‘That silent complicity, the silence of cowardice, is finally coming to an end’

The mood in court GC of the South Gauteng high court was tense and expectant on Friday morning, an uneasy silence of certain uncertainty, broken by hushed undertones, the odd cough, the humdrum aircon and the creaking of chairs.

This silence was broken by the loud “All rise!” of the clerk of the court as judge Motsamai Makume entered, sat down and rapidly got going with the business of the day: delivering his judgment in the reopened inquest into the February 1982 death in police custody of Dr Neil Aggett, an activist, trade union organiser and medical doctor.

In the sombre, wood-panelled room filled with lawyers, family and media, judge Makume didn’t mince his words as he overturned the first inquest’s findings. After traversing the evidence, he ripped into apartheid magistrate Petrus Kotze, saying his findings were “disgusting” and biased, that he had misdirected himself and helped cover up crimes by Security Branch (SB) officers who interrogated and killed Aggett.

It took 39 years to hear a verdict that in 1983 should have sent murderous SB officers to the gallows, but instead saw them collect SAP pensions and live comfortably.

Maybe some of them had nightmares or woke in cold sweats remembering their brutal cruelty. That’s about the only comfort the victim’s family has been able to draw from in this tragic and wholly unnecessary four-decade-long delay.

Aggett did not commit suicide. The conduct of the SB led directly to his death. Police denied all torture allegations, tampered with the crime scene, covered up the murder and lied in court to protect each other, judge Makume found.

The truth we all knew at that time is finally official, on the record. Though the worst criminals in this sordid atrocity are dead, judge Makume recommended the National Prosecuting Authority (NPA) investigate and pursue criminal charges against those still living.

The notorious torturer Brig Theunis Jacobus “Rooi Rus” Swanepoel (Witwatersrand SAP divisional inspector) organised the cover-up, assisted by Brig Hendrik Christoffel Muller (SB chief, Johannesburg) and Mjr Arthur Benoni Cronwright (head of the SB at John Vorster Square, now Johannesburg central police station). All three are dead.

Other SB officers who escaped justice through dying are then Lt Stephen Peter Whitehead, Aggett’s lead interrogator and torturer, who died, ironically, the same week the minister of justice announced the reopening of the inquest in April 2019; Sgt Paul Erasmus (Stratcom); Lt-Col Christian Stephanus Scholtz (SB John Vorster Square); Capt Andries Abraham Struwig (SB John Vorster Square); Warrant Officer KJ de Bruin; and Capt Carel Jacobus Victor (investigating officer, SAP John Vorster Square).

Those SB members who are still alive are ex-riot squad officer Warrant Officer Nicolaas Deetleefs, Mjr Johannes Nicolaas Visser, Lt Joseph Petrus Woensdreght, Daniel Elhardus Swanepoel, Roelof Jacobus Venter and Magezi Eddie Chauke. It remains to be seen if the National Prosecuting Authority (NPA) has the appetite to pursue charges of murder, perjury and obstruction of justice against them after 15 years of deliberate inaction on its part due to illegal political interference by senior ANC members.

The struggle for liberation was betrayed by a small group of people in shiny new clothes who decided that those who slaughtered dozens of their comrades could walk free for the rest of their lives.

Former enemies were now the country’s liberators, in power and loving it. Why did they betray their ethics, their principles and their comrades? There was no amnesty agreement. After its completion, the Truth and Reconciliation Commission (TRC) referred between 300 and 400 cases to the NPA for further investigation and prosecution.

But the TRC also refused amnesty to the so-called “ANC 37”, whose more well known names included Charles Nqakula, Barry Gilder, Wally Serote, Baleka Mbete, Peter Mokaba, Nosiviwe Mapisa, Thabo Mbeki, Mac Maharaj, Jacob Zuma, Billy Masethla, Ruth Mompati, Jackie Selebi, Pallo Jordan, Essop Pahad, Matthews Phosa, Pravin Gordhan, Alfred Nzo, Joe Modise, Andrew Masondo, Snuki Zikalala and Joe Nhlanhla.

The ANC feared that if apartheid’s perpetrators were brought to justice, senior ANC members could also face prosecution for human rights abuses committed in the course of the struggle, such as their landmine campaign, some bombings and the ill treatment of Umkhonto we Sizwe (MK) soldiers undergoing training in ANC camps in Angola and elsewhere.

After behind-the-scenes machinations such as “creating a new prosecutions policy”, continuously shifting the prosecutions to other sections or delaying funding, the ANC was forced to act when national director of public prosecutions (NDPP) Vusi Pikoli made clear his intention to prosecute perpetrators “without fear or favour”, as per his mandate.

In 2006, ministers Zola Skweyiya, Thoko Didiza, Mosiuoa Lekota and Charles Nqakula summoned Pikoli to a private meeting. Also present were national police commissioner Jackie Selebi and Loyiso Jafta, chief director in the presidency of Thabo Mbeki. Pikoli’s direct boss, minister Brigitte Mabandla, was “indisposed”.

Illegally, they applied political pressure on Pikoli to stop all post-TRC prosecutions. Pikoli, to his credit, refused to bend to their unconstitutional behaviour. The pressure continued into 2007, with a final secret “showdown” occurring with Selebi, national intelligence boss Ronnie Kasrils, Mabandla, Skweyiya and several directors-general. Pikoli was threatened and later wrongfully suspended at Mbeki’s behest.

The political interference or meddling that I have set out in this affidavit is deeply offensive to the rule of law and any notion of independent prosecutions under the constitution. It is no coincidence that there has not been a single prosecution of any TRC matter since my suspension.

—  Former national director of public prosecutions Vusi Pikoli

So apartheid masterminds, assassins or bosses were never held to account for the crimes against humanity that occurred under their watch, except for Vlakplaas commander Eugene “Prime Evil” de Kock and a few other foot soldiers. Human rights abuses in the ANC’s camps also went unaccounted for. Former president FW De Klerk, who died earlier this year and who said he never knew about hit squads or illegal killings despite evidence to the contrary, also escaped justice.

It took until 2015 to expose the ANC’s secret plot to prevent the prosecutions of the cases referred to the NPA by the TRC. It was during the family’s court application to have ANC courier Nokuthula Simelane declared dead (she disappeared after being detained by the SB in Johannesburg in 1983 and her body was never found) so an inquest could be held and SB members held accountable that Pikoli exposed the underhand and illegal dealings of senior ANC members.

In an affidavit to the court, Pikoli stated: “The political interference or meddling that I have set out in this affidavit is deeply offensive to the rule of law and any notion of independent prosecutions under the constitution. It is no coincidence that there has not been a single prosecution of any TRC matter since my suspension.”

It is this betrayal that has hurt the families of victims almost as much as the murders. A great many still feel the very deep pain and trauma which callous and cruel SB behaviour occasioned.

In a string of strange coincidences, apartheid perpetrators have died shortly before inquests are reopened or before trials of SB members can be concluded. Matters affected in this way include that of Ahmed Timol, the Cradock Four, Simelane, Aggett, Ernest Moabi Dipale and the Cosas 4.

Family members have also gone to the grave not knowing the truth about the deaths of their sons, husbands, daughters or loved ones, creating an enduring pain for families struggling to find closure. Former police officer and dedicated investigator Frank Dutton also died earlier this year. Family lawyer and advocate George Bizos died in 2020.

In Aggett’s case, his parents and elder brother died not knowing the truth. Jill Burger, his sister, did not attend the judgment, but Aggett’s girlfriend, Dr Liz Floyd (who was also detained), was there to finally hear the moment of truth when judge Makume broke the lies and silence around how he died. So were four of Aggett’s nephews, their mother Mavis and several of his co-detainees, who were also tortured on the 10th floor of John Vorster Square. 

Judge Makume briefly went through the barbarous torture Aggett suffered during his 70 days in detention, including an interrogation session of 62 hours. Torture methods included solitary confinement, sleep deprivation, electric shocks, wet bags, verbal and physical abuse, and assaults, methods that belong more to the Spanish Inquisition or Dark Ages. The judge called SB denials of torture “puerile”.

It was a surreal experience to listen to the litany of human rights abuses being coldly enumerated in a courtroom. For many of those who lived through them, those days 40 years ago were just as fresh, frightening, terrifying and real as if they were yesterday.

After the judgment, Floyd and Yasmin Sooka, of the Foundation for Human Rights, called on the NPA to follow up swiftly and prosecute the surviving SB members. As TRC chairperson Archbishop Desmond Tutu said prophetically at that time: “Those who forget the past are doomed to repeat it.” Justice must be seen to be done.

Aggett was the 53rd person to die in police detention and the secretive SB had unlimited powers over life and death. After all, its members tossed Timol from a 10th floor window like a rag doll. They lost their humanity. After Aggett was killed there were multiple failures of police process at cell 209, as officers manufactured a cover-up at the highest level and no disciplinary inquiries were instituted. Instead, the deadly code of silence among state killers prevailed — for 40 years.

That hush, that silent complicity that hurt the families almost as much as the loss of human life itself, is the silence of cowardice. Finally, it is coming to an end.