AHMED TIMOL: THE PROSECUTION OF JAN RODRIGUES (VI) James Myburgh & Jeremy Gordin on the deeply flawed basis of the NPA's murder case against the former police clerk

Ahmed Timol: The prosecution of Jan Rodrigues (VI)

29 May 2019 James Myburgh & Jeremy Gordin on the deeply flawed basis of the NPA's murder case against the former police clerk

1. On October 12, 2017 Judge Billy Mothle found at the end of the reopened (or second) inquest into the 1971 death of Ahmed Timol that Timol’s death “was brought about by an act of having been pushed from the 10th floor or roof of (then) John Vorster Square to fall to the ground” and that there existed prima facie evidence implicating Timol’s two interrogators, Captains Johannes Zacharias van Niekerk and Johannes Hendrik Gloy (both dead), for being responsible for this. The judge also noted that Joao “Jan” Anastacia Rodrigues, now 80, had “on his own version, participated in the cover-up to conceal the crime of murder as an accessary [sic] after the fact, and went on to commit perjury by presenting contradictory evidence before the 1972 and 2017 inquests. He should accordingly be investigated with a view to his prosecution.” Although Rodrigues was implicated as an “accessory” and/or as a perjurer, he was, on 30 July 2018, charged with murder by the National Prosecuting Authority. Since then, on March 28, 2019, Rodrigues has applied for a permanent stay of prosecution before a full bench of the Gauteng high court. As of today, no judgment has been issued. The core of the state’s case may be said to have been presented by Advocate Torie Pretorius in his replying affidavit to Rodrigues’ stay of prosecution application. The state’s case avers that Timol “sustained at least 35 noted injuries, 27 of which were sustained” before the death fall. The trial court would now decide whether Timol, “with extensive bruising, a depressed skull fracture, a fractured left jaw, a dislocated left ankle” was able to rush to the window, open it, and jump out, as Rodrigues has claimed. The theme of almost all the reporting and commentary on this case has been one of impatience at justice long denied. There has been very little critical scrutiny of the underlying basis for the prosecution. This is odd, for as we shall try to explain, there is a great deal about the version accepted by Judge Mothle that does not make particular sense. 2. On the late evening of Friday 22 October 1971 two Indian men, travelling in a light-yellow Ford Anglia, were stopped at a routine police road block on Fuel Road in Coronationville, Johannesburg. In the boot of the car the police discovered hundreds of banned African National Congress and South African Communist Party leaflets, as well as copies of extensive communications with the SACP in London. The two men – Ahmed Timol, a teacher and underground SACP operative, and Salim Essop, a third-year medical student at Wits – were handed over to the Security Police and taken to police headquarters at John Vorster Square. The correspondence between Timol and his handlers in London was an intelligence windfall because it provided detailed descriptions of how the Party communicated with their operatives in South Africa. It also contained the names of many in the tightly knit Roodepoort Indian community that Timol had told the SACP he would like to draw into illegal work, or recruit into the Party, including Essop. In almost all these cases Timol had not actually done so. The Security Police believed however that they had uncovered a secret Communist Party ring in the Indian community, one responsible for distributing often highly inflammatory propaganda aimed at inciting the black population to revolt violently against the white minority in South Africa. Over the next few days the Security Police round-

A photograph taken by the police photographer of Jan Rodrigues standing by the window, with his back to the camera, on the evening of the day Ahmed Timol allegedly jumped to his death.

(Continued from page 112)

ed up those named in the letters. They then began applying their usual interrogation techniques on those detained, most of whom were actually innocents. The Security Police were so convinced of the detainees’ guilt that denials of complicity were disbelieved and the torture rapidly escalated. By the Sunday morning one of those detained, Kantilal Naik, had lost the use of his hands after being tied up and suspended from his arms and legs for an hour-and-a-half. On Tuesday morning Essop had completely collapsed on the floor of an interrogation room and had to be hospitalised. On Wednesday afternoon Timol himself plunged to his death from the 10th floor of John Vorster Square. At the inquest held the following year Magistrate De Villiers ruled that Ahmed Timol had committed suicide and, dismissing the possibility that torture could have driven him to taking his own life, ruled that no one was to blame for his death. This ruling was a travesty, given that the evidence of Timol’s fellow detainees – all of whom could have spoken about the torture they were subjected to – was excluded by the security laws of the time. Even more absurdly, evidence of Essop’s medical condition at the time of his collapse, already in the public domain, and available to ordinary newspaper readers, could also not be considered. The Security Police witnesses meanwhile lied repeatedly throughout the inquest about how Timol had been treated. They falsely claimed, for instance, that Timol had neither been assaulted after his arrest, nor deprived of any sleep. So, on the one hand, the police said Timol had committed suicide while, on the other, they claimed he had not been tortured. In their efforts to explain why someone under no duress had decided to kill himself, they presented, among other false evidence, a fraudulent SACP document to court to

try and square this circle. At the time their denials of any ill-treatment were widely regarded as deeply unpersuasive, even within the Afrikaner establishment, though it might have suited some to publicly pretend otherwise. 3. Immediately after De Villiers announced his ruling in June 1972 Timol’s parents, Yusuf and Hawa Timol, told a Rand Daily Mail journalist that “we cannot believe our son committed suicide”. Their young relation, Imtiaz Cajee, subsequently fought a long battle to vindicate his late uncle and to demonstrate that Timol had been killed by the Security Police. Over the past few years he was joined in this quest by a group (“the team”) of investigators and human rights lawyers and organisations, including the Legal Resources Centre, Frank Dutton, Advocate Howard Varney, Webber Wentzel and Yasmin Sooka and the Foundation for Human Rights. At the reopened inquest it would have been relatively simple to make the case that Timol’s death was one of induced suicide, the product of inter alia five days of unrelenting interrogation, torture, and sleep deprivation. Proving a case of direct murder, as the team tried to do, was far more complicated: first, the finding from the original autopsy report that Timol had died as the result of injuries sustained in the fall remained incontrovertible. Second, all those named at the first inquest as Timol’s interrogators had died, taking their knowledge of what had actually happened with them to the grave. However, a former clerk from the Security Police, Rodrigues, who was still alive, had testified in 1972 that he had been alone in the room with Timol during his last moments alive, and had seen the detainee propel himself out of the 10th floor office window. His version, to which he stuck at the second inquest, was that he had come to Johannesburg from Pretoria on the afternoon of Wednesday 27th October 1971 with the monthly salary cheques and a file for Timol’s two interrogators on that day, Gloy and Van Niekerk. Rodrigues took these –along with a tray with three cups of coffee for Timol, Gloy and Van Niekerk – into room 1026, and proceeded to wait, standing, for the following 20 minutes. At 3.50 pm Van Niekerk and Gloy then got up to go check on some information and asked Rodrigues to stay with Timol while they did so. Rodrigues told the first inquest that he then sat down on the chair facing Timol (chair "A" below), with the windows to his back: “The Indian asked me if he could go to the toilet. He was sitting on the chair opposite me. We both stood up and I moved to the left around the table. There was a chair in my way [C]. When I looked up, I saw the Indian rushing round the table in the direction of the window. I tried to get around the table, but his chair was in the way [B]. Then I tried to get around the other way and another chair was in the way [A]. The Indian already had the window open and was diving through it. When I tried to grab him, I fell over the chair, I could not get at him.” In making their case the team, led by Varney, wove together a powerful counter-narrative based largely upon “similar fact” and forensic medical evidence. This ran as follows. Essop, with whom Timol had been travelling when caught by the police, was, after his arrest, “subjected to some of the most barbaric forms of torture ever recounted in a South African court. His four days and seventeen hours of torture was vicious, sadistic and unrelenting. By Tuesday morning Essop was in a comatose state and close to death.” On the Tuesday morning, 26th October 1971, he had to be rushed to hospital and his father “had to obtain an urgent court order to restrain the brutality.” The day before his collapse, Essop had seen a “man with a black hood over his head being dragged by two Security Branch members, as he [the man] was unable to walk normally. Essop is certain that this hooded figure was Timol because he was familiar with his physique and height.” As Varney pointed out: If the Security Police tortured Essop to “near death”, why would they “treat the ‘big fish’ [Timol] with kid gloves”? Therefore, Timol must have been “tortured with equal if not greater ferocity than that endured by Essop”. Another fellow detainee, Dr Dilshad Jetham, testified that she thought she had heard Ahmed Timol screaming on the evenings of the Sunday, Monday and Tuesday. “As the night of Tuesday 26 October 1971 wore on, Timol’s screams grew louder and became more desperate. He was shouting and crying, begging his torturers to stop.” According to Jetham, at dawn of Wednesday 27 October 1971, “Timol’s screams suddenly stopped”, followed by a great deal of scurrying about. This was at exactly 4am in the morning. Two forensic pathologists, Dr Shakeera Holland, a senior Wits academic and the daughter of the renowned haematologist and FHR board member, Dr Errol Holland, and Professor Steve Naidoo, a former head of the Department of Forensic Medi-

(Continued from page 114)

cine at UKZN, testified on behalf of the family. Holland said that several severe injuries recorded in the original autopsy report were “not consistent with a fall from height”. These, she said, called “into question the original inquest [finding] that the manner of death was ‘suicide’, therefore the finding must be challenged”. In his report and oral

testimony, Dr Naidoo reached a similar conclusion, albeit on a somewhat different basis. The forensic pathologists testified (variously) that certain hyoid bone, skull, jaw, ankle, and face injuries were also consistent with blows from a blunt object. Such evidence was devastating to Rodrigues’ version. As Varney and Pretorius put it to him, under cross-examination, how could he say Timol rushed to the window, given his severely dislocated ankle? How could he claim that Timol drank coffee when he had a broken jaw? How could he say he saw no visible injuries given that Timol’s face had been smashed with blunt objects? Rodrigues had no answer, other than that he could only speak to what he had seen. “The finding of suicide,” Varney submitted to Judge Mothle in final argument, “rests exclusively on the evidence of Rodrigues whose evidence must be regarded as wholly unreliable. Indeed, the bulk of his evidence before both Inquest Courts was manifestly false.” He argued that by early Wednesday morning Timol had been as “similarly incapacitated” as Essop had been the previous morning, but “probably in a much more serious condition”. Although not dead yet, he was probably unconscious, certainly incapacitated, and unable to talk, drink or eat (due to a fractured skull and jaw) and, in any event, unable to walk unaided due to the severely injured and dislocated ankle already incurred two days before. These severe injuries not only disproved Rodrigues’ account, but also provided the missing motive for the murder. The Security Police had thrown Timol from the building several hours later, Varney suggested, to cover up what they had done and “to avoid the storm of criticism that would follow another ‘Essop’ occurring [with]in 24 hours”. Rodrigues had then been brought in to construct a story for public consumption, and thereby divert scrutiny from the interrogators/ guards directly responsible for the brutal murder. This version was accepted almost in totality by Judge Mothle. For the judge, the opinions of Doctors Holland and Naidoo were devastating to Rodrigues’ version, and to the assertion that Timol committed suicide. As he wrote in his judgment: “The injuries attributed to Timol prior to the fall, in particular on the toes and head, were such that he could not have moved with the alacrity and agility from the chair to the window without being assisted, as described by Rodrigues. Further, Rodrigues should have seen these injuries when, according to his evidence, he sat on a chair across the table opposite and facing Timol.” As noted, the following year Rodrigues was charged for Timol’s brutal murder; and Rodrigues’ lawyers sought to avoid trial by launching a stay of prosecution application. This has been opposed by the state and the human rights establishment. The latter group’s view seems to be that the lack of direct evidence against Rodrigues is more than compensated for by the pure emotional force of this story. His clear guilt could further be demonstrated through inferential reasoning and through exclusion. Rodrigues places himself, and continues to place himself, with Timol in the latter’s last moments alive. His story of the suicide has been disproved by forensic experts, as impossible. If he was not intimately involved in the killing – and was simply an accessory after the fact – he could, quite easily, have come clean by now, given that “being an accessory” has long proscribed. That he has chosen not to do so, points to his deep involvement in the murder. It is little wonder then that Rodrigues opted for a stay of prosecution, rather than have to answer for this murder before a trial court, or that South Africa’s human rights community, and many leading local and international journalists, are baying for his blood. The general sentiment is that the Timol family is not to blame for the fact that justice has been so long delayed, and that legal and factual technicalities that have arisen as a result should not be allowed to get in the way of Rodrigues’ trial, conviction and deserved punishment. This leaves just one question. How much of the story presented at the second inquest was actually true? 4. There is some background that is useful to bear in mind when it comes to the “similar fact” evidence. As the ANC/SACP and others turned towards insurrection and the violent overthrow of the white state in the early 1960s, many of those arrested were brutalised by their interrogators, incurring severe physical injuries. Following the proclamation of 90-day detention without trial law in late June 1964, the Security Police introduced a new technique over the following months. As Bram Fischer described it in a memorandum for the SACP underground: “Batteries of detectives working in shifts, firing salvoes of questions, forced detainees to stand in

one spot without sleep and without sitting down, until they collapsed and agreed to make statements. This new technique is startlingly effective so far as we know, few who have been through this torture have been able to withstand it.” Among the methods used to crack detainees and force them to betray their comrades and “name names” were sleep and sensory deprivation, solitary confinement, humiliating treatment, and the denial of food and drink. As George Bizos SC noted in No One to Blame?, his 1998 account of apartheid-era deaths in detention, with this shift in approach “[t]orture was concentrated less on the body and more on the mind, where the bruises were invisible even to the pathologist’s cold eye. Isolation, sleep deprivation, abuse and comfort in alternating doses, wore down a detainee’s mental defences as surely as an iron fist. And, of course, there was always the threat of physical pain to make the treatment that much more effective.” Where pain was directly inflicted it was done so in ways, such as suffocation and electrocution, that would (generally) not leave any permanent physical marks. When it came to assaults, detainees were punched in the stomach and the chest but slapped in the face, as the jaw breaks easily. Bruises and abrasions could heal, and disappear, and any illegal assault could be denied. The detainee’s release, Bizos noted, inevitably took place after the injuries had healed, he had no witnesses to corroborate his story, and a team of security policemen “would claim how well they had treated the detainee, even to the point that they had spent their own money to buy him meat pies and cold drinks”. These techniques were psychologically shattering, and led to numerous recorded attempted suicides, but they were designed to avoid severe injury, such as broken bones, that would leave inerasable (and un-deniable) physical traces. The detainees arrested at the same time as Timol all describe being subjected to these kinds of Security Police torture and interrogation techniques. No one was beaten with iron bars or hammers or had any bones fractured. What though of Essop? Varney told the inquest that “Essop was brutalised into a coma, within an inch of death”. Pretorius stated that as a “result of the continued and prolonged assault” on Essop “he was admitted to General Hospital and then Hendrik Verwoerd Hospital, near death and in a coma”. And Judge Mothle found that at the time of his hospitalisation Essop was “comatose” and had “severe injuries and was in a critical condition”. Essop’s ill-treatment at the hands of the Security Police was certainly horrific, and it led to his collapse on the floor of the interrogation room on the morning of Tuesday, the 26th of October 1971. However, the description of his having “serious injuries” at the second inquest is not supported by medical evidence of Essop’s condition, which is still lying in the national archives. Essop was examined in John Vorster Square at around 9am by the Chief District Surgeon of Johannesburg, Dr Vernon Kemp. In this initial examination Kemp found Essop in a semi-conscious state and noted bruising on his face. Clearly concerned that his condition was the result of a brain injury caused by a physical assault, Kemp had him immediately taken by stretcher to the Moslem ward of the Non-European Hospital (NEH) in Johannesburg. He then arranged for a leading Johannesburg neurosurgeon, Dr CW Law, to examine him at 11.30am that morning. Law was unable to take a history as Essop was not speaking. He however conducted a careful neurological examination to look for any sign that his condition was the result of an internal brain injury. Essop’s responses to these tests seemed however to be mostly normal. Blood tests and Xrays of his head and chest were also taken at around 12 am and these were all negative, with no fractures detected. In his letter to Dr Kemp on the 26th October, dictated that lunchtime and setting out the results of the examination, Law noted that Essop’s “temperature was normal, the pulse 96 and regular, blood pressure 130/80. Respiration was variable and there was no evidence of cyanosis.” He also documented the following external injuries: “He had bruises below the right eye, in the pinna of the right ear. Scratches were present over the chest. Further bruising was present over the ulnar aspect of the right forearm and below both knees. There was a further bruising over the medial aspect of the left upper arm.” Kemp concluded that Essop was suffering from “severe hysteria”, or what is known today as Conversion Disorder. In his testimony Law said that he had not made a diagnosis of hysteria, but this could not be excluded. He had suggested that a psychiatrist be called in because he did not think that a head injury was responsible for Essop’s condition. Law said that Essop appeared to be dehydrated and possibly in a hypoglycaemic

state and these may have been contributing factors. It was advisable for Essop to be transported to hospital in Pretoria, he said in his letter to Kemp, as “it is obvious he is going to require skilled nursing care, in the form of either feeding per nasal tube, or intravenously.” This was because the nurses were unable to get Essop to eat or drink. The testimony of doctors in Pretoria, more sympathetic to the Security Police, was that they thought Essop could be shamming. The evidence of Kemp and Law was all extracted by the legal team for Essop’s father, led by Isie Maisels QC and Bizos, in his effort to interdict the Security Police from further mistreating his son. The Security Police meanwhile had done their best to try and hide it. In his 1998 book Bizos describes Law as an “honourable man” and Kemp as “honest” and suggested that both could be relied upon to tell the truth once under oath in the witness box. In their judgment handed down on the 25th February 1972, Judges Theron and Marais upheld an earlier temporary interdict, issued by Judge Margo the previous year, and dismissed the claim of simulation deposed to by the police psychiatrist Dr Van Wyk. Theron and Marais ruled: “Taking the history of his condition as deposed to by the medical witnesses, substantially supported by the evidence of the various nursing sisters who saw him on the 26th so ill as to require nasal feeding, we cannot but conclude that on the balance of probability the detainee suffered from the illness termed hysteria, and that this was induced by an assault him while in the custody of the first respondent [the police]. Consequently, in our view, therefore, the provisional order should be confirmed.” The condition of Essop, as described by the doctors and nurses who treated him following his collapse, is a grim testament to the terrifying effects of the Security Police’s interrogation techniques. But their testimony does not ultimately support the team’s thesis. The actual physical injuries recorded by Law and Kemp, bruises and scratch marks, were superficial and not severe. Essop was also not in a coma, nor was he near death. If one compares his mental condition with his physical condition one can see how well practiced the “professionals” of the Security Police had become in using, as Bizos put it in his book, “refined methods” to torment their “helpless captives”, while leaving only superficial external traces, which would soon heal and disappear. 5. Essop’s recorded injuries at the time of his collapse are thus at odds with Timol’s – as described by the forensic pathologists at the second inquest. The great puzzle thrown up by their findings is this: There was a consensus at the first inquest that Timol’s severe and fatal injuries were consistent with the fall and had been sustained at the time of the fall. (This did not preclude the possibility that some were incurred before the fall, but this could not be proved.) As with Essop, there were other older superficial injuries present on the body, bruises and abrasions, which could be timed to either before or shortly after Timol’s arrest some four days before. This was not just the position of the state pathologist Dr Nicholas Schepers but also of Dr Jonathan Gluckman, the independent pathologist employed by the Timol family (and the hero of Bizos’ book). It was also the position, in final argument, of the family’s legal representatives, Maisels and Bizos. The outlier on the forensic pathology at the first inquest was Professor Hieronymous van Praag Koch, the chief district surgeon of Pretoria and a favoured expert witness of the Security Police, who had already blotted his reputation in the Essop case. Koch tried to argue, disingenuously and unsuccessfully, that the older injuries had to have pre-dated Timol’s arrest. In late November 1971 the Methodist Minister Donald Morton had fled South Africa. He had claimed, on arrival in Britain, that people who had seen Timol’s body had spoken of “finger-nails pulled out, the right eye missing, and testicles crushed”. In a short letter to the Observer, published in February 1972, Gluckman noted that “as the independent pathologist present at the autopsy of Mr Timol at the request of his family, it is proper for me to inform you that I observed none of the features described by Mr Morton, who quoted ‘sources that were impeccable’.” These allegations of mutilation later resurfaced when Hawa Timol repeated them at the TRC. In his 1998 book George Bizos wrote that “Gluckman would not have missed something like this and his integrity was beyond question”. In short, the implications of the findings of the second inquest – which, seemingly incomprehensibly, Bizos himself publicly welcomed – were that Gluckman, Maisels, and Bizos, had somehow completely missed a series of severe injuries: a dislocated ankle, broken jaw, and depressed skull fracture, among many others. There are some points that need to be noted about the forensic pathology at the first inquest. While in many respects the first inquest was rigged against the Timol family, there was, as far as can be ascertained, a completely even playing field when it came to the forensic pathology. The autopsy was conducted by Dr NJ Schepers on Friday morning, the 29th October 1971, with Dr Gluckman in attendance. They were equally able