On 28 and 29 March 2019, the High Court in Pretoria will hear the criminal case of Rodrigues v National Director of Public Prosecutions (case number: 76755/18). Joao Rodrigues (“the Applicant”), a former member of the Security Branch under the apartheid regime, is accused to have murdered Ahmed Timol on 27 October 1971. SALC intervened as an amicus curiae in response to a directive issued by the Judge President of the High Court in this matter. SALC submits that the facts in this matter also justify an indictment for crimes against humanity and not only of a single murder. In this regard, SALC seeks a legal re-characterisation of the charge against Rodrigues to acknowledge and recognise that apartheid has been recognised as a crime against humanity and that he should be charged with ‘crimes against humanity of apartheid’.
A first inquest in 1972 concluded that Mr. Timol committed suicide when he jumped out of 10th floor of the John Vorster Square. The Court concluded that ‘no living person was responsible for his death’ and that Mr. Timol was treated in a civilised and humane manner by the Security Branch.
The inquest was however re-opened by the High Court of Pretoria in 2017. The Court concluded that there was a cover up of the death of Mr. Timol and that he was pushed out or made to jump while he was in company of members of the Security Branch. The High Court further recommended an investigation with a view to prosecute the Applicant who made contradictory statements before the inquests in 1972 and 2017. The 2017 inquest illustrates the involvement of the Applicant and two other interrogators in the murder of Mr. Timol. The National Prosecuting Authority issued an indictment against the Applicant in July 2018. The Applicant was charged with murder as well as defeating and/or obstructing the administration of justice. Apart from denying any involvement in the murder of Mr. Timol, the Applicant argues that the pending criminal proceedings violate his constitutional right to a fair trial which he bases on the alleged delay of proceedings.
The factual assessment in the indictment illustrate a clear link between the system of apartheid, the death of Mr. Timol and the conduct by the Applicant. Based on the same facts that are part of the indictment, SALC’s submission seeks a legal characterisation that is not only limited to the single crime of murder but also includes:
- crimes against humanity of apartheid;
- or alternatively crimes against humanity of murder and/or
- crimes against humanity of persecution.
SALC places these submissions before the High Court of Pretoria to assist the court to decide whether it will itself make any changes to the legal characterisation of the indictment or whether it motivates the prosecution to reconsider and review its current legal characterisation in the indictment.
International institutions like the General Assembly or Security Council of the United Nations have condemned the system of apartheid as racial discrimination repugnant to human dignity, in violation of international law and characterised apartheid as a cognisable offence under crimes against humanity since 1965. In this respect, the crime of crimes against humanity constituted binding international law on South Africa in 1971 to the same extent as it does today. Crimes of such gravity do not fall under any prescription by South African or international law. Therefore, a crime that has been committed 47 years ago can still be prosecuted today.
SALC’s Executive Director, Kaajal Ramjathan-Keogh made this statement about the case, “This case is not about a single murder. It is about how a single murder is connected to the system of apartheid and therefore becomes a crime against humanity. The crime of apartheid has never been prosecuted and this case should pave the way for such prosecutions to commence. It has been over 20 years since the Truth and Reconciliation Commission issued its final report and recommended more than 300 cases for further investigation or prosecution. So far, none of those cases have been prosecuted. Ramjathan-Keogh added, “In fighting impunity and administering justice, crimes that were committed during the apartheid era must be prosecuted; even if those prosecutions take place decades after the commission of those crimes. A correct legal characterisation of the facts based on international law is therefore essential for any proceeding in this respect”.