Timol murder accused Rodrigues not entitled to permanent stay of prosecution, SCA rules

The Supreme Court of Appeal (SCA) on Monday dismissed an appeal by Joao Rodrigues arguing that criminal proceedings against him over the murder of political activist Ahmed Timol in October 1971 constituted an unfair trial.

This means that if no appeal is pursued by Rodrigues, he will need to stand trial for the murder which occurred 49 years ago. 

Rodrigues in his application, which started in the high court, had also wanted to be granted a permanent stay of prosecution on the charge of murder in criminal proceedings against him relating to the death of Timol.

He was charged with premeditated murder in 2018 after the reopening of an inquest into Timol’s death.

Timol died from injuries after falling from the 10th floor of John Vorster Square police station where he was interrogated and allegedly tortured.

Before he could plead in July 2018, Rodrigues applied to the high court in Johannesburg not to be prosecuted for the murder.

A full bench of the high court in Johannesburg dismissed his application, and also dismissed his application for leave to appeal to the SCA.

Rodrigues then petitioned the SCA, which set the matter down for hearing in November last year.

Rodrigues made his 18th appearance in the high court in Johannesburg in May for his role in the murder of Timol, but the matter could not start before the decision from the SCA was delivered.

The application for leave to appeal by Rodrigues was advanced on the basis that the full court erred in concluding the delay in bringing the prosecution would not taint the fairness of the trial and violate Rodrigues’ right to a fair trial.

Rodrigues, who is in his 80s, contended that it was unfair to charge him almost 47 years after the death of Timol.

The SCA said Rodrigues did not apply for amnesty during 1994 and 2002 and it was common cause that those who did not apply for amnesty accepted the risk of future criminal prosecution.

In its judgment, the SCA said it was firmly established that an application for the permanent stay of prosecution should not be easily granted.

It said Rodrigues did not complain that there was a delay to charge him after the second inquest ruling in October 2017, which found Timol was pushed from John Vorster Square police station with the intent to kill him.

Judge Billy Mothle had also found that Rodrigues participated in a cover-up to conceal the crime of murder and ordered that he be investigated with a view to being prosecuted.

Rodrigues was charged with the murder of Timol in July 2018.

The SCA said there was no evidence that the 47-year pretrial delay would inevitably taint the overall fairness of the trial.

“For all these reasons, I am not persuaded the appellant has established that he has or will likely suffer trial-related prejudice if he is not granted a permanent stay of prosecution and is brought to trial.

“The trial court will be best suited to deal with any issue of potential prejudice. The appeal must, accordingly, fail,” acting judge of appeal Aubrey Ledwaba said in a judgment in which three other judges concurred.

In a separate judgment, judge of appeal Azhar Cachalia said he agreed with the conclusion by Ledwaba that the high court correctly dismissed Rodrigues’ application for his prosecution to be permanently stayed.

Cachalia disagreed that Rodrigues made a proper case for the appeal to be entertained by the SCA. “There were no compelling reasons to entertain this appeal, much less reasonable prospects of success,” he said.

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