On 6 November 2020, the Supreme Court of Appeal (SCA) will hear the case of Joao Rodrigues v National Director of Public Prosecutions and Others. Joao Rodrigues (the Appellant), a former member of the Security Branch under the apartheid regime, is accused of having murdered Ahmed Timol (Mr Timol) on 27 October 1971. The Appellant seeks a permanent stay of prosecution based on an alleged violation of his constitutional rights under section 35 of the Constitution and an alleged amnesty agreement that supposedly prevents prosecution of the Appellant. SALC was admitted by the SCA to make submissions in this matter as a friend of the court (amicus curiae). On the basis that the indicted conduct of the Appellant occurred in furtherance of apartheid, SALC submitted that:
- The killing of Mr Timol amounts to at least three categories of crimes against humanity;
- South Africa has a duty to investigate and prosecute crimes against humanity and that the lapse of time before prosecution cannot, in itself, violate a right to a fair trial;
- The alleged amnesty qualifies as blanket amnesty and may not be recognised or enforced in respect of crimes against humanity.
In 1972, a first inquest concluded that Mr Timol committed suicide when he jumped out of the 10th floor of John Vorster Square. Magistrate JL de Villiers 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.
In 2017, the inquest was however re-opened by the High Court of South Africa (Gauteng Division, Pretoria). The High 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 the company of members of the Security Branch. The High Court further recommended an investigation with a view to prosecute the Appellant who made contradictory statements before the inquests in 1972 and 2017. The 2017 inquest illustrated the involvement of the Appellant and two other interrogators in the murder of Mr Timol. The National Prosecuting Authority issued an indictment against the Appellant in July 2018. The Appellant was charged with murder as well as defeating and/or obstructing the administration of justice. The Appellant’s application for a permanent stay of prosecution was dismissed by the High Court of South Africa (Gauteng Local Division, Johannesburg) in June 2019.
The charged conduct of the Appellant occurred in furtherance of apartheid which constitutes a crime against humanity. SALC submits that at the time of Mr Timol’s imprisonment and death, apartheid was prohibited under customary international law as a crime against humanity. SALC reiterated its position that the killing of Mr Timol qualifies as:
- Crimes against humanity of apartheid;
- Alternatively crimes against humanity of murder and/or
- Crimes against humanity of persecution.
South Africa has an obligation under international law to prosecute international crimes such as crimes against humanity. SALC’s analysis of international law further concludes that international law prohibits a time bar to the prosecution of crimes against humanity. On this basis, SALC’s submission assists the SCA to decide whether the delay of prosecution constitutes a violation of the Appellant’s constitutional rights.
Another critical issue in this matter is the asserted amnesty by the Appellant. As the Appellant states:
“an amnesty had been granted to perpetrators or alleged perpetrators of unlawful conduct of a political nature alternatively that there was an agreement with the authorities to the effect that no prosecutions would be instituted for political offences of this nature.”
SALC argues that such an amnesty, if it exists, constitutes a blanket amnesty. Such an amnesty differs substantially from amnesties granted under the Promotion of National Unity and Reconciliation Act (Reconciliation Act). The Reconciliation Act sets out two main prerequisites for amnesty:
- Any person who wished to benefit from an amnesty in respect of any criminal act had to submit an application for amnesty to the TRC;
- The applicant had to make full disclosure of all relevant facts.
The TRC clearly distinguished its amnesty regime from blanket amnesties:
“[O]ur nation, through those who negotiated the transition from apartheid to democracy, chose the option of individual and not blanket amnesty. And we believe that this individual amnesty has demonstrated its value. One of the criteria to be satisfied before amnesty could be granted was full disclosure of the truth. Freedom was granted in exchange for truth.”
The Appellant, however, did not apply for amnesty under the Reconciliation Act. The asserted amnesty constitutes a blanket amnesty which is defined by the following characteristics:
- Exemption of a broad category of perpetrators from prosecution, without distinction;
- No application on the part of the alleged perpetrator is required;
- An inquiry into the facts of each application is not demanded.
SALC’s analysis of international, regional and national jurisprudence reveals that blanket amnesties absolve perpetrators of international crimes from accountability. The jurisprudence of international, regional and national courts and tribunals is, therefore, clear: there may be no amnesties, particularly blanket amnesties, recognised in respect of or applied to crimes against humanity.