Waving a red herring in front of a judicial bull

Jeremy Gordin writes on Jan Rodrigues' failure to secure a stay of prosecution in the High Court

On Monday morning the South Gauteng high court turned down the application by Joao Rodrigues, 80, for a stay of prosecution for his alleged murder of SACP activist Ahmed Timol in October 1971, almost 48 years ago.

The application was refused by a full bench comprising Judges Seun Moshidi, Jody Kollapen (“Kollapen”), and Ingrid Opperman. Kollapen wrote the 45-page judgment, the other two judges concurred.

Incidentally, this does not mean that, as eNCA declared at lunchtime, “Rodrigues will soon stand trial for murdering Ahmed Timol”. Rodrigues’ legal representatives have indicated they will appeal the judgment.

Timol’s younger brother, Mohammed Timol, welcomed the ruling. According to a News24 report he said that the Timol family did not want to see Rodrigues jailed. Instead, they wanted him to disclose the truth about what had really happened. “My idea is that he still has an opportunity to make a full disclosure to the NPA of what his role was, and who the people were who were actually responsible for the murder of Ahmed. He still has the opportunity, which I think he should take because I don't think it's a nice thing to see an 80-year-old man going to jail for the rest of his life,” he added.

The judgment is available here, while below is a summary and some commentary, using the Judge’s numbering in the judgment as reference points (in brackets).

Rodrigues’ application was based on the violation of his rights in terms of Section 35 (3) (d) of the Constitution: “Every accused person has a right to a fair trial, which includes the right – (d) to have their trial begin and conclude without unreasonable delay”.

The reasons for the clearly unreasonable delay (47 years), argued Rodrigues, included among other things the “undisputed” interference by politicians in the prosecutorial process [29]. In this connection, Rodrigues also contended that it was altogether possible he had been granted an amnesty or pardon because it appeared that former President Thabo Mbeki had discreetly arranged amnesties and/or pardons “in respect of TRC cases” [71].

This situation was, however, complicated by the (now former) Minister of Justice Michael Masutha refusing, as lawyers politely say, to “take the Court into his confidence”. I.e., in an earlier (non)response regarding this matter, Masutha lay low like Brer Rabbit and said absolutely nuffin’.

The second leg of Rodrigues’ argument was that the State was prosecuting him with an “improper motive”. Examples of this would be if Rodrigues is being prosecuted for murder to force “disclosure” or because the other possible charges have long proscribed. The 2017 inquest court ruled that Rodrigues should be investigated as “an accessory after the fact to murder” and for perjury. Why then was Rodrigues being prosecuted for murder?

Kollapen responded, as can be seen in his judgment, by arguing that there had not been an “unreasonable” delay. Kollapen divided the 47 years into three periods: (a) 1971-94; (b) 1994-2002; and (c) 2003-17.

Regarding (a), wrote Kollapen, the apartheid regime was still in power and would not, for obvious reasons, have gone after Rodrigues [42-5]. Regarding (b), this was a hiatus period when society was coming to terms with a new political dispensation and the TRC “process,” so these years cannot be accounted for as a period of “delay” [46-54]. As for (c), this was the period when there was political interference that stymied TRC cases, so it also doesn’t represent a “delay” [55 et seq].

Therefore, adjudged the court, the 47 years of delay had not been devastatingly prejudicial to Rodrigues. As far as “improper motive” was concerned, Kollapen wrote that the evidence from the second inquest could possibly “sustain a charge of murder on the basis of dolus eventualis” [102]; and he quotes at length from a NDPP vs Zuma judgment: “A prosecution is not wrong merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent ...” [104]. In conclusion, he wrote, “there is, in my view, nothing to suggest that the prosecution was advanced for an improper motive” [105].

In constructing his judgment, briefly summarised above, Kollapen does make some points or mention several issues, some of which I’d like to bring to readers’ attentions.

Paragraph [12]: “[Salim] Essop testified about the torture he suffered at the hands of the Security Branch officers, such as electrocution, and thought that Timol suffered the same fate, if not worse.” [14]: “The Timol family ... obtained new evidence ... not placed before the 1972 inquest court.” [15]: “The [2017] court also heard from pathologists who concluded that the injuries suffered by Timol prior to his fall were so serious that [he] would not have been able to walk, eat, or drink unaided.”

Now, even if Kollapen had read the report of the Politicsweb investigation published last week he could not take it into account. However, it is clear from the medical evidence extracted in Ismail Essop’s 1971/1972 interdict application against the Security Police that Salim Essop’s torture did not result in physical damage of the kind it was argued that Timol must have suffered.

Similarly, the Timol family did not secure much significant new direct evidence, besides the completely unlikely evidence of the revised time of Timol’s death; it mainly had two pathologists re-hash and re-interpret the original forensic examinations, turning the original findings (including by Dr Jonathan Gluckman) on their head.

[47]: Kollapen writes that from 1994-2002, all those who had committed a crime with a political motivation could have applied for amnesty.

Indeed; but this is to assume that Rodrigues didn’t apply for amnesty because he had committed such a crime. What if he didn’t commit a crime, and therefore didn’t apply for amnesty, as per his version? What if he’s telling the truth or a version thereof?

[55]: Kollapen writes that it can be “assumed” that the Timol case was one of those that was politically interfered with to stop prosecution.

This could be a flawed assumption. On the one hand, Ahmed Timol had been very close friends with Essop and Aziz Pahad, both in Roodepoort, growing up, and later in London as young adults. Both served in Thabo Mbeki’s government: Essop Pahad as Minister in the Presidency and Aziz Pahad as Deputy Minister of Foreign Affairs. President Thabo Mbeki himself wrote the foreword to Imtiaz Cajee’s 2005 book “Timol: A Quest for Justice.” It seems a stretch to suggest that such old friends and comrades would have condoned interference in the work of the NPA to protect Ahmed Timol’s alleged murderers from investigation and prosecution.

On the other hand, in Security Police circles it seems there was never any suggestion that Timol’s death was regarded as anything but suicide. For example, the former head of the Security Police Johan van der Merwe told the Irish American academic Padraig O’Malley in a February 2000 interview that “There were cases where I think the suspicions [with regards to deaths in detention] can be regarded as founded, there were such cases. Timol, for instance, he really jumped. There is no doubt about that. Timol. He jumped himself, he was not forced out of the building.” Rodrigues himself had left the employ of the police in 1972 and pursued a career as a journalist and a writer of wildlife adventure books. It seems unlikely that the "other side" would have exerted themselves on his behalf either, especially for a crime they believed he had not committed.

[107]: Kollapen writes “This, in many respects, is a difficult case. Not necessarily on account of the legal issues it raises, but rather to the extent that it compels us to revisit our troubled past; examine what occurred there; recognise the need for reconciliation ...”

With respect, an 80-year-old human being has been charged with murder; this case is about his future life, not about a “philosophical” (re)visit to our troubled past and the need to sing Kumbaya together.

Finally, with respect to the defence team, I believe this judgment demonstrates one significant issue. It was a mistake to pursue amnesty/pardon and whether one was given by the powers-that-were. Similarly, it is a mistake to make so much of the then political interference in the NPA. Neither of these issues is integral to this particular matter. They are red herrings, given that there was never any suggestion that Rodrigues was a murder suspect before the reopening of the Timol inquest in 2017.

The kernel of the issue in the stay of prosecution matter is, or should be, whether it is possible or not for Rodrigues to have a fair trial – almost half a century after the murder was allegedly committed – as is his constitutional right.

This question should be approached based on the facts of the State’s case alone; for, to be polite, the State’s case is demonstrably iffy.