Imtiaz Cajee
Almost twenty years after the Truth and Reconciliation Commission (TRC) recommendation reports were handed over to the Government for implementation, has South Africa witnessed a change in tide for re-opening apartheid-era inquests.
Are the overturning of original findings of inquest records enough? Is there an appetite to pursue those fingered in the murder of loved ones post-inquest findings?
Recent developments in the reversal of original inquest findings of suicide in police detention in the Dr Neil Aggett, Ernest Dipale, Dr Hoosen Haffejee and Imam Haron matters clearly indicate so. This progress must be welcomed. Re-opened inquests in democratic South African don’t just happen. This is due to committed investigating officers and prosecutors who are determined to find truth and justice for families as they remain confronted with challenges on all fronts.
In 2003, the TRC reported handing over more than 300 cases to the NPA of those who did not apply for or who were denied amnesty for further investigation and prosecution.
According to the latest NPA reports, 88 TRC cases for investigation are re-opened and 15 matters where decisions have been taken. A further 11 matters appear on the court roll where suspects have been charged or where inquests have been opened. Presently there are 135 matters under investigation.
In June 2021, the NPA and DPCI (HAWKS) announced enhancing collaboration to investigate and prosecute TRC cases. According to the report, they re-enlisted competent and highly skilled former police officials with wealth of knowledge in the detective environment.
After decades of supporting the apartheid regime, how many of them can be trusted to investigate their former colleagues?
Can there be quality investigations when critical documents remain classified? They remain closely guarded in the hands of those that served the pre-1994 government. Investigating officers and prosecutors continue depending on the goodwill of government bureaucrats to make available justice and security files for their investigations.
How many records continue to be destroyed in democratic South Africa or withheld? There is no evidence of the government having any intention to declassify apartheid-era records. Despite massive destruction of apartheid-era records prior to 1994, there is evidence to suggest that security files continue to remain in the possession of former apartheid-era security officers.
Any encouraging news that perpetrators have been charged criminally are marred by lengthy delays such as in the matters of Nokuthula Simelane, COSAS Four and Caiphus Nyoka.
Multiple reasons have been advanced from the South African Police Service refusing to fund legal representation of their former South African Police (SAP) colleagues, deaths of accused, applications for the inclusion of International charges of Crimes against Humanity, last minute applications of amicus curiae as friends of the court in criminal proceedings, and assertions of unfitness to stand trial.
This, as the architects and capital beneficiaries of apartheid remain unaccountable.
Families need to brace themselves for lengthy delays. Legal counsels are now exhausting all avenues at their disposal as per the Constitution to prolong their cases for as long as possible. The end goal is that the accused dies before been held accountable by exercising his Constitutional Rights.
The NPA’s Missing Persons Task Team (MPTT) conducts investigations to trace the whereabouts of persons who disappeared in political circumstances under apartheid and where possible to recover remains for the affected families as per recommendations of the TRC.
In November 2022, the unit recovered 179 missing persons. However, there is no evidence of any person(s) charged for their murders.
Why is the most obvious question not asked: How did the bodies end up in the grave?
Joao Roderigues, the accused in the Timol matter, employed Stalingrad tactics to delay and be held accountable after the suicide verdict in the Ahmed Timol re-opened inquest was overturned. An application for a permanent stay of prosecution in terms of Section 342A of the Criminal Procedure Act, 51 of 1977 was heard before the Full Bench of the South Gauteng High Court in Johannesburg.
The appeal was also unsuccessful at the Supreme Court of Appeal (SCA) in June 2023 before he died in September 2021. The NPA’S PCLU and DPCI investigating officer were unable to locate Roderigues. It was his daughter that disclosed his whereabouts after reading about the re-opening in the media. At the time of his eath, Roderigues’ appeal was still to be heard by the Constitutional court.
Apart from recommending the role of Roderigues be investigated in the death of Ahmed Timol, Judge Billy Mothle in his precedent setting judgment of 12 October 2017, recommended that security branch police officers Neville Els (82) and Seth Sons (78) be charged for perjury for lying under oath. Both police officers testified that they were unaware of or witnessed assaults at John Vorster Square.
Almost immediately, witnesses stepped forward, in particular countering the evidence of Sons. It would take the NPA another three years, despite the evidence, to decide to not charge either Sons or Els.
The decision was then taken on review to the National Director of Public Prosecution (NDPP). The Head of National Prosecution Services (NPA) took a decision to charge Sons and Els. He changed his decision after the key complainant Professor Naik passed away and Dr Essop, due to ill health and age, could no longer testify.
Had the NPA prosecuted timeously, the outcome would have been different.
Are we to have confidence in the NPA to prosecute perpetrators after reversal of inquest findings?
In its scathing judgment of the NPA, the Full Bench in 2019 lambasted the NPA for failing to execute its duties and functions after senior prosecutors of the Priority Crimes Litigation Unit (PCLU), Dr Torie Pretorius and Advocate Chris Macadam in their sworn affidavits admitted to have been aware of political interference.
The court recommended to the NDPP that this allegation be investigated and if it was found that any person/s prevented or hindered the prosecution from performing its duties, criminal charges be investigated.
The appointment of Adv Ntsebeza SC in January 2023 to investigate the matter further is welcomed. I look forward to his finding and recommendations on actions to be taken upon any officials.
As South African political parties enter election mode for 2024, how many election manifestos make reference to post-TRC prosecutions? Re-opening of apartheid-era inquests are welcomed. However, are some nervous that they might be exposed for betraying the revolution?
The struggle for the truth and justice of our martyrs is not only the responsibility of victims and the families, or the NPA/DPCI. Government has a moral and ethical obligation to support the process. They must be reminded that they are in the political office because of the blood and sweat of our loved ones.
Digging into the past is painful but a necessity. Families need to remain vigilant as actors are lurking all over to enjoy the ride as post-TRC prosecutions are firmly back in the South African discourse. Re-opening of apartheid era inquests must be supported. Families need closure and the annals of history to correctly reflect that our loved ones were murdered by the apartheid regime.
“I am going to tell it like it is. I hope you can take it like it is.” - Malcolm X.
Cajee is the nephew of Ahmed Timol and writes in his personal capacity. He is busy with his third book. Visit www.ahmedtimol.co.za