Ti­mol rul­ing ‘just the be­gin­ning’

By dis­avow­ing a 46-year-old lie, the court of­fers a chance at jus­tice for many more

Mail & Guardian - - News - Ra’eesa Pather

money. They’ve made heal­ing take so much longer than it needed to be.”

Nkadi­meng’s sen­ti­ment is much like that of the Ti­mol fam­ily. For the months the Ti­mol in­quest has gone on, the fam­ily has in­sisted on de­mand­ing only the truth. But when for­mer Se­cu­rity Branch of­fi­cers Seth Sons, Joao Ro­drigues and Neville Els claimed they had nei­ther seen tor­ture nor heard of it in po­lice de­ten­tion, the fam­ily said it would de­mand ac­count­abil­ity through prose­cu­tion.

The Sime­lane case has been de­layed. The for­mer se­cu­rity cops are de­mand­ing that the state pay their le­gal fees. But the state is re­sist­ing, with the court still to de­cide. In the mean­time, Sime­lane’s fa­ther has died. His wish was to bury the daugh­ter he lost.

For the Ti­mol fam­ily, and the fam­i­lies of 72 other peo­ple who died in de­ten­tion dur­ing apartheid, prose­cu­tion may now be the only way to un­cover the truth in demo­cratic South Africa.

But for those apartheid po­lice of­fi­cers who re­main close to the old guard, only the prose­cu­tion of the “other side” will make them ac­cept the jus­tice the Ti­mol fam­ily seeks.

Gen­eral Jo­han van der Merwe (81) is among those who have stayed in close con­tact with a net­work of apartheid se­cu­rity po­lice who are still alive. He was the last aparthei­dera na­tional po­lice com­mis­sioner, and is now the vice-chair­per­son of the Foun­da­tion for Equal­ity be­fore the Law, com­pris­ing for­mer se­cu­rity cops seek­ing to avoid prose­cu­tion.

In a state­ment re­leased dur­ing the Ti­mol in­quest, the foun­da­tion said that it would be im­pos­si­ble for the courts to find dif­fer­ently to the orig­i­nal 1972 in­quest that Ti­mol com­mit­ted sui­cide.

Now that Mothle has de­liv­ered his judg­ment, Van der Merwe knows there’s a prose­cu­tion wait­ing to hap­pen. He says the only way those im­pli­cated in Truth and Rec­on­cil­i­a­tion Com­mis­sion-re­lated cases would come for­ward is if the law is ap­plied equally.

“If they pros­e­cute one side, they must pros­e­cute the other,” he said.

Jan Wa­gener is a well-known lawyer in the for­mer se­cu­rity po­lice net­work. He is cur­rently rep­re­sent­ing some of the ex-of­fi­cers ac­cused in the Sime­lane case. Wa­gener be­gan his ca­reer in the apartheid-era state at­tor­ney’s of­fice and worked on the Steve Biko in­quest in 1977.

He still main­tains that the ac­tions of the se­cu­rity po­lice were jus­ti­fied. “We ba­si­cally had in our coun­try what amounted to a civil war. There were two sides to that war. Crimes were com­mit­ted on both sides of the war,” Wa­gener said.

“I rep­re­sented peo­ple who were very, very un­happy be­cause their loved ones were mur­dered by ANC ter­ror­ists,” he said.

In the Sime­lane case, there are two af­fi­davits — from ad­vo­cate An­ton Ack­er­mann, for­mer head of the NPA unit for TRC-re­lated crimes, and from for­mer pros­e­cu­tions head Vusi Pikoli — that claim the NPA faced po­lit­i­cal in­ter­fer­ence when it tried to pros­e­cute apartheid-era crimes. Pikoli said this was owed to fears that ANC lead­ers would also be pros­e­cuted. The TRC rec­om­mended that 300 peo­ple should face prose­cu­tion for apartheid-era crimes. No more than a hand­ful have been tried.

Ad­vo­cate To­rie Pre­to­rius SC, rep­re­sent­ing the NPA at the Ti­mol in­quest and head of the TRC-re­lated crimes unit, said out­side the court on Thurs­day that the NPA could not re­open all re­lated in­quests, as the Ti­mol fam­ily had re­quested, but it would not close any ei­ther.

Although the NPA has come un­der fire for its slow re­sponse to TRCre­lated crimes, the Ti­mol in­quest may have af­fected fu­ture de­ci­sions. Pre­to­rius told the Mail & Guardian the next in­quest is al­ready be­ing con­sid­ered. “The next one I have to fo­cus on will be Neil Aggett [a med­i­cal doc­tor and ac­tivist who died in cus­tody in 1982]. I have to make a de­ci­sion on that,” Pre­to­rius said.

At court on Thurs­day, fam­i­lies who lost loved ones or de­tainees who were tor­tured by se­cu­rity po­lice cel­e­brated Mothle’s judg­ment. Gadija Chothia, ar­rested for be­ing an as­so­ciate of Ti­mol’s, walked out of the court with the clo­sure she had spent four decades search­ing for.

“I can fi­nally cry,” she said.

Dur­ing the Ti­mol in­quest, for­mer se­cu­rity cop Paul Eras­mus tes­ti­fied against his for­mer col­leagues. He told the M&G he had faced death threats from them be­cause they saw him as a “traitor to the vader­land [fa­ther­land]”.

Pre­to­rius con­firmed the NPA is mon­i­tor­ing the threats and con­sid­er­ing pos­si­ble wit­ness pro­tec­tion for Eras­mus, be­cause his role in an Aggett in­quest would be “cen­tral”.

The Ti­mol fam­ily hopes it has set a prece­dent for many other fam­i­lies, and that this vic­tory is not just theirs. Mo­hammed Ti­mol, Ahmed’s younger brother, has seen his mother cry, be branded as a liar at the TRC and he has en­dured 46 years’ worth of lies about his brother.

“Jus­tice and truth are the most im­por­tant as­pects of democ­racy. This is what Ahmed would have ex­pected if he had lived,” Mo­hammed said.

Vin­di­cated: Although Ahmed Ti­mol’s mother, Hawa (above left), did not live to see jus­tice for her son, his brother Mo­hammed (top right) sees the rul­ing as a vic­tory. Now, Joao Ro­drigues (right) and oth­ers may face prose­cu­tion.

Pho­tos: Ahmed Ti­mol Fam­ily Trust, Del­wyn Verasamy, An­thony Schultz

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