- The SCA has reserved judgment in the leave to appeal application by former apartheid security branch officer Joao Rodrigues.
- Rodrigues was charged with the 1971 murder of anti-apartheid activist Ahmed Timol in police custody.
- A 2017 inquest by Judge Billy Mothle reversed a 1972 inquest which ruled Timol's death as suicide.
Joao Rodrigues, who faces a charge of murdering anti-apartheid activist Ahmed Timol 47 years ago, has argued that the delay in the case was not systemic, but rather deliberate.
Rodrigues’s lawyer, Jaap Cilliers, presented this argument before a virtual sitting of the Supreme Court of Appeal (SCA) on Friday in an application for leave to appeal the dismissal of a permanent stay of prosecution application by the Gauteng High Court last year.
"These respondents (the State) deliberately withheld extremely important facts from the court relating to the reason for the lengthy delay and serious political interference in prosecutions of this nature in their initial answering papers," said Cilliers.
During proceedings, Cilliers also accused the offices of the National Director of Public Prosecutions (NDPP) and the Minister of Justice of misleading the courts.
"They did not disclose the facts of the case. They mislead the court with silence by not allowing the court access to true and material facts; they proceeded with the worst type of conduct. We still don’t have knowledge of the full details on what led to the delay from the minister of justice," he said.
Cilliers argued that prosecution of the case would infringe on Rodrigues’ constitutional right to have the trial begin and conclude without "unreasonable delay" and his right to challenge the evidence effectively.
Inquest into death
Rodrigues, 81, was charged with Timol’s murder in 2018 after a second inquest ruled that Timol's death was not suicide. Timol died in 1971 after falling from the 10th floor of the then John Vorster Square police station, now known as the Johannesburg central police station, where he had been detained.
At the time of Timol’s death, Rodrigues worked as a security branch officer. The inquest, led by Judge Billy Mothle, recommended that Rodrigues be investigated for perjury. Cilliers questioned the "improper" decision to charge Rodrigues with murder despite that not being a recommendation of the inquest.
In its heads of argument the NDPP said in response: "Whilst it is correct that the inquest did not conclude that the applicant unlawfully and intentionally killed Mr Timol, it is the function of the NDPP and not the inquest court to decide based on the available evidence as to how the applicant must be charged," it said.
"The mere fact that the NDPP has decided to charge the applicant with murder does not on its own mean that the prosecution is driven by an improper motive and that there is a basis for a permanent stay of prosecution," they added.
Dawie Joubert SC, who represented the NDDP, argued that the manner in which Rodrigues' application was launched was "ill-thought-through" and that there were other legal avenues to address Rodrigues' concerns while the case continues in trial.
Judgment was reserved.