Timol inquest opens new door to justice against apartheid atrocities

Bishop Desmond Tutu during South Africa’s Truth and Reconciliation Commission process.
Reuters

A powerful legal precedent that promises to see the reopening of other apartheid era crimes has been set in motion thanks to anti-apartheid activist Ahmed Timol’s family. They pushed for a new inquiry into Timol’s death, in 1971, while in police custody. An inquest held a year later found that he committed suicide while in detention. Now a judge has found that Timol was pushed to his death. The outcome refocuses the spotlight on how societies deal with authoritarian pasts.

In 1989 the Prime Minister of Poland, Tadeusz Mazowiecki, famously called for a “thick line” to separate the past and current political dispensations in Poland. The country was emerging from more than 40 years of communist rule that had been toppled by a popular uprising. Mazowiecki called for those who had been in power to be absolved of responsibility for their crimes to enable Poland to move forward.

South Africa, meanwhile, opted for a trade-off between culpability and truth after the fall of apartheid. Apartheid era offenders were required to give full disclosure of their crimes in exchange for amnesty. This was done under the auspices of the Truth and Reconciliation Commission (TRC).

The TRC built on the precedent of similar commissions set up in South American countries that had been through military rule. The TRC gave South Africa great international attention as it was viewed as a stellar success. As a result South Africa has been held up as a benchmark of how to deal with post conflict situations.

Ahmed Timol.
Ahmed Timol Family Trust

The model has been applied in different scenarios, ranging from Ireland’s sectarian conflict to Canada’s treatment of its First Peoples.

But more than 20 years after the formation of the TRC South Africans have become increasingly restive about its success. Critics say that rather than achieving truth and reconciliation, truth was sacrificed for reconciliation.

Dealing with the past

The transition in South Africa was informed by the 1980s series Transitions from Authoritarian Rule, edited by Guillermo O’Donnell, Philippe C. Schmitter and Laurence Whitehead, in the wake of authoritarian regimes collapsing in Latin America.

In comparing these transitions, they spelt out the steps societies would take in the future. Beginning with liberalisation, where general rights would be extended to all, they predicted that societies would then move to democratisation, where political rights would be democratised. The last step, socialisation, would provide social and economic equality.

As Wits University academic David Everatt has observed, this reasoning looks increasingly determinist. This is because it is obvious that South Africa and other post-authoritarian regimes have struggled to match the steps of liberalisation and democratisation with socialisation.

In effect, the steps set out in the Transitions series were also advocating for a “thick line” approach to dealing with the past. This underplayed the collective psychological trauma borne by those emerging from authoritarian societies, as was the case for black South Africans.

But the fundamental criminality of the apartheid system has provided ample grounds for families of victims to reopen inquests.

The desire of individual families, such as the Timols, to get to the truth of the death of their loved ones – and if possible, to see those responsible prosecuted – has ensured that further cases will be opened.

It has by no means been smooth sailing though: take the case of Neil Aggett, the trade unionist who died in police detention in 1982. A biography on Aggett written by Beverley Naidoo in 2012, Death of an Idealist, led to an article in a local newspaper exposing how one of Aggett’s main interrogators, Stephan Whitehead, had gone on to enjoy a successful career in the security forces after 1994.

The Neil Aggett Support Group – formed by his friends, family, lawyers and activists – wrote an open letter to Jeff Radebe, the then-Minister of Justice and Constitutional Development in February 2013. They called for the prosecution of Whitehead, who did not apply for amnesty to the Truth and Reconciliation Commission. But the National Prosecuting Authority (NPA) failed to take action.

Their experience mirrored that of Timol’s family who had faced obstacles at every step. Timol, a South African Communist Party member, died in very similar circumstances to Aggett’s at the same John Vorster Square in 1971.

Imtiaz Cajee, Ahmed Timol’s nephew, during the inquest into his death.
ANA/Jacques Naude

The Timol family saw an application they filed in 2003 turned down by the NPA. In 2016 the family presented new evidence that finally led the NPA to reopen the inquest later that year.

The Timol family have finally won what they fought so hard to achieve. The judge’s finding that Timol was pushed to his death has set a powerful legal precedent that promises to see other apartheid era crimes reopened.

To some extent the atrocities of apartheid have been contained for the past 20 years as a result of the country’s truth and reconciliation process. But the Timols, in their search for justice, have reminded South Africans that there can be no thick line separating the past from the present.

Ian Macqueen, Lecturer, Department of Historical and Heritage Studies, University of Pretoria

This article was originally published on The Conversation.

Spike in Listeria infections in South Africa: why it matters

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Listeria is an organism that contaminates food and can result in pregnant women going into premature labour or even losing their babies. The Conversation Africa’s Health and Medicine Editor Candice Bailey spoke to Kerrigan McCarthy from the National Institute of Communicable Diseases about listeriosis and why it needs attention.

What is listeriosis and why is it dangerous?

Listeriosis is a serious bacterial infection caused by the rod shaped bacteria listeria monocytogenes. The bacterium is spread when people eat food contaminated with the bacterium. The most common foods to be contaminated are raw or unpasteurised milk as well as soft cheeses, or vegetables, processed foods and ready-to-eat meats and smoked fish products.

Infection with listeria bacteria results in mild to severe gastroenteritis. In people with weak immune systems it can lead to meningitis or septicaemia. And in pregnant women, listeriosis can result in a miscarriage or stillbirth, premature delivery, or meningitis in the newborn – leading to with permanent disability.

Listeria bacteria are found in the environment – for example in water and in the soil. This means that animals and vegetables can become contaminated at any time and that, as a result, anyone can get listeriosis. But there are certain groups that are at higher risk of severe disease: these include newborns, the elderly, pregnant women and their unborn babies; and those with underlying conditions such as HIV, diabetes, cancer, chronic liver or kidney disease.

Pregnant women are particularly prone because pregnancy causes a natural reduction in the strength of the immune system.

Why are the numbers rising?

In South Africa, the first documented outbreaks of listeriosis were in 1977. Between August 1977 to April 1978, 14 cases were reported in the Johannesburg area.

Since then, sporadic cases have occurred throughout the country. For example, between January 2015 and September 2015 seven cases were reported at a tertiary hospital in the Western Cape Province.

Over the last few months the National Institute for Communicable Diseases has received reports of a marked increase in the number of cases across the country, but particularly in the Gauteng Province, South Africa’s smallest but most densely populated province.

There have been 190 confirmed cases across the country this year. In Gauteng, the population incidence rates have increased from two per million to eight per million. The highest incidence has been recorded in the City of Johannesburg at 12 cases per million. This is not as high as the number of people who get meningococcal meningitis or pulmonary tuberculosis, but the consequences are just as serious.

Of the 122 cases in Gauteng, over 60% are newborn babies that have been infected.

The institute is trying to establish what the source of the infection is so that measures can be put in place to prevent further cases. Mothers who have been infected with the bacteria are being interviewed and the institute is also engaging with the food service quality industry.

What are the signs and symptoms?

Listeria can survive in fridge temperatures of 4°C. The infection incubates for between three and 70 days. In healthy adults, symptoms are usually mild and may include fever and sometimes nausea or diarrhoea.

In high-risk patients, the spread of the infection to the nervous system can cause meningitis leading to headaches and confusion, a stiff neck and convulsions. Bacteraemia – when the bacteria is found in the blood – may also occur.

Gastroenteritis due to listeria does not require treatment. But meningitis or septicaemia as a result of listeria can be life-threatening and should be treated with intravenous antibiotics.

What are the challenges in dealing with listeriosis?

Outbreaks of listeria in food are common across the world. Outbreaks of listeriosis across the world present the same problem: that the source of contaminated food is difficult to identify. There are two reasons for this.

Firstly, the incubation period of 70 days makes it difficult to track what the patient ate and therefore to identify the contaminated food.

And secondly, once the food source is narrowed down, tests need to be conducted on the range of possible foods to establish which is the implicated one. Only once authorities are able to identify the source are they able implement measures to prevent further cases.

How can we protect ourselves from this infection?

There is no vaccine or pre-exposure prophylaxis that can prevent infection. The main preventive measure is good basic hygiene, and proper, safe food preparation and storage.

Unlike most other food borne pathogens, Listeria monocytogenes can grow in refrigerated foods that are contaminated. To prevent this, fridge temperatures should be set below 4⁰C; and freezer temperatures below -18⁰C.

Those at high risk of listeriosis should avoid:

• Raw or unpasteurised milk, or dairy products that contain unpasteurised milk,
• Soft cheeses like feta, goat cheese and brie,
• Foods from delicatessen counters like prepared salads and cold meats that have not been heated and reheated adequately,
• Refrigerated pâtés

Additional measures include thoroughly cooking raw foods from animal sources, such as beef, pork or poultry. Raw fruit and vegetables should be thoroughly washed before eating. And surfaces where food is prepared should be decontaminated regularly, particularly after preparing raw meat, poultry and eggs, including industrial kitchens.

Kerrigan McCarthy, Head of the Outbreak Response Unit, National Institute for Communicable Diseases

This article was originally published on The Conversation.

What's at stake in South Africa's new finance minister's first budget

Reuters

There’s a great deal hanging on South Africa’s 2017 medium term budget policy statement. Three factors are at play: there is political turmoil around the governing African National Congress, the country’s economy is performing poorly and this is the first budgetary statement from the new Finance Minister Malusi Gigaba. The Conversation Africa’s Sibonelo Radebe asked Jannie Rossouw to layout his expectations.

What keeps you up at night in relation to this medium term budget?

The single most worrying factor is the lack of economic growth South Africa faces. Growth has slowed down significantly in recent years and the economy flirted with recession after shrinking during the last quarter of last year and the first quarter of this year. The economy did bounce back into positive growth during the second quarter but the outlook remains unimpressive. Only 0.5% growth is expected for 2017 and less than 2% over the medium term.

Owing to this lack of growth, unemployment is on the increase – it now stands at a staggering 27% – while government revenue is under pressure. It also implies that the government’s burden on the economy (for instance total government debt as percentage of gross domestic product, orDebt/GDP ratio) will increase.

Government’s debt to GDP ratio is currently budgeted to level out around 50%. This is to be welcomed because any increase in the ratio increases the interest burden.

But if slow growth and revenue shortfalls persist, government debt will increase. The debt to GDP ratio will be on its way to 65% of GDP in the medium term.

And should the combination of low growth and growing government expenditure continue after the period of this medium term statement (2017/18 - 2020/21), the debt/GDP ratio might be on its way to 100%. This projection really stresses one of the most worrying factors that has to be addressed in this statement: Limiting the level of government debt before it reaches this level.

In other countries where this level has been exceeded, severe adjustments had to be forced on their economies. Take the Irish Republic case. Remuneration levels and employment numbers in the civil service had to be cut dramatically to deal with the Irish government debt crisis.

There is a new finance minister in place and he comes with shifting political dynamics. How do you rate him and what do you expect from him?

It is difficult to rate the new minster, given that he’s only been in the job since April and the fact that he has not yet tabled his first budgetary statement. The only statement against which his performance can really be assessed is the 14-point plan he announced in July 2017.

We’ll be watching the medium term statement for his report back on progress in implementing it.

But Gigaba comes with worrying political dynamics, including accusations that he is party to corruption.

And its difficult to separate him from the history of bad policy options of the African National Congress which has delivered the prevailing lacklustre economic performance. The fiscal crisis facing South Africa is a direct result of these policies.

How significant is the medium term budget policy statement?

It’s very important as it provides an overview of government’s plans for expenditure and for raising revenue over the next three years. A three year view is significant because it provides insight into planned government expenditure and indicates expected tax increases that South African taxpayers have to face. It also informs decisions of the credit rating agencies about South Africa’s fiscal stability.

The statement forms the basis of the annual budget of government revenue and expenditure that is tabled in Parliament in February each year.

The statement is the first formal opportunity after the tabling of the annual budget where the government reports on the actual performance of revenue raised in comparison to budgeted revenue and of actual expenditure in comparison to budgeted expenditure.

This reporting by government gives an early indication of expectations for the main budget in February. For instance, if government revenue is underperforming, the expectation is that taxes will be increased the following February. Indeed a tax increase might materialise in this medium term statement.

What in you view will be key focus areas in this medium term statement?

As South Africa’s economic growth is currently lower than the forecast used for the 2017/18 fiscal year, tax collection has come under pressure. A revenue shortfall is expected for this fiscal year. The medium term statement is when the size of the shortfall will be formally disclosed.

Given expectations of a substantial shortfall, South Africans should brace themselves for substantial tax increases in the main budget in February 2018. The fiscal crisis might even be so serious that the government might decide to divert from previous practice and announce tax increases in this medium term statement.

Like any other government in the world, it raises revenue through taxes and use this revenue to fund its expenditure. If revenue exceeds expenditure, the difference must be borrowed, which adds to the level of government debt, or expenditure must be cut.

One of the biggest budgetary headaches is the ailing state owned enterprises. What should be done?

Government is really throwing good money after bad by using public money to bailout ailing state owned enterprises. I have said a long time ago that South African Airways should simply be given away. This is a much cheaper option for the taxpayer instead of never ending bailouts. The South African government should reassess its holding of state owned enterprises and close, sell or give away those that are no longer financially viable. Such action will remove a large financial burden on the South African taxpayer.

Jannie Rossouw, Head of School of Economic & Business Sciences, University of the Witwatersrand

This article was originally published on The Conversation.

Ahmed Timol inquest: why uncovering apartheid crimes remains so important

Former policeman Joao Rodrigues giving evidence at the Timol Inquest.
Anthony Schultz/Mail & Guardian

The recent, reopened inquest into the death of teacher and anti-apartheid activist, Ahmed Timol, was different in many ways from a traditional court case. Instead of the standard adversarial criminal trial, which is associated with an acrimonious standoff between opposing parties, the state and the representative of the Timol family, Advocate Howard Varney, seemed to agree on the importance of arriving at the truth about Timol’s death.

Timol was 29 when he was arrested on 22 October 1971. After being interrogated and tortured by the feared security branch of the police, he died on 27 October 1971. Magistrate JL de Villiers, who presided over the inquest that followed his death, found that Timol had committed suicide.

The reopened inquest in the North Gauteng High Court nearly 50 years later was intensely symbolic. The atmosphere in the court was heavy with history. At times the testimony of witnesses reminded one of funeral-like memorialisation. It was clear that the case was not only about Timol’s death but about the dozens of victims who died at John Vorster Square, the notorious Johannesburg security branch headquarters, and more broadly, the countless victims of apartheid crimes.

Throughout the hearings Judge Billy Mothle heard compelling testimony from witnesses such as Timol’s friend and fellow detainee Salim Essop. Essop testified of brutal torture including electric shock treatments and attempts to suffocate detainees.

In concluding his deliberations after hearing the evidence, Judge Billy Mothle found that Timol was either pushed from the 10th floor of John Vorster Square or from the rooftop of the building.

The ruling has been seen as a vindication of the tireless efforts on the part of Timol’s family and friends to have the apartheid security force’s lies and misrepresentation of the young activist’s final days overturned.

Truth and reconciliation

The Timol case resurrects many of the questions South Africa raised during the Truth and Reconciliation Commission (TRC), and in its direct aftermath. In many ways, the Timol case can be understood as a continuation of the work of the commission: the reopening of an inquest can be a way of establishing the truth of apartheid era atrocities.

In some ways, court proceedings are more efficient and powerful than hearings of the TRC kind. Courts have the power to subpoena witnesses and to declare lying witnesses in contempt of court. In addition, their judgments form formal precedent for future decisions. Court cases are also infused with a certain weight and formal authority.

One of the most serious criticisms of the design of the TRC was that it had the power to grant amnesty under certain conditions. While the conditional amnesty model was lauded as innovative and reconciliation-building, over two decades later it’s clear that there were crucial gaps in the amnesty scheme.

Firstly, the truth uncovered by the amnesty hearings was a selective truth in the sense that many apartheid victims didn’t have the means to travel to the sites of the hearing to testify. Secondly, many former perpetrators didn’t apply for amnesty. Many must have made a calculated guess that they were unlikely to be prosecuted if they did not apply for amnesty.

And there have been less than a handful of prosecutions post TRC. This arguably makes a mockery of the amnesty scheme. Also, the National Prosecuting Authority’s Priority Crimes Litigation Unit has been exceedingly passive. It’s this unit that failed to follow up on important cases such as the Wouter Basson case. Dubbed “Dr Death” in the media, Basson was the head of the apartheid government’s chemical and biological warfare programme. When the Constitutional Court gave the prosecuting authority the go ahead to prosecute, it failed to follow up.

In light of the poor, lacklustre track record of the state over the past 20 years, there’s little reason for optimism that all apartheid era inquests will be reopened. There can be no doubt that reopening inquests is an important way of discovering the truth about the past and setting the historical record straight.

Many cases will be obstructed by the fact that witnesses and accused would have died in the decades since the killings.

Even if witnesses are alive their memories often fail them as might have been the case with Joao “Jan” Rodrigues in the Timol inquest.

Banality of evil

Rodrigues was one of the policemen present at the time of Timol’s killing and is accused of helping to hide the evidence of his killing.

When testifying at the Timol hearings, Rodrigues (78) was completely uncooperative and continuously claimed that he could not remember the events of October 1971. Watching from the public gallery, I found Rodrigues the most interesting of the witnesses. He was interesting precisely because he was ordinary and reminded me of philosopher Hannah Arendt’s concept of the “banality of evil” in “Eichmann in Jerusalem: A Report on the Banality of Evil” – her account of Nazi officer, Adolf Eichmann, who Arendt thought willingly did his part to organise the Holocaust but in a non-ideological combination of careerism and obedience.

Rodrigues’s testimony is representative of the denial of a whole generation of white South Africans. He did not show a slither of remorse. His body language conveyed a certain irritation and annoyance at the fact that he was hauled from the daze of retirement into the spotlight of a prominent and inconvenient court appearance. He conveyed that he was somehow being victimised by a process he found strange and unnecessary.

Appropriate relief

Judge Mothle stated that the perpetrators are dead. This raises the question of appropriate relief – a question which is still unclear. But punishment of perpetrators is not the primary relief sought by victims of state sponsored atrocities.

It is good and right that the Timol case gives hope to the families of murdered apartheid activists and that victims will be encouraged to come forward to reopen inquests. But it’s important that families should be warned of the significant resource obstacles the state faces and the selective nature of prosecutions. There is only one thing worse than living in hope: hope that is continuously frustrated.

Mia Swart, Professor of International Law, University of Johannesburg

This article was originally published on The Conversation.

Using the South African army to fight crime is a bad idea: here's why

Reuters

South Africa’s police minister, Fikile Mbalula, has stirred controversy by calling for the involvement of the country’s military in fighting crime. Although there might be short term gains from deploying the South African National Defence Force (SANDF) in crime-ridden urban areas of the country, there are several reasons why it should be discouraged.

An obvious reason is that, tactically, militaries are not trained to do community protection and fighting crime in urban communities. They aren’t taught and trained how to apply police and law enforcement rules when it comes to the use of minimum force, or how to follow the proper procedures during an arrest.

Moreover, soldiers are generically trained to use machine guns, not pistols. Also, military doctrine and command structures are not suited to deployments in urban areas and especially to fight gangsterism. In short, armies are basically geared to fight external enemies.

Mexico is a case in point from a South African perspective. A decade ago the country’s military was brought in to fight drug cartels - a role its leadership is now questioning. The Mexican Defence Minister Salvador Cienfuegos recently pointed out that their responsibilities in fighting crime doesn’t correspond with their training.

We didn’t study how to chase criminals.

South Africa can learn from the Mexican experience. There are no short cuts to fighting crime, and instead of looking to the SANDF for quick fixes, the South African government should be focused on building a more effective and functional police and crime intelligence service. In simplified terms: the South African Police Service (SAPS) and related law enforcement agencies should improve their institutional capabilities and get the job of crime prevention and fighting done more efficiently. Beyond the fact that it wouldn’t be desirable to use the military in anti-crime efforts in Cape Town and Gauteng, there is also the hard reality that South Africa’s defence force is in a weakened and parlous state in several respects.

Three reasons why it shouldn’t do the job

There are at least three important reasons why the South African National Defence Force shouldn’t be deployed to fight crime in urban communities.

The first is that the country’s defence force is in an increasingly critical state of degeneration. There has been a continuous decline in military spending over the past few decades. In real terms, the defence budget was cut by half between 1989 and 1997. Until 2010 expenditure was pinned at about 1,6% of GDP - which is between 6% and 7% of total government expenditure). Over the past seven years it has levelled out at 1.2% to 1.1% of GDP.

It’s not surprise that the recently adopted Defence Review (2015) found that:

The Defence Force is in a critical state of decline … Left unchecked, and at present funding levels, this decline will severely compromise and further fragment the defence capability. It is clear that certain defence capabilities, if not addressed now, will be lost in the very near future. The longer this prevails, the greater the effort, time and cost will be to restore the Defence Force.

The second reason is that the military is ill-equipped to be called on to fight crime is that it’s been criticised for being unable to meet its current responsibilities,
including being able to fulfil its responsibilities as a peacekeeping force on the continent. In fact South Africa’s participation in continental peacekeeping operations of both the United Nations and the African Union has decreased notably. It’s participation has reached the lowest level since the early 2000s following the recent withdrawal of its soldiers from Darfur, Sudan.

Helmoed-Römer Heitman, one of South Africa’s most authoritative defence analysts contends that:

[t]he reality is that the state of readiness [of the South African National Defence Force] is appalling: The South African National Defence Force is in no way capable of handling anything but the most minor crisis.

The third reason is that, despite insufficient funding, the SANDF has had to take on extra responsibilities over the last seven years. Since 2010 it has taken back the border protection function (and related crime fighting along the borders) from the police and begun patrolling the country’s borders. It is now deployed along the seven provinces that have landward borders with surrounding countries. Tasks range from stopping people attempting to enter South Africa illegally to confiscating contraband, mainly cigarettes and liquor and dagga (marijuana). Since 2011 the SANDF also had to take up the task of assisting the Kruger National Park’s rangers in preventing rhino poaching.

Weak police force is the issue

There is, however, a much bigger issue at stake - the functionality of the SAPS. This is in fact the main issue. The current budget allocation favours public order and safety (earmarked for the police) over defence and state security (partially earmarked for the military). The 2017/18 allocation to the police portfolio was R93bn while the defence portfolio got R53bn.

In 2013 South Africa was listed as having the 11th biggest police force in the world and it gets almost 48% of the total allocation of the overall defence, public order and safety account At the same time, this does not mean that the SAPS is without shortcomings and constraints. According to UN statistics, South Africa is in the lower-middle end of policing ratios compared to other countries in the world.

Still, the police get a sizeable chunk of the country’s budget and it can be expected to deliver a better service to the South African public. The country has unacceptably high crime levels. But, the political solution to crime in the relevant areas of Cape Town and Gauteng does not lie in deploying the army. The relevant political leaders would do the country’s citizens a favour if they focused on fixing the police service and strengthening crime intelligence, and stopped pursuing unhelpful ideas like using the army to fight crime.

Theo Neethling, Professor and Head: Political Studies and Governance in the Humanities Faculty, University of the Free State

This article was originally published on The Conversation.