It has come to light that the Law Society of South Africa (LSSA) has “apparently” made an application to be an amicus curiae in the court application of Joao “Jan” Rodrigues, 79 – due to apply on March 28 before a full bench of the Gauteng high court for a permanent stay of prosecution for his alleged murder of activist Ahmed Timol in October 1971, 47 years ago.

One must write “apparently” because, although the LSSA sent (what are known as) “heads of argument” on 27 February to the office of Dunstan Mlambo, Gauteng Judge President (GJP), the LSSA did not lodge an actual application to be an amicus [1]. For someone or an organisation to be admitted as an amicus, he, she or it must formally apply. This is how it works.

There’s a second difficulty. Although, in a “directive” dated February 8, the GJP invited “interested parties” to apply to be amici in the Rodrigues case (the LSSA was apparently responding to this), the GJP failed to set a date on which such applications could be considered by the court.

Even if a person or organisation makes an unopposed application to be an amicus (and Rodrigues has not opposed anyamici applications), the court must still consider whether the application is relevant. Thus, the applications made by (i) a group of six former Truth and Reconciliation Commission (TRC) commissioners, (ii) the South African Litigation Centre (SALC), and now possibly (iii) the LSSA, have still to be weighed by the court.

At the time of writing this, Thursday 28 March is less than a week away and only two court days have been scheduled for Rodrigues’ application. So, when will the judges hear the amici applications? Or is Rodrigues’ application for a stay going to end up being postponed until a full bench can again be put together? Remember that although this matter has been in abeyance for 47 years, the high court is extremely busy and individual judges have full diaries.

There is another potential spanner in the works. It is not yet known whether Judge Ramarumo Monama will be one of the judges dealing with the Rodrigues application. The significance of whether Monama will be (or not) is that on December 19 he refused in no uncertain terms the request of activist Hoosen Haffejee’s family, represented by his sister, Sarah Lall, to be an amicus [2]. If the TRC commissioners and LSLC and perhaps even the LSSA are admitted as amici, how will the Haffajee family react? Will it not bring an application to have its admittance re-considered?

For now, however, let’s leave these “technical” and scheduling lacunae aside. Perhaps the LSSA’s failure to apply properly was simply the result of load shedding or some such thing – and will be condoned by the court. And hopefully the GJP will sort out the other problems early this week. 

Let’s rather turn our attention to the “heads” sent in by the Law Society of South Africa. According to its website, the LSSA has since 1998 “represented the attorneys’ professions. The LSSA brings together the Black Lawyers Association, the National Association of Democratic Lawyers and provincial attorneys’ associations.” The website also notes a plethora of duties and initiatives undertaken by the society including inter alia “protecting and promoting the independence of the judiciary and of the legal profession”.

In other words, it’s a general society, to which probably all attorneys in SA belong (including Rodrigues’ attorney), and which probably exists because most professions like to have an umbrella body representing them and protecting their independence, etc.

But why in heaven’s name has such an organisation involved itself, albeit incorrectly, in a murder trial in a way that clearly tries to sway the court against Rodrigues’ application? Should the LSSA be doing this sort of thing?

An amicus curiae is defined as follows: “...someone who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case ...” [my emphasis]. In its heads, as examples of its expertise and insight, the LSSA offers five reasons why Rodrigues’ application for s stay should be dismissed.

First: that murder does not prescribe. Second: that the murder of Timol was “a political act carried out by the police of the Apartheid State”. Third: that it would be “unconscionable to allow a man implicated in a murder of a political nature, who did not obtain amnesty [in terms of the applicable legislation at the time], to remain at large when his prima facie culpability has been so thoroughly exposed as in the re-opened inquest”.

Fourth: that if Rodrigues’ prosecution is permanently stayed, “unhealthy cynicism ...would be further engendered ... in light [sic] of all the surrounding circumstances of contemporaneous South Africa, like the State Capture Commission and various other Commissions ...”

Fifth: that there do exist persuasive and cogent reasons for the long delay in bringing charges against Rodrigues and, moreover, that Rodrigues cannot argue that he has suffered “irreparable trial prejudice” due to the 47-year-delay, because “he attended the re-opened inquest [where he] heard all [my emphasis] the evidence ...concerning the cause of death of Mr Timol ... [therefore, Rodrigues] has a unique insight into the strengths and weaknesses of the State case against him for murder”.

There is much one could say about the LSSA heads of argument; that, for examples, Rodrigues never argued anywhere that murder prescribes; nor was his “prima facie culpability exposed at the re-opened inquest” – au contraire; and that it seems a bit of a stretch to hold the possibility that Rodrigues might not be prosecuted responsible for exacerbating the “contemporaneous” situation in the country.

But there are two more important points that require underlining. The first is that nowhere – nowhere – in the heads does the author take note that Rodrigues’ chief argument in favour of a permanent stay is that “a High Court, after a detailed investigation and evaluation of all relevant evidence ... found that I was not involved in or even present at the time of the murder of the deceased”. It’s as though, for the LSSA, this argument simply doesn’t exist.

This leads us to a second important point. Look again at the fifth reason offered by the LSSA for why Rodrigues’ application should be dismissed. Rodrigues, says the LSSA, can’t argue that he suffered “irreparable trial prejudice” due to an almost five-decade delay because “he attended the re-opened inquest [where he] heard all the evidence”.

This is important because it serves to reminds us that after Rodrigues was charged, his defence team requested “further particulars” from the state. Remember that the reopened inquest found (as just noted) that Rodrigues was not involved in or even present at the time of the murder of the deceased.

In other words, without wishing to exaggerate, Rodrigues’ defence team was somewhat gob-smacked that the state, despite the findings made at the reopened inquest, was proceeding primarily with a murder charge against Rodrigues. Was there some new (damning) evidence that hadn’t been presented at the reopened inquest?

The state replied that it had presented all it had to present; i.e., Rodrigues had indeed heard “all the evidence”.

This must seem, to a rational and dispassionate observer, to be a serious and worrisome matter.

At the re-opened inquest, Judge SP “Billy” Mothle found this: “The court’s prima facie finding is that members of the Security Branch who were interrogating Timol on the day he died, through an act of commission or omission, murdered Timol. This they committed through dolus eventualis as the form of intent” (p. 125 of reopened inquest finding, October 12, 2017).

The judge then continued: “Rodrigues placed himself on the scene [my emphasis] as a party to the cover up to conceal truth. He thereby prima facie, by his conduct became an accessory after the fact of murder” (p 125). The judge also noted in his findings that “Rodrigues, on his own version [sic], participated in the cover up to conceal the crime as an accessary [sic] after the fact ...He should accordingly be investigated with a view to his prosecution” (p 126).

The significance of the phrase “Rodrigues placed himself on the scene” is that Judge Mothle did not accept any of Rodrigues’ testimony and moreover decided to accept evidence from three witnesses (46 years’ later) that the time of Timol’s fall to the ground had been in the morning not the afternoon, and despite then district surgeon Vernon Kemp having declared Timol dead at 16h00. In other words, to put it bluntly, Judge Mothle appears to have been of the view that Rodrigues made up everything.

Other important findings made by Judge Mothle are similarly questionable – such as, for example and most importantly, his unquestioning acceptance of the “revised” forensic evidence, on which he based his view that Timol was so badly injured he could not possibly have physically propelled himself out of the window.

The problem here, is that the two forensic pathologists who gave evidence at the second inquest not only contradicted each other on certain key points, but their claims of severe pre-fall injuries stood completely at odds with the concessions made by the family’s own expert witness and legal team at the first inquest. 

This was just one example of the way in which dubious and sometimes completely false claims made their way, undigested, through the second inquest process. The central reason for this was that there was no strenuous cross-examination or testing of such evidence the second time around. Faced now by a much more experienced legal team, headed by Jaap Cilliers SC, things could be very different for the state.

At any rate, the question is this: Why, if the state’s case is predicated on the findings of the re-opened inquest, is the state involving itself, by way of a murder charge, in an apparent attempt to squeeze Rodrigues into (possibly) admitting perjury, or having a perjury charge proved against him?

This smacks of bullying. And, although one feels unhappy about accusing the NPA and eminent prosecutor JT “Torie” Pretorius SC of such a thing, it also suggests the state is proceeding to court with what seems like a male fide (bad faith) or “fraudulent” case.

Footnotes:

[1] Telephone calls on March 22 to the attorneys of record on the “heads,” Mkhonto & Ngwenya, Pretoria, were not answered; and attempts to find someone aware of the matter and willing to discuss it, at the LSSA, also on March 22, were similarly unsuccessful. 

[2] The family contended that Haffejee died in similar circumstances to Timol and therefore that its involvement was appropriate.