Why the case against Joao Rodrigues must go ahead

South Africa: Johannesburg: Former apartheid police officer Joao Rodrigues appears at the at the South Gauteng high court, Rodrigues was an officer in the apartheid-era police's feared security branch, is accused of being part of a group of policemen who murdered Ahmed Timol while he was in custody in 1971. Gauteng. Picture: Itumeleng English/African News Agency (ANA) 798 22.10.2018

What’s most revealing in Joao Rodrigues’s application to dismiss the charges against him is an admission that he was involved in a cover-up. “My only involvement,” he says, “was that I participated in the cover-up to conceal the crime of murder as an accessory after the fact of the murder.” When he testified in the two inquests into Ahmed Timol’s death (1972, 2017) he did not say that he was involved in a cover-up, nor did he implicate in these two inquests the two security officers, Captain Johannes van Niekerk and Captain Johannes Gloy, whom he now believes were most likely to have been involved in torturing and killing Timol.

Admitting that he was involved in a cover-up and that Gloy and van Niekerk were most likely responsible for Timol’s murder seems, for Rodrigues, a new point of departure in seeking exoneration from a murder charge. His application provides  little or nothing about the details of the cover-up. The cover-up, if we revisit the 1972 inquest, was, in a very significant way, to do him with him supposedly hearing a mysterious Mr X saying that he had the names of Timol’s three foreign co-conspirators while Gloy and van Niekerk were interrogating Timol. The actual identity of Mr X was never revealed. The reality is that this so-called Mr X did not exist, being nothing more than an absolute fiction created by the security police.

If Rodrigues admits to being a part of a cover-up he needs to testify in court what the cover-up was all about, and why there was a cover-up in the first place. Just how true is Rodrigues’s claim, as made in his application, that his rights to a fair trial, to be prosecuted without unreasonable delay, to be informed in detail of the charges against him, and to challenge the evidence have all been abrogated?

Rodrigues did not, as was established in the 2017 inquest, avail himself of the opportunity to come forth and present himself at the Truth and Reconciliation Commission some twenty years ago to give an account of his version of the narrative of Timol’s death. When information was put out to the public that a second inquest into Timol’s death was going to be held he did not, once again, avail himself of the opportunity to come forth and agree to testify as a witness. In fact, it was only after his daughter revealed his whereabouts that he was approached to testify, and he did indeed do so.

It’s true that the National Prosecuting Authority failed to look into the cases of around 300 apartheid-era suspects who, according to the TRC, should have been investigated and prosecuted. The NPA must, of course, give a plausible account of why this happened, but should Rodrigues’s prosecution be permanently stayed because the NPA failed to prosecute him timeously? The answer should, of course, be a categorical ‘No’.

Roderigues’s role in Timol’s murder was, for the first time, revealed only recently – only after Judge Billy Mothle ruled in his judgement (12 October 2017 ) thatRodrigues had lied about Timol’s murder and should be investigated. The NPA did get its act together and went ahead with prosecuting Rodrigues. It also went so far as providing his defence team very detailed evidence of the charges against him.

Given all this, it can’t be argued that there was a protracted delay in bringing charges against Rodririgues. It was not long ago, in October last year, that it was ruled in court that Rodrigues should be investigated, and it was not long after that, in January this year, that the NPA brought charges against him.

There is one glaring discrepancy in the evidence that Rodrigues gave in the two inquests. He claimed, under oath, that Timol “dived out” from the window of the room where he was being interrogated in Room 1026 on the 10th floor of John Vorster Square at a very specific time: just before 4 pm on Wednesday, 27 October 1971. By contrast, on the basis of the testimonies of three eyewitnesses, Judge Billy Mothle found that Timol’s body fell to the ground at a very different time: around mid-morning of that same fatal day. In fact, the judge reminded Rodrigues of this discrepancy when he was in the witness box and asked him to explain it.

What the discrepancy brings into question is the fact of whether Rodrigues was in the said room at all. In all probability he was not. He was either a fall guy or a patsy in the elaborate cover-up that the security police concocted to hide the truth about Timol’s murder. It’s not unknown for the security police and or the intelligence agencies throughout the world to do this sort of thing. The murder of the Washington Post journalist Jamal Khashoggi by the intelligence agency of Saudi Arabia is the most recent case in point.

It is of vital importance that all those individuals in the apartheid regime responsible for Timol’s murder, from the lowest to the highest rank, should be held accountable. And this must be done irrespective of whether the individuals concerned are alive or dead or whatever their age might be.

Greg Nicholson of the Daily Maverick raises a most pertinent point about this matter: “An estimated 73 activists were killed while in detention during apartheid. The court’s decision on Rodrigues’ application – how it assesses the state’s reluctance to prosecute apartheid cops and its failure to act on the TRC recommendations – will probably set a precedent that will determine whether the families of the dead find justice.” Ultimately it is in the public interest that the facts about Timol’s death, as well as the deaths of other detainees, are revealed.

Dr Salim Essop was arrested with Ahmed Timol in 1971 and brutally tortured. He is currently resides and teaches in Britain.