Timol family advocate Howard Varney and Imtiaz Cajee, nephew of Ahmed Timol, at the high court in Pretoria. Picture: Thobile Mathonsi /ANA
Timol family advocate Howard Varney and Imtiaz Cajee, nephew of Ahmed Timol, at the high court in Pretoria. Picture: Thobile Mathonsi /ANA

An open letter to the NDPP Shamila Batohi: Investigate TRC cases

By Imtiaz Cajee Time of article published Feb 18, 2020

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Dear NDPP,

As you are well aware, the fight for justice for the murder of my Uncle Ahmed Timol is an integral part of my life. The reversal of the 1972 inquest findings has inspired me to assist many other families seeking a similar outcome.

I hereby wish to draw your attention to the ruling of the South Gauteng Full Bench, dated 03 June 2019 (Case number 76755/2018, Joao Roderigues vs The National Director of Public Prosecutions of South Africa and eight others). The ruling stemmed from the criminal case which emanated from the death of my uncle, Ahmed Timol.

The Full Bench dismissed the application of Mr Roderigues who applied for a permanent stay of prosecution emanating from the lengthy delay in prosecuting Mr Roderigues.

The court was scathing in its judgment:

1.     At paragraph (57) held that “whilst it was manifestly clear that political interference materially affected the NPA to properly deal with the TRC cases in that the resources that were necessary to conduct proper investigations were not forthcoming, the NPA cannot, as it seeks to do, portray itself purely as a victim of the political machinations of the time. Whatever form the political interference took, the NPA was enjoined in terms of both its constitutional and legal responsibilities to act on behalf of society and protect the public interest.”

2.     At paragraph 60 it held that “in these circumstances it must follow that the NPA has a duty to assert its authority and independence and resist political interference. It cannot be acceptable for it to have simply allowed, as it did, the manipulation of the criminal justice system in the serious manner in which it occurred.”

3.     At paragraph 64 it held that “...society as a whole had an ongoing interest in the work of the TRC and the follow up that the government committed itself to. Parliament, which ultimately represents the legislative authority of the state had a right to know when the letter and spirit of legislation that it had passed was being deliberately undermined. None of this occurred and the NPA must accordingly accept the moral and legal consequences of this most serious omission and dereliction of duty on its part.”

4.     At paragraph 65 it held that “it is also for these reasons that conduct of the relevant officials and others outside of the NPA at the time must be brought to the attention of the National Director of Public Prosecutions for her consideration and in particular to consider whether any action in terms of Section 41(1) of the NPA Act is warranted.

Finally, there must be public assurance from both the Executive and the NPA that the kind of political interference that occurred in the TRC cases will never occur again. In this regard, they should indicate the measures, including checks and balances, which will be put in place to prevent a recurrence of these unacceptable breaches of the Constitution.

NDPP, you would agree with me that the above judgment handed down on 3 June 2019 was scathing and serve as an indictment on the NPA. 

I am unaware of the NPA and Executive offering any public assurance as per the above judgment, nor any public comments on this matter.

This public offering would have sent a clear message to the citizens of the country that the NPA and Executive will be investigating the conduct of those officials that failed to execute their duties in investigating and prosecuting the more than 300 TRC cases. An acknowledgment would have also set an important precedent in reminding the country that this behaviour is unacceptable and would not be tolerated.

Apartheid-era victims in the country need the assurance that the NPA and Executive are committed in helping them restore the dignity of their loved ones killed under the apartheid regime. These families don’t have the capacity and resources to investigate the deaths of their loved ones. This is the mandate of the Priority Crimes Litigation Unit (PCLU) residing in the NPA.

I wish to remind you the NDPP of paragraph 69 of the judgement: “This is not how an organ of the State that is meant to act without fear, favour or prejudice and in the public interest should conduct litigation.”

In view of the current re-opening of the inquest into the death of Dr Neil Aggett, the citizens of the country need to know that the NPA and Executive are committed to investigating all TRC cases. They also need to know that the conduct of those officials of the NPA, as highlighted in the judgment of the full bench, will be investigated and addressed accordingly.

NDPP, you have an opportunity to demonstrate clear intent that the NPA is committed to investigating TRC cases and provide a detailed plan accordingly.

Regards

Imtiaz Cajee

* The views expressed here are not necessarily those of Independent Media.

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