Pretoria - Former security policeman Joao Rodrigues will on Thursday face a full bench - three judges - at the Johannesburg High Court in a desperate attempt not to stand trial for the murder of Ahmed Timol in 1997.
The now 80-year-old is asking the court for a permanent stay of prosecution.
Rodrigues objected throughout his affidavit to the fact that he has been charged with murder as the reopened inquest court made no explicit finding that he murdered Timol.
But Judge Billy Mothle concluded that Timol did not commit suicide when he fell to his death from the 10th floor of the notorious John Vorster Square building in Johannesburg. It was found that he was murdered.
The judge recommended that Rodrigues be charged as he did not play open cards with the court during his evidence.
He was the last person to have seen Timol alive before he had plunged to his death.
His nephew, Imtiaz Cajee, said when Rodrigues testified before Judge Mothle, he presented himself as a naive and insignificant administrative clerk who happened to be in the wrong place at the wrong time when he witnessed Timol’s “suicide.”
Judge Mothle dismissed him as a liar when he overturned the 1972 suicide finding and replaced it with one of murder.
Cajee said when Rodrigues faces the court on Thursday for a permanent stay of prosecution, he will be carrying on his shoulders the hopes and fears of hundreds or thousands of surviving policemen, soldiers and politicians who have until now not been held accountable for apartheid crimes.
“Prosecutors will admit they failed to do their work regarding apartheid-era crimes due to political interference. This, while Rodrigues will argue that the National Prosecuting Authority’s failure to prosecute him for so long, renders his prosecution unfair,” Cajee said.
He said at issue during the proceedings is not Rodrigues’ innocence or guilt. “At issue is the State’s right to put him on trial.”
Cajee said if Rodrigues succeeded in his application, it could mean a “get-out-of jail-free card” to all who broke the law to uphold apartheid.
Cajee said the Truth and Reconciliation Commission (TRC) in 1999 submitted a report to government containing a series of findings and recommendations to bring the amnesty process to conclusion. This included that about 300 cases required further investigations and possibly prosecutions. These were cases for which perpetrators either did not apply for amnesty or had their amnesty refused. Among these cases was the murder of Timol in police detention.
Nearly 20 years later, only two of these cases - Timol and the disappearance and possible murder of Nokuthula Simelane - have made it to court.
“Should Rodrigues succeed in his application for permanent stay of prosecution, it will kill the hopes of those who have patiently awaited justice for decades, and destroy the integrity of the TRC,” Cajee said.