The three-ring circus is back in town, alas

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The last time Politicsweb covered the State versus Joao “Jan” Anastacia Rodrigues, 79, was on January 29, at which time the salient points were these. First, Rodrigues’ murder trial, for the 1971 death of activist Ahmed Timol, had been set down provisionally for April 8. Second, his application for a permanent stay of prosecution had been set down for March 28 before a full bench of the Gauteng high court.

Third, on 19 December, Timol’s family, represented by nephew Imtiaz Cajee, and the family of Hoosen Haffejee, represented by Haffejee’s sister, Sarah Lall, applied to be admitted as intervening parties in Rodrigues’ application. The Haffejee family sought to intervene based on information that activist Haffejee “died in similar circumstances” to Timol. Rodrigues did not oppose the applications. However, Judge Ramarumo Monama, while granting permission to the Timol family, denied it to the Haffejee family. 

Now a group of six former commissioners of the Truth and Reconciliation Commission (TRC) – Yasmin Sooka, Dumisa Ntsebeza, Mary Burton, Wendy Orr, Glenda Wildschut and Fazel Randera – and the South African Litigation Centre (SALC) have applied to be amici curiae in Rodrigues’ application for a stay of prosecution.

Sooka, deposing on behalf of the former commissioners, noted that Rodrigues’ application “will likely ... serve as a test case for the appropriate treatment of other unresolved crimes from the apartheid era” [my emphasis].

Sooka summarised the commissioners’ five main submissions as follows. First, although it was “shameful” that the NPA had failed to prosecute perpetrators of apartheid-era crimes not granted amnesty, “the NPA appears now to be alive to the need to prosecute such crimes” – and this should be “encouraged”. She noted that it “came as a shock to learn in 2015 ... that Vusi Pikoli had been subjected to executive instructions not to prosecute or investigate [TRC] matters”. Similarly, she also learned in February 2019, from an affidavit deposed by the NDPP’s Chris Macadam, that “all investigations into the TRC cases were stopped in 2003”.  But now that the NPA seemed ready to get its act together, the Court “should be slow to stand in the way of the NPA doing so” [sic].

Second, the commissioners argued that “granting a permanent stay of prosecution” in Rodrigues’ case “would have dire implications for the rule of law, accountability and reconciliation in South Africa” (my emphases). Granting Rodrigues a stay “threatens a double-breach of the rule of law”. The first breach, Sooka said, resulted from “the obdurate failure by the NPA to prosecute such crimes over the last 20 years”. The second breach flows from using the [NPA] failure as a basis to prevent future prosecutions from occurring. “The prosecution of Mr Rodrigues, and others like him [sic], is critical in order to uphold the rule of law.”

Third, Rodrigues’ contention that “on the probabilities, he was likely granted amnesty, are without any basis”. She was referring to Rodrigues’ submission that “[i]t appears that there was indeed amnesty granted” by the “State President”. Sooka suggests that Rodrigues is referring to an attempt “made in 2007, when President Mbeki announced a special dispensation to deal with the ‘unfinished business’ of the TRC”. But Sooka says [Mbeki’s attempt] was effectively struck down in 2010 by the Constitutional Court.

Fourth, said Sooka, the commissioners could demonstrate, in terms of domestic and comparative law, “that old age and infirmity are not obstacles to prosecution” – that such factors could be considered regarding sentencing but not as reasons for precluding prosecution. Sooka then refers inter alia to the case of one Oskar Gröning, a SS Unterscharführer, stationed at Auschwitz until about the end of 1943, and convicted at the age of 93 of being an accessory to the murder of at least 300 000 [sic] Jews. Gröning appealed against jail time (four years) based on his age but was turned down by the German Federal Constitutional Court. He died in hospital aged 96.

Fifth, SA’s “international law obligations” weigh against the granting of a permanent stay of prosecution in a case such as that of Rodrigues.

The SALC argues that “the killing of Mr Timol [should not be characterized as] murder as a common law crime, but rather murder as a crime against humanity of apartheid [sic]”. The SALC said it would “advance legal argument that the killing of Mr Timol constituted the [sic] crime against humanity of apartheid” and that the court “has the inherent power” to change the charge to a “crime against humanity”.

Rodrigues’ legal team will decide by Friday, March 9 whether to oppose the two applications.

What to make of all this?

Let’s start by considering the reference made by former TRC commissioner Sooka to Oskar Gröning, the SS Unterscharführer convicted at the age of 93 of being an accessory to the murder of at least 300 000 Jews at Auschwitz ^[i]. In fairness to Sooka, she referred to this by way of pointing out that age does not necessarily exclude someone from doing jail time.

But hold the phone. Gröning was convicted of being an accessory to the murder of 300 000 people. 300 000.  Read it and weep. Rodrigues has been charged with the murder of one person – and it’s by no means clear that this charge holds any legal validity, which is why he’s applied for a stay of prosecution. And not only has Rodrigues been likened to a mass murderer but, according to the SALC, he is also allegedly guilty of a crime against humanity. (Might he be extradited to the International Criminal Court in The Hague?)

Isn’t the hyperbole, exaggeration and lack of perspective getting a little out of hand here? Why is there this driving need to turn the findings of the second inquest into the death of Timol – and the subsequent decision to prosecute Rodrigues – into a three-ring circus?

Let’s return to the “facts” for a moment. Rodrigues was an admin clerk who went to (then) John Vorster Square police station carrying salary slips or cheques on October 27, 1971. Rodrigues claims he was left alone with Timol in room 1026 when, according to Rodrigues, Timol propelled himself out of the window. This version (Timol committed suicide) was reversed in October 2017 by Judge Billy Mothle who ruled instead that Timol had been murdered.

Mothle wrote: “(d) Timol’s death was brought about by an act of having being [sic] pushed from the 10th floor or roof of the John Vorster Square Building ... There is prima facie evidence implicating [Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy, both now dead] ... [Joao] Rodrigues, on his own version, participated in the cover-up to conceal the crime of murder as an accessary [sic] after the fact, and went on to commit perjury by presenting contradictory evidence before the 1972 and 2017 inquests. He should accordingly be investigated with a view to his prosecution.”

In short, Rodrigues allegedly told lies about what happened. Yet the NPA has charged him with murder. Rodrigues has responded as follows: “It is inherently unfair and infringes my fundamental rights to a fair trial to charge me on a count of murder ... under circumstances where a High Court, after a very detailed investigation ... of all the relevant evidence in this regard [the second inquest], found that I [the accused] was not involved in or even present at the time of the murder of the deceased.”

What then is this about? Chapter and verse have recently emerged that prosecutions into the crimes of those not granted amnesty by the TRC were shut down. These prosecutions were curtailed by the ANC administration, probably for a variety of reasons: an unwillingness for more dirt to emerge, an “understanding” with the security “people” of the evil regime (who had their own collection of dirt stored away), and because the ANC qua group was also denied amnesty.

Now it seems the NPA is ready to roll again. And a lot is riding on Rodrigues case. As Sooka noted in her application, the outcome of Rodrigues’ application for a stay of prosecution “will likely also serve as a test case for the appropriate treatment of other unresolved crimes from the apartheid era”. (Well, yes and no: maybe the next trial regarding an unresolved apartheid-era crime will have more hard evidence.). 

In Leviticus 16, two male goats were designated to be sacrificed to Yahweh and of those two, one was selected by lot to be cast out into the desert (“to be sent to Azazel”) as part of the Day of Atonement. The trouble – the tragedy, if you prefer – is that the NPA, the Timol family, and those who want to resuscitate quashed prosecutions and vindicate the memories of murdered activists have simply chosen the wrong goat.

Footnote

[i] According to Dr Wikipedia, by the way, “Gröning decided to make his activities at Auschwitz public after learning about Holocaust denial. He openly criticised those who denied the events that he had witnessed, and the ideology to which he had subscribed. The recorded accounts he provided to the BBC in 2005contributed to the decision and ability to prosecute him. His record as an activist against Holocaust deniers since 1985 was not taken into consideration”.

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