South African Institute of Race Relations, Survey of Race Relations 1971:

It was announced on 28 October that Mr. Ahmed Timol [arrested on the night of the 22 October 1971 with Salim Essop] had died the previous day in a fall from a tenth-floor window at the police headquarters at Jan Vorster Square, Johannesburg. He was a Muslim school teacher, 30 years of age. Brigadier P. Kruger of the Security Police stated that he had committed suicide by jumping through the window.

There were numerous calls, from prominent people through out the country, for a full judicial enquiry. The Prime Minister said that he saw no reason for this, since there would be an inquest. A post mortem was carried out by the Head of Forensic Medicine at the University of the Witwatersrand, who is also officer-in-charge of the Government legal medical laboratories, assisted by an independent pathologist who was present at the request of the Timol family.

Various pleas were made for Mr. Mohammed Timol to be allowed to attend his brother's funeral. At the request of friends, Mr. Dawid de Villiers, managing director of Nasionale Pers, made a direct approach to the Prime Minister. But permission was refused. Mr. Timol was buried on 29 October. About 1 200 people, mostly Muslim, but including Hindu and 'people of other racial groups, attended a prayer meeting in his memory.

Major-General C. A. Buys of the C.I.D. announced on 31 October that Mr. Timol had been sitting on a chair. "There was the most relaxed atmosphere one can imagine in such circumstances". Suddenly, Mr. Timol made a dash for the door, was headed off, swerved to the window, and jumped out.

Mr. Mahommed Essop, a 21 -year-old medical student, was detained in Johannesburg on 23 October. His brother said that he was in perfect health at the time. A few days later, a journalist is stated to have told his parents that he was seriously ill in the H. F. Verwoerd Hospital, Pretoria. His father went hastily to this hospital, but the matron in charge of the Indian wards denied any knowledge of his son's presence there.

Mr. Essop senior then brought an urgent application to the Supreme Court for an order on the Commissioner of Police and Colonel P. J. Greyling, restraining them and persons under their control from interrogating, assaulting, or exerting any pressure on his son while he was in detention and asking that he be removed from any gaol hospital where he might be detained and transferred to a public hospital.

The application was made to the Court on 29 October by Mr. I. A. Maisels, Q.C., on Mr. Essop's behalf. In an affidavit, Mr. Essop senior said that he had not been allowed to enter the wards at the H. F. Verwoerd Hospital to see whether his son was there, perhaps under another name. He questioned people coming out, who said that there was a man there under police guard. He was (old that this man had head and chest wounds, and screamed from time to time. Mr. Essop looked through a fanlight and saw his son lying naked on a bed, with bruises and blood clots on his chest and a bandage round his stomach.

Colonel Greyling handed in an affidavit to the effect that on 26 October he had noticed that Mr. Mahommed Essop was unwell. He had asked the Chief District Surgeon from Pretoria to examine him. Mr. Essop had not been interrogated since then.

The Chief District Surgeon stated that he saw Mr. Essop at Jan Vorster Square, and decided to call in a neuro-surgeon, who diagnosed a condition of hysteria. There were scratches on his chest which he might have inflicted upon himself, while in this condition. No obvious signs of head or other chest injuries were apparent. On 27 October, Mr. Essop was transferred to the H. F. Verwoerd Hospital, where he was examined by a physician and a neurologist. They confirmed the diagnosis, but added that they could not rule out simulation of the condition of hysteria.

X-rays were taken of Mr. Essop's head and chest, and he was then transferred to a prison hospital. The neurologist stated that the X-rays showed no signs of abnormality.

On 29 October the judge who heard the application, Mr. Justice Margo, granted an interim interdict restraining the police from interrogating Mr. Essop in a manner other than that prescribed or permitted by law, or applying any undue or unlawful pressure on him. He made a rule nisi incorporating this interdict, the return date of which was 7 December. He ordered the matron of the hospital to be subpoenaed to appear in court on this date.

The respondents were ordered to pay the costs.

The judge made two suggestions to the authorities: that a full investigation be made into Mr. Essop's case, in view of public disquiet; and that private doctors of the parents' choice be permitted to examine the young man. The authorities ignored both these suggestions, and an official said that the state was not obliged to issue any bulletin on Mr. Essop's condition.

In an article contributed to the Rand Daily Mail on 3 November, Professor John Dugard of the School of Law at the University of the Witwatersrand pointed out that Mr. Justice Margo had made these points in the form of suggestions: in terms of the Terrorism Act a judge was not empowered to write such aspects into an order against the security police or the Minister. Nevertheless, Professor Dugard said, this was the first of several applications for a temporary interdict under Section 6 of the Terrorism Act that had succeeded.

The detentions, and the events relating to Mr. Timol and Mr. Essop, led to a country-wide wave of protests against the Terrorism Act and the wide powers of the security police. There were many calls for a judicial enquiry into all aspects of detentions, for the repeal of Section 6 of the Terrorism Act, and for the repeal of the Act in 1010. Among those making such pleas were the Cape, Johannesburg, and Free State Bar Councils and the Society of Advocates of Natal, besides a number of the churches and of prominent voluntary organizations. A large number of people decided to adopt Mr. Wrankmore's earlier suggestion, undertaking to fast. Indian leaders declared 10 November would be regarded as a national day of mourning in sympathy for South Africa's political prisoners.

South African Institute of Race Relations, Survey of Race Relations 1972:

INQUEST FOLLOWING THE DEATH OF MR. A. E. TIMOL

The death of Mr. Ahmed Essop Timol, one of the detainees, was described on page 91 of the Issue of this Survey for 1971.

He was alleged by the police to have jumped through a tenth floor window at the police headquarters at Jan Vorster Square, Johannesburg. where he had been taken for interrogation. There were numerous calls for a full judicial enquiry into his death and into the methods of interrogation used by the Security police, but the Prime Minister said he saw no reason for this, since there would be an inquest. A post mortem was carried out by a Government omcial assisted by an independent pathologist who was present at the request of the Timol family.

After some delay occasioned by a dispute in - the Supreme Court as to the family's right of access to certain documents. The inquest opened in a magistrate's court at the end of April.

Statements allegedly written by Mr. Timol during the three days before his death were handed in by the police as exhibits. He is reporteded to have said that during January 1970 he received training, at the home of Mr. Jack Hodgson in London, in secret writing and codes, using an explosive device in order to scatter leaflets from a container, and other matters. Stephanie Kemp gave him theoretical training in Communist doctrines. He was then sent to South Africa to recruit members and establish a group. Members of the Communist party in London had A.N C. pamphlets printed for distribution in South Africa. They also sent him draft copy, in code, for a communist pamphlet Inkululeko, which he assembled, typed, and cyclostyled.

It was alleged that Mr. Timol had been arrested, together with Mr. Mohamed Essop, when the car in which they were driving was stopped by the Security Police in Johannesburg in the early hours of 23 October. A large number of copies of Inkululeko and A.N.C. leaflets, together with documents bearing secret texts, had been found by the police in the boot of the car: some of the secret messages. deciphered by the police, were letters from "Stephanie".

After a lengthy hearing, the presiding magistrate announced his findings on 22 June7. He found that Mr. Timol had committed suicide, and that no-one was to blame for his death. A document found in Mr. Timol's possession, which formed part of the court record, instructed members of the Communist Party "to harass the enemy", to resort to civil and criminal actions, to see to it that these received as much publicity as possible, and to commit suicide rather than to betray the Communist Party.

He had to accept that Mr. Timol was familiar with these instructions, the magistrate said. Mr. Timol must have realized that any information he gave might implicate others. There was no reason to doubt the evidence of police witnesses that Mr. Timol had not been assaulted by the police.

The magistrate recommended that future detainees under the Terrorism Act should be examined by a district surgeon as soon as possible after their arrest. This might avoid the necessity for future long inquiries, and might save the police unnecessary embarrassment.

Mr. Timol's parents instituted an action for damages against the Minister of Police and the head of the Security Police, in the sum of R10 000. The outcome has not been reported at the time of writing.

ORDER AGAINST SECURITY POLICE REGARDING MR. M. S. ESSOP

Also mentioned in last year's Survey (page 92) was an interim interdict, issued by Mr. Justice Margo, restraining the police from interrogating Mr. Mohamed Salim Essop in any manner than that prescribed or permitted by law, or applying any undue or unlawful pressure on him. He had been arrested in Johannesburg with Mr. Timol early on the morning of 23 October, and was, allegedly, examined by the Chief District Surgeon from Pretoria three days later, at the request of the police. A neuro-surgeon was consulted, who diagnosed a condition of hysteria.

Mr. Essop was then transferred to a public hospital in Pretoria and examined by a physician and a neurologist, who confirmed the diagnosis but added that they could not rule out simulation of the condition of hysteria. Mr. Essop was then transferred to a prison hospital. His father had heard from a journalist that he was in the public hospital and went there immediately, but his son's presence was denied. However, he saw his son through a fanlight, gaining the impression that he was seriously ill. The father then made urgent application to the Supreme Court for an order against the police.

On the return date, a Full Bench of the Supreme Court in Pretoria confirmed the interim order against the security police restraining them from interrogating Mr. Essop unlawfully or applying unlawful pressure on him. The two judges are reporteded to have considered that Mr. Essop had probably lapsed into a condition of hysteria because of fear of the police; but they were unable to question him because he was being held incommunicado. Notice of appeal was lodged by the Commissioner of Police and the head of the Security Police. Mr. Essop senior instituted an action to claim damages amounting to R10 000 from the police.

PROSECUTION OF MLSSRS. ESSOP, MOODLEY, AND ESSAK AND MRS.

After preliminary appearances before magistrates, Mr. Mohamed Essop, Mr. Indhrasen Moodley, Mr. Yussaf Essak, and Mrs. Amina Desai appeared in the Supreme Court, Pretoria, during June, charged under the Terrorism Act. with two alternative charges under the Suppression of Communism Act. These four people had all been arrested during October 1971 and were held in solitary confinement until charged. Thereafter. Mrs. Desai was allowed conditional bail but the men remained in custody.

The substance of the main count was that they, jointly or severally, had unlawfully endangered the maintenance of law and order by conspiring with one another and/or the S.A. Communist Party and/or Mr. Ahmed Timol and/or persons unknown to the State, to promote the cause and policies Of one or both of the banned A-N.C. and S.A. Communist Party.

Counsel for the State described the arrest of Mr. Timol and Mr. Essop and the discovery in the boot of the car in which they were travelling of many copies of A.N.C. leaflets and of the communist pamphlet Inkululeko. There were also documents with secret texts, a typed document and a secret message implicating certain of the accused, and a list of 583 names and addresses of people. Later, the police had found a list of names and addresses and some envelopes in Mr. Essop's room.

Mr. Essop said in evidence that he and Mr. Timol had been to a party. He knew nothing of the pamphlets in the boot of the car. Mr. Timol had paid him to type the names and addresses on the envelopes, but in fact he had not done so. He was told that they were needed for a mail order business, mainly to do with soft goods. being conducted by Mr. Timol. Counsel for the State stated that it should have been clear from the first page of the list that the envelopes were not required for a soft goods business; but Mr. Essop maintained that he had merely glanced at the list before putting it aside. He was totally opposed to communism and violence, he said.

The case against Mr. Essack was that his fingerprints had been found on three envelopes sent through the post containing copies of Inkululeko. He denied any complicity in the production or distribution of this pamphlet, stating that he had twice posted envelopes for Mr. Timol, who said they were in connection with his mail-order business.

The State produced evidence that Mr. Moodley had handed copies of Inkluleko to two people in Durban. Mr. Moodley testified that he and his wife had received them through the post. He had merely glanced at them. He handed them to the two witnesses to demonstrate that the S.A. Communist Party was not inactive, as they had thought. He agreed that he had asked the witnesses to destroy the pamphlets.

The State alleged that Mrs. Desai, a widow living alone, had allowed Mr. Timol to store materials in her home, and had experimented with the preparation of gunpowder. In her pantry were bottles containing substances required to decipher secret letters.

In her yard was a plastic bucket with a residue of material which, on expert evidence, indicated that gunpowder had been exploded in the bucket. Her typewriter had been used to type envelopes found to contain A.N.C.

Mrs. Desai denied any knowledge of these matters. Mr. Timol was a regular visitor, "one of the family", she said, and had the full run of her house. She was out a lot as she ran a business. Mr. Timol had borrowed her car on the night he was arrested. She had been his innocent dupe, she maintained. The bottles in her pantry had belonged to her deceased sister: she had herself removed them from a carton in an outhouse.

Among those who gave evidence for the State was Mr. Dinesh Naik, who had been in detention under the Terrorism Act and, subsequently, Section 215 bis of the Criminal Procedure Act.

After a month's adjournment of the court, judgment was given on 30 October. The judge, Mr. Justice Snyman, convicted all four accused on the main count, under the Terrorism Act.

The explanations of their actions that they had advanced were unlikely, he found. He stated that it was unnecessary for the prosecution to establish that the accused had been in direct communication with one another. Where someone conspired with an organization to commit an offence, he became a conspirator with every person who acted in the same way.

In the course of his judgment, the judge said that several of the State witnesses had been accomplices. Even where they were not, they had been detained and interrogated by the police, sometimes for long periods. The court had to approach their evidence with caution.

Mr. Justice Snyman said, "It became obvious to me during the trial that as a result of these interrogations of the accused and some State witnesses a good deal of information and also statements were obtained by the police which, by reason of the law and rules of evidence, the State was prevented from placing before me". Under the Judges' rules of evidence, an accused person had to be warned and informed of his rights before he could be questioned by the police. Any confession made by him had to be freely and voluntarily made. "The position which has. thus come about in relation to the Terrorism Act is that while the legislature has given extraordinary powers to the police to extract information from a terrorist or a person withholding information relating to terrorism, prosecuting counsel are prevented from placing such evidence before the court." This made a most frustrating position for the prosecutor, and the trial court's position was also unsatisfactory. A danger of a miscarriage of justice was involved, both from the point of view of the State and the accused.

In view of the fact that the three young male accused had been trapped into a conspiracy by Mr. Timol, and in view of Mrs. Desai's age and previous exemplary life, the judge sentenced all four to the minimum permissible sentence of five years. He expressed the wish that they would be enabled to study while in prison. People had the right to agitate for laws to which they were opposed to be changed, the judge stressed, but this must be done in a lawful manner. Application for leave to appeal was made, but was refused. Mrs. Desai was, however, granted bail, set at R 10 000, pending a petition to the Chief Justice.

South African Institute of Race Relations, Survey of Race Relations 1973:

APPEALS ARISING FROM PAST TRIALS

Messrs. Essack and Moodley The trial and conviction of Messrs. Essack, Moodley, and Essop, and Mrs. Desai was described on page 100 of last year's Survey. All had been found guilty of charges under the Terrorism Act, and each was sentenced to five years' imprisonment. Mrs. Desai and Mr. Essop were refused leave to appeal against their convictions, but Mr. Essack and Mr. Moodley were allowed to do so. During February they were granted bail of R5 000 each, and ordered to report to the police twice daily.

Their appeal was heard by three judges on 28 September. Mr. Justice Muller found that the State had failed to prove the allegations against the two men. He upheld their appeals. Mr. Justice Trollip concurred, thus the appeal succeeded, although Mr. Justice Rumpff gave a dissenting Judgment.

ENDS