Pretoria – Aparthedi-era police officer João Rodrigues, who is facing a charge of murder related to the death of Ahmed Timol nearly 50 years ago, has lost his legal bid for a stay of prosecution.
The Supreme Court of Appeal yesterday dismissed an appeal by Rodrigues in which he asked that he did not have to face his Johannesburg High Court trial.
The issue before the Supreme Court was whether a lengthy delay in commencing criminal prosecution of charges, including murder, allegedly caused by political interference, caused him prejudice and justified a permanent stay of prosecution.
He is facing a charge of murder and defeating and/or obstructing the administration of justice.
The murder charge relates to the death of Timol at the then John Vorster Square police station in October 1971.
Rodrigues has not yet pleaded in the criminal trial. He earlier applied to the high court for a permanent stay of prosecution on the charge of murder.
He argued that it was unfair to charge him 47 years after Timol’s death. He further argued that the reason for the delay in not prosecuting him was a deliberate decision of the National Prosecuting Authority because of the interference by the executive and the Presidency.
Three judges of the high court dismissed the application, and refused leave to appeal. Rodrigues then brought an application for leave to appeal in the Supreme Court.
The Southern Africa Litigation Centre and certain former commissioners of the Truth and Reconciliation Commission (TRC) were admitted in the proceedings as friends of the court.
His application was brought on the basis that the high court erred in concluding that the delay in bringing the prosecution would not taint the fairness of the trial and violate his right to a fair trial in terms of the Constitution.
According to Rodrigues, he was being prosecuted for an improper motive, which included political interference.
He argued that a substantial number of further prosecutions of similar cases involving alleged offences perpetrated during the apartheid era by police officers, who, like him, did not seek amnesty for the offences from the TRC, would follow in future.
The majority judgment of the Supreme Court held that the issue of the alleged political interference by the executive and the president in the prosecution of such crimes, and its ongoing impact and relevance for prosecutions that may still be instituted in future, was relevant.
The judges said there was simply no evidence showing how the political interference impacted on factors relating to whether the substantial fairness of the trial was tainted.
They found that there was no evidence that the 47 years pre-trial delay would taint the overall fairness of the trial.
Another ground on which Rodrigues felt that he should not be prosecuted was his advanced age of 82. But the SCA said that old age and infirmity would be relevant at the sentencing stage and were not grounds upon which he could claim that he was being prejudiced if he was not granted a permanent stay of prosecution.
In turning down his appeal, they said the trial court would be best suited to deal with any issue of potential prejudice.
Judge Azhar Cachalia, meanwhile, wrote a minority judgment, in which he disagreed that the appeal should have been entertained in the first place. He said there were no compelling reasons to entertain the appeal.
Rodrigues has appeared several times in the Johannesburg High Court regarding the murder charge, but matters have been delayed time and again due to his applications for a stay of prosecution.
He is facing the music after Gauteng High Court, Pretoria Judge Billy Mothle ruled in October 2017 that Timol was murdered and that several of the apartheid SAPS had a case to answer to.
Rodrigues is the first to stand trial after Timol tumbled out of a 10th floor window of the then notorious police station, now known as Johannesburg Central police station, nearly five decades ago.
He was one of the officers who was in the room at the time that Timol was detained by the officials.
However, he told the court earlier that he knew nothing about Timol’s death.
Credit IOL