster Square – Rodrigues, an admin clerk delivering cheques or salary slips – to construct an apparently bizarre and far-fetched story, seems too elaborate, even for the master-minds in the SB. 

At any rate, whichever way one cuts this, it seems clear that Rodrigues was not guilty of murder – though, depending on which version one accepts, he might have fabricated certain events.

But I suspect that Jaap Cilliers SC, given his experience in this field, is expecting that after Rodrigues there will be a flood of so-called apartheid-era prosecutions; and so Cilliers might therefore be quite seized with the issue of whether there was a “global amnesty” issued then. 

For it has become clear that the state, as well as other parties involved, are intent on making a “test case” out of Rodrigues, for reasons that are clear. The reopened inquest into the death of Timol has become a cause célèbre. As the introduction to the Timol family’s final heads of argument at the reopened inquest note: “Ahmed Timol would pay the ultimate price for standing up to Apartheid. In so doing he joined the illustrious ranks of Steve Biko, Griffiths and Victoria Mxenge, Neil Aggett, Babla Saloojee, Fabian and Florence Ribeiro and others. These names will be forever remembered and cherished by South Africans. ...The Timol story is also a story ... of unbridled brutality meted out to young men and women held on the 10th floor of John Vorster Square” (see here).

In other words, the murder of Timol means, or is supposed to mean, much more to South Africans than just some horror from the past. It is the story of one of our heroes in the struggle for freedom; it is part of our legacy (that much over-used word) – and this is deeply important especially at a time when the Rainbow Nation seems to be losing confidence. We need to cherish the pursuit of justice regarding Timol.

The NPA wants to bounce back and rip the badges of shame off its collective jacket. The human rights folk, who have been badly treated, even shamed, by events at the NPA, are also extremely angry. They too need an example, a test case.

What about Cajee? What he has done over the years is remarkable, unquestionably. As the Timol family’s final heads also note: “The Timol story is also a story of great inspiration and perseverance. The Timol family, in particular, Ahmed Timol’s nephew and brother, Imtiaz Cajee and Mohammad Timol, refused to let go of their quest for truth and justice.”  Above all, Cajee has sought vindication – inter alia proof that his uncle would never commit suicide [3].

Why then – following the reopened inquest, at which it was adjudged that Timol was murdered – did Cajee not leave off his quest? Cajee has stated in an affidavit that neither he nor his family is vengeful [4]; and he must know that going after Rodrigues will not bring back Ahmed Timol. There must surely be an unfathomable frustration and anger engendered by having to deal with someone who absolutely refuses to tell you what you think is the “truth” – so it’s is not surprising that Cajee too has been caught up in the need to make a test case out of Rodrigues.

Finally, though, why is one left with a distinct picture in one’s mind of a bunch of bullies standing in a circle and kicking someone on the ground? Many people, it seems, have a vested and visceral interest in the successful prosecution of Rodrigues, even though the real culprits are dead. Their interest is not far from the kind of cold intent and frenzy one finds in a bully circle. They want payback. Is this why these people, especially the human rights activists, are ganging up on Rodrigues? What is propelling the state to proceed with what seems to be at best a shaky case, at worst a male fide (bad faith) one?

I say again: anyone who has examined this case closely knows that many of the “facts” on which Judge Mothle reached his conclusions are of doubtful validity. They clearly served their purpose in the inquest, but are now being used in the deadly serious matter of a murder prosecution. Is pushing for a trial, on this flawed basis, honourable behaviour? Is this not, rather, about recovering a sense of self-righteousness, after all these years of failure by the “party” that Timol died for? About re-imagining themselves in the role of the heroic stalwarts of the anti-apartheid struggle? And all this is to be achieved by booting a 79-year-old former police clerk, who was in the wrong place at the wrong time, as mercilessly as possible.


[1] Briefly, what was questionable at the reopened inquest was the lack of thorough cross-examination of the Timol family’s case regarding a number of issues subsequently accepted by the inquest court, especially the re-visited forensic evidence, on which the Timol family’s based its new version (i.e., Timol had been so badly tortured that he would have been unable to propel himself out of the window); the “new” time for Timol’s death; and other issues besides.

[2] Which is often “undervalued” as a torture technique, producing serious discombobulation and even hallucinations, yet was not dealt with in detail at the reopened inquest.

[3] In Islam, suicide is anathema, although there are of course exceptions to the prohibition. Certain militant groups (and those supporting them) who carry out “martyrdom operations” believe their actions fulfil the obligation of jihad (although in the Quran there is no mention of suicide being an act of jihad) and some clerics support this view under certain circumstances.

[4] I’d be remiss if I failed to remark on the sudden appearance in November of a rash of stories about Rodrigues’ daughter, Tilana, who said she had been “sexually abused” by her father. One doesn’t know who arranged the various appearances in newspapers and on the radio but (knowing journalists and newsrooms as I do) they were certainly “professionally” and energetically organised by a person outside the media houses. In one story, Tilana is credited by Cajee as having helped him locate Rodrigues at some stage. Then, perhaps after someone realised that even if Rodrigues was abusive to his daughter this does not make him a murderer, Tilana suddenly disappeared off the air waves.