Seven months after the Supreme Court of Appeal heard arguments from former apartheid security police officer João Rodrigues against his prosecution for the 1971 murder of activist and teacher Ahmed Timol, it finally handed down its decision on Monday 21 June.
The outcome of Rodrigues’ appeal against a 2019 ruling by the high court in Johannesburg dismissing his application for a permanent stay of prosecution has been keenly awaited, both by families of victims of apartheid still seeking justice and by perpetrators awaiting trial in other cases related to the Truth and Reconciliation Commission (TRC).
While the appeal court, in a majority decision penned by Judge Aubrey Ledwaba, granted Rodrigues the right to appeal the high court’s decision, it dismissed his appeal for a stay of prosecution.
Rodrigues had argued that the 47-year period between Timol’s death and the charges brought against him by the National Prosecuting Authority (NPA) would prejudice his right to a fair trial, as so much time has passed that the octogenarian cannot recall the details of the events.
He made a cynical argument that the now well-documented political interference by members of the Mbeki administration in the prosecution of TRC-related cases had had a negative impact on him and the families of apartheid victims such as Timol. He wanted the court to accept that the long delay in his prosecution was also a result of delays arising out of this interference, and that it prejudiced his right to a fair trial.
Noted but not swayed
It was the issue of political interference that swayed the majority of the appeal court judges to grant Rodrigues leave to appeal. After all, as Ledwaba noted in his decision, “the issue of the alleged political interference by the executive and the state president in the prosecution of such crimes, and its ongoing impact and relevance for prosecutions that may still be instituted in the future, was certainly relevant”. This issue further raised the broader significant legal question of “what effect, if any, political interference, as a matter of principle, had on operations of the criminal judgment system”.
In its finding, the appeal court concluded that “the ineluctable conclusion in all the circumstances was that political decisions were taken by the executive which may have affected the investigation and prosecution of the TRC cases”. The judges “agreed entirely with the full court’s finding that while the issue of political interference was a matter of great seriousness, the absence of detail as to why it occurred was not an impediment to the determination of the matter”.
In other words, the issue of political interference, while certainly undeniable, does not ultimately impinge on Rodrigues’ constitutional right to a fair trial. In his consideration of the issue and how it had a detrimental impact on the prosecutions of TRC-related cases between 2003 – when the commission handed its final report to then president Thabo Mbeki – and 2017 – when the NPA announced the reopening of the inquest into Timol’s death – Ledwaba echoed the dismay of the high court’s original findings.
“It is perplexing and inexplicable why such a stance was taken both in the light of the work and report of the TRC advocating a bold prosecutions policy, the guarantee of the prosecutorial independence of the NPA, its constitutional obligation to prosecute crimes and the interests of the victims and survivors of those crimes,” wrote Ledwaba.
“All these considerations, either viewed individually or collectively, should have stood in the way of any such a moratorium on the prosecution of TRC-era cases. That it happened despite the constitutional, legal and other considerations suggests disdain for those important considerations and interests. The full court rightly recommended a proper investigation into these issues by the [national director of public prosecutions].”
The appeal court further found “that there was no evidence that the 47 years’ pretrial delay would inevitably taint the overall fairness of the trial, and that old age and infirmity would be relevant at the sentencing stage and were not grounds upon which the appellant could rely upon as a form of prejudice”.
A worthless shield
In his minority opinion, Judge Azhar Cachalia wrote that in his view Rodrigues’ appeal should never have been entertained by the appeal court in the first place, arguing that there were “no compelling reasons to entertain this appeal, much less reasonable prospects of success”.
“The contention that political interference has tainted a decision to prosecute – or not to prosecute – has gained increased currency in recent years as individuals who wield political power seek to shield themselves from being held to account for their actions in criminal courts,” Cachalia added.
He noted that former president Jacob Zuma has used the accusation of political interference to fight his long-running battle against prosecution on charges of corruption.
In the Zuma matter, the appeal court had ruled that “a prosecution is not wrongful 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 … which in any event can only be determined once criminal proceedings are concluded. The motive behind the prosecution is irrelevant.”
Applying that decision to Rodrigues’ appeal, Cachalia concluded that “the political interference that admittedly happened did not make the decision to prosecute the appellant wrongful… The fact that the NPA and the minister did not disclose the full extent of the political interference when it filed its first set of answering affidavits is to be deprecated, but is not a ground to grant a permanent stay.”
Step towards speedier justice
Foundation for Human Rights director Yasmin Sooka called the judgment “an important step in the struggle by families of victims for justice and accountability”.
“The judgment made clear that Rodrigues and apartheid perpetrators cannot rely on the political interference by the state and the failure by the NPA to comply with [its] constitutional obligations as prejudicing their rights to a fair trial. The court also noted that Rodrigues did not apply for amnesty and that failing to apply for amnesty meant that you risked prosecution in the future.”
Moray Hathorn, an attorney for the Timol family, welcomed the decision. “Other potential people who might be subject to prosecution are obviously looking to this decision, including people who have already been prosecuted… So I would hope that it is a factor leading to speedier justice in these matters now.”
Rodrigues is scheduled to make his next court appearance on 12 July and it seems likely that he will now petition the Constitutional Court, based on his stubborn determination to fight the charges thus far. “Even if he appeals to the Constitutional Court, that will be a delay of, say, six months and the [court] might dismiss it immediately,” said Hathorn. “So perhaps we are moving forward in quite an important way … [because] that delay will not be very long in terms of the overall context of what’s already happened.”
He added that whatever the outcome of such an appeal, the Timol family still intended to pursue Rodrigues’ prosecution to the full extent of the law.
It is also said that should Rodrigues appeal to the Constitutional Court, lawyers for the Foundation for Human Rights and the Timol family might well ask the state attorney and the Ministry of Justice to cut off the funding for his lengthy and, in their opinion, unnecessary court battles. At the last estimate in early 2020, these had already cost taxpayers R3.5 million.