In October 2017, Judge Billy Mothle handed down a historic judgment in which he overturned the finding of Magistrate de Villiers that Ahmed Timol had committed suicide and no one was to be blamed for his death. Judge Mothle found that Timol had been severely tortured and killed by his interrogators. Judge Mothle ordered that Joao Rodrigues who was the last person to see Timol alive, be charged with his murder. Following the judgment, Rodrigues brought an application to permanently stay his prosecution.
In his application, Rodrigues cited among other things, that he had been granted amnesty by the President and that there was an agreement reached between government and other interested parties not to prosecute certain crimes including the murder of Timol. Finally that being prosecuted in his advanced age would violate his right to dignity and therefore he should not stand trial. The argument of a second amnesty alternatively an arrangement for a pardon was rejected by the court that took into account that the attempt to introduce a second amnesty was declared invalid, (the legislation was successfully opposed by the Foundation for Human Rights). On 3 June 2019 the High Court sitting with a full bench dismissed his application. On 18 September 2019, the High court refused leave to appeal. Joao Rodrigues has since applied for leave to appeal to the SCA and the matter will be argued on 6 November 2019.
The Former Commissioners of the TRC who were granted leave to intervene in the High Court application brought by Rodrigues once again approached the Foundation for Human Rights (“the Foundation”) to assist them in bringing an application to intervene in the appeal to the SCA as amici so as to assist the court with their insight, organisational knowledge and expertise acquired during their tenure at the TRC. In the past the Foundation assisted the TRC to finalise its final report to the government in 2003.
The Foundation for Human Rights supports the family of the late Ahmed Timol in their quest to obtain justice and hold accountable those responsible for gross human rights violations under apartheid. The Foundation is of the view that the survivors and the families of those who died in detention need to know the truth about how their loved ones were tortured and killed so that they can get closure on a painful chapter in their lives. This in turn will promote respect for the rule of law and strengthen the independence of the judiciary. For the reasons outlined above we believe that the application for leave to appeal to the SCA by Rodrigues should be dismissed.
The Former TRC Commissioners Yasmin Sooka, Advocate Dumisa Ntsebeza, Mary Burton, Wendy Orr, Glenda Wildschut and Fazel Randera have been granted admission as amici curiae in the application for leave to appeal filed by Rodrigues in the SCA. The Former TRC Commissioners will share with the court their unique experience in matters related to truth recovery, criminal accountability, reparations and the guarantee of non-recurrence and the link with reconciliation, constitutionalism and the rule of law due to the fact that they were intimately and directly involved in the TRC process and the production of its final report.
This case is of particular importance to the Former TRC Commissioners who act in their own interest and in the public interest given that it deals with the appropriate treatment of crimes committed by agents of the State under apartheid. In particular the obligation of the State to pursue a bold prosecution policy to hold perpetrators who were not granted amnesty or did not apply for amnesty accountable. More importantly, the Former TRC Commissioners will illustrate with reference to the legal matrix of the TRC Act that it was the only entity capable of making recommendations for amnesty, and regardless of Mr Rodrigues’ contention, that it was only the TRC that was empowered to do so.
The TRC Commissioners will also draw attention to the prosecution of Nazi-era crimes where attempts to evade prosecution on the grounds of old age and infirmary were rejected to show that old age and infirmary cannot be a bar to prosecution.
In the 22 years that have elapsed since the TRC handed over its final report to government, the Rodrigues prosecution is but one of a handful of cases to make it into the courts, the others being the prosecution for the enforced disappearance of Nokuthula Simelane and the reopening of the Neil Aggett and Hoosen Haffejee inquests as a result of investigations done by the FHR on behalf of the families of victims and legal support from pro bono lawyers.
The failure to investigate and prosecute those who chose not to make full disclosure before the TRC or were denied amnesty for their transgressions since 2003 adds to the trauma of the victims who seek closure. It is our respectful view that the shameless manner in which families of the victims of human rights violations have been ignored despite their participation in the TRC process to obtain the truth of what happened to their loved ones, is a deep betrayal of the justice promised by the TRC process to heal the nation. The NPA and the Hawks despite several interventions by the pro bono lawyers, the former TRC Commissioners and assistance from the FHR investigator have failed to show any appetite to investigate and prosecute those who were denied amnesty. The government and the NPA should issue an apology to the families of victims for their shameful neglect and betrayal.
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Foundation for Human Rights: Ahmed Mayet email@example.com and/or Katarzyna Zdunczyk firstname.lastname@example.org or consult our website at https://unfinishedtrc.co.za
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