The South African Coalition for Transitional Justice (SACTJ) notes with deep concern the decision by the National Prosecuting Authority (NPA) that it does not intend to pursue charges against two apartheid Security Branch police officers, Seth Sons and Neville Els, implicated in the torture and murder of Ahmed Timol in 1971. Judge Billy Mothle ruled in the Gauteng High Court in October 2017 that Timol was murdered and that Els and Sons be investigated for misleading the court and that both should be charged with perjury. They were found to have lied under oath during the reopened inquest indicating that they had no knowledge of the torture of detainees and had only learnt of the assaults from reports in the media. The NPA has decided not to prosecute them on what seems to be spurious grounds.
This reopened inquest presented an important window for truth recovery and justice for Timol's family who battled since 2003 to reopen the case in the face of years of inaction by the NPA. This case also has great significance for the families of victims of unresolved cases of torture and murder during the apartheid period, and whose cases have been neglected for many years. The Timol case is significant as it has opened up an opportunity for the families to learn about what happened to loved ones and finally begin the process of healing and closure. This decision is deeply disconcerting as it suggests that the NPA has once again lost the appetite to pursue justice in the name of victims.
These cases represent an important unresolved legacy of South Africa's Truth and Reconciliation Commission. There were many apartheid perpetrators who did not come forward to apply for amnesty or who were unwilling to disclose the truth and who came forward but were denied amnesty as they had not made full disclosure or told the truth. The families of their victims have been waiting patiently for justice to take its course. Even though the TRC presented the NPA with over 300 cases that deserved further investigation and potential prosecution, hardly any have been pursued.
The NPA has a constitutional obligation to pursue such cases and has repeatedly neglected this duty largely due to political interference as stated in court papers explaining its failure to act. Victims' families have had to pursue justice without state assistance. The decision to now drop criminal charges in a case where a judge has explicitly instructed such prosecution presents a new low point in the NPA's treatment of victims of human rights violations.
The NPA's reasons for dropping charges included: "Factors such as the passage of time – 46 years at the time of their evidence – [and] their advanced ages – 80 and 82 years – place the State in a difficult position to prove that they are deliberately lying. Both Messrs Els and Sons did not testify in the original inquest proceedings in June 1972 or made statements then, and thus had to rely on their memories."
These arguments are manifestly spurious, as the Supreme Court of Appeals (SCA) in South Africa upheld the conviction of Robert Hewitt, the professional tennis player for the rape of two young girls, crimes that had been perpetrated in the 1980s. Hewitt was convicted and sentenced 37 years later when he was 75 years old. The SCA held regarding his age "that whilst the courts have considered oldness as a mitigating factor, it is certainly not a bar to a sentence of imprisonment." The Full Bench in the Rodrigues matter in dealing with Joao Rodrigues's contention that he was old and infirm and that his memory was suspect reviewed the jurisprudence dealing with age and concluded that "age and infirmity are not grounds upon which the applicant can singularly rely on as a form of prejudice. These are grounds which, generally, a trial court must consider at sentencing."
If allowed to stand, these arguments will undermine the cause of justice for other outstanding cases such as those of the Cradock 4, the PEBCO case, Simelane, Bambo and many others which are before the NPA.
After many years of blatant political interference in the operations of the NPA, those hoping for justice for apartheid-era victims welcomed the appointment of the new National Director of Public Prosecutions, Adv Shamila Batohi, and her commitment to pursue justice in the public interest. The latest actions of the NPA, however, speak louder than words.
The SACTJ members fought against the state's attempt to introduce a back door amnesty for apartheid-era abuses in the form of special political pardons that side-lined victims from the process. In that struggle, political leaders and justice officials failed to take the rights of victims to heart, and it was only after litigation that the Constitutional Court ruled in 2010 that victims' participation could not be ignored. We are saddened to observe that the state still appears to be more beholden to political agendas than the rights of victims. We want to remind the state that as long as the apartheid perpetrators of crimes against humanity are allowed to escape justice there can be no reconciliation and no peace. The unpunished injustices of the past devalue the sacrifices that were made and undermines the foundations on which our democracy is built.
We therefore call on the NPA to:
- review the decision not to press charges as directed by Judge Mothle against Seth Sons and Neville Els and to indict them for perjury and;
- identify and investigate other security branch officials' who have been implicated in the murder of Neil Agget, and other apartheid-era victims and indict under the crime of apartheid;
- develop a clear plan for how it will pursue prosecutions in relation to cases that emerged from the TRC investigations and findings, and consult with relevant stakeholders in developing this framework;
- account to families of victims who have been left in the dark about progress on their cases.
The members of the South African Coalition for Transitional Justice are: Centre for Applied Legal Studies, Centre for the Study of Violence and Reconciliation, Foundation for Human Rights, Human Rights Media Centre, Institute for Justice and Reconciliation, Khulumani Support Group, Open Secrets, South African History Archives, Trauma Centre for Survivors of Violence and Torture, and Violence Prevention Agency
For further information, please contact:
Hugo van der Merwe, Centre for the Study of Violence and Reconciliation: +27-825700744
Shirley Gunn, Human Rights Media Centre: +27 824509276
Dr. Hugo van der Merwe is the Director of Research, Knowledge and Learning at the Centre for the Study of Violence and Reconciliation. Since joining CSVR in 1997, he has developed and managed numerous research projects evaluating the work and impact of the South African Truth and Reconciliation Commission and managed various research, advocacy and intervention projects relating to transitional justice in South Africa and on the African continent.