Big day for international justice: Johannesburg High Court dismisses apartheid police officer’s application to cease prosecution
The High Court on the 3rd of June delivered its finding in the criminal case of Rodrigues v National Director of Public Prosecutions (case number: 76755/18). The matter was argued on the 28th and 29th of March 2019, where a full bench constituted by Justices DSS Moshidi, I Opperman and led by Justice NJ Kollapen heard the request for a permanent stay of prosecution from Joao Rodrigues (the applicant). Rodrigues, 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 made submissions 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 sought 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. The court dismissed Rodrigues’ application for a permanent stay of prosecution stating that the interests of the justice; the societal need to ensure accountability for the commission of serious offences and the nature of the crime militate against the relief sought.
The court in particular referred to SALC’s submissions which support a conclusion that the crime in question would constitute a crime against humanity of apartheid. The court noted that these offences trigger an obligation in terms of customary international law on the part of the South African government to investigate and prosecute such offences. The court did not take it upon itself to amend the charges nor to direct the NPA to do so. The court instead said that that the State was open to reconsider the charge sheet to include crimes against humanity or in the alternative to argue upon any conviction that the conduct would also have constituted a crime against humanity. Even though the court did not deal with those issues, it did accept that the conduct in question may constitute a crime against humanity. The court elected to leave the determination of those issues for future processes.
SALC’s Executive Director, Kaajal Ramjathan-Keogh, stated that, “We welcome the court’s finding. It is encouraging that a South African court has recognised that the NPA may seek to reconsider the charges in question and to amend them to include crimes against humanity. We are mindful that there has not been a single individual who has been charged with the crime of apartheid and we are hopeful that the NPA will seize this opportunity to amend the charges against Rodrigues and to charge him with ‘crimes against humanity of apartheid’.” Ramjathan-Keogh added, “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. This case should pave the way for the crime of apartheid to be prosecuted. 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. 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. An amended legal characterisation of the indictment based on international law is essential to proceed with such prosecutions”.
The court commented on the political interference from the Prosecuting Authority and made these strong remarks, “While it is manifestly clear that the political interference materially affected the ability of the NPA to properly deal with the TRC cases in that the resources that were necessary were not forth coming, the NPA cannot, as it seeks to do, portray itself purely as a victim of the political machinations of the time. Whatever form the political interference took, the NPA was enjoined in terms of both its constitutional and legal responsibilities to act on behalf of society and protect the public interest”. The court reminded the NPA that section 179 (2) of the Constitution vests exclusive power in the NPA to institute criminal proceedings on behalf of the State, whilst Section 179(4) requires the NPA to exercise its functions without fear, favour or prejudice. The court concluded by saying that refusing a permanent stay of prosecution was not an attempt to be vengeful to those who committed serious crimes in the past but rather, an affirmation that the principles of accountability and responsibility for breaching the rules of society stand at the doorway of our new constitutional order.
SALC was represented by Advocates Salim Nakhjavani, Bonita Meyersfeld and Lawyers for Human Rights.
SALC’s Submission: The factual assessment in the indictment illustrate a clear link between the system of apartheid, the death of Mr. Timol and the conduct by Rodrigues. Based on the same facts that are part of the indictment, SALC’s submission sought 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 placed these submissions before the High Court 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.
Background to the case: 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.