JUSTITIA
Equality before the Law
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COMPLAINT BY THE FOUNDATION FOR EQUALITY BEFORE THE LAWWEEKEND ARGUS (SUNDAY EDITION)
6 August 2017
“ TIMOL INQUEST IS TIPPING POINT FOR POSSIBLE TIDE OF PROSECUTIONS”
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DETAILS OF COMPLAINT
The WEEKEND ARGUS violated the following provisions of the South African Press Code:
- The media shall take care to report news truthfully, accurately and fairly.
- News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation.
- Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.
- Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be stated in such report.
- The media shall seek the views of the subject of critical reportage in advance of publication; provided that this need not be done where the publication has reasonable grounds for believing that by doing so it would be prevented from reporting; where evidence might be destroyed or sources intimidated; or because it would be impracticable to do so in the circumstances of the publication. Reasonable time should be afforded the subject for a response. If the media are unable to obtain such comment, this shall be reported.
The relevant report of the Weekend Argus can be read here. In the report, it is stated as follows:
“The Foundation for Equality before the Law, whose objective is to ensure former security policeman who never applied for amnesty are not prosecuted, must be working overtime. It cannot afford to have former security policemen like Els and Rodrigues break ranks and give an inch. To men like JP Botha, who runs the foundation, the security police were operating in “a time of war” and many were just “following orders”, as we have heard from the Nazis in the Nuremberg trials after World War II.”
The report states explicitly that the objective of the Foundation for Equality before the Law is “to ensure former security policeman who never applied for amnesty are not prosecuted” and it clearly and unambiguously conveys the message that the Foundation also has the objective to ensure that these members should lie, or at least keep silent, in this regard. These statements are false, unfounded and malicious, or at least so unfair that it amounts to reckless journalism. The Foundation for Equality before the Law never stated that members who did not apply for amnesty should not be prosecuted. The Foundation never contacted Els, Rodrigues or any other former members of the security branch who did not apply for amnesty. Nor did the Foundation ever state that members of the security branch were operating in a time of war and were just following orders.
The following paragraph in the report in question is also a distortion of the facts, which could not have been made with due regard to the available evidence:
The following paragraph in the report in question is also a distortion of the facts, which could not have been made with due regard to the available evidence:
“Dr Scheepers, the pathologist who did the autopsy in 1971, found a number of injuries on Timol’s body not consistent with a long fall. So did medical doctors at the time. But Rodrigues claims not to have seen any injuries when he sat with him in room 1026.
One of these injuries was to his left foot, which would have made it impossible for him to rush to the window, as Rodrigues claimed.
Had he dived out of the window, as Rodrigues claimed, he would have landed much further away from the building, according to the testimony of a trajectory expert
According to all available sources the autopsy in 1971 was done by Dr. Scheepers, the state pathologist, and also attended by dr. Gluckman on behalf of the Timol family and dr. Koch on behalf of the police. All three well known and highly regarded pathologists. The Magistrate who conducted the inquest in 1971, Mr. De Villiers, was assisted by professor I.W. Simson, a professor in pathology and also highly regarded, as assessor. None of these pathologists concluded at any stage that Ahmed Timol’s left foot was injured to such an extent that it would have prevented him from running. For that matter, they did not find any indications of injuries which would have been visible to Rodrigues. The testimony of the trajectory expert is still being considered by the present inquest and has not been substantiated. The report which is the subject of this complaint, is imbalanced and fails to state the important facts in these expert reports.
The contents of these detailed reports, are discussed in the following documents (available online):
The contents of these detailed reports, are discussed in the following documents (available online):
The objective of the Foundation for Equality before the law is to ensure that the principles of our Constitution which provide for equality before the law, are honoured and that all actions taken in so far as alleged crimes are concerned, which were committed in the conflict of the past, are conducted in the essence and spirit of the concluding paragraph of the Interim Constitution which reads as follows:
“The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization”
There can be no justification for the publication of the remarks complained of, without consideration and publication of the available facts to create a fair and balanced perspective and without obtaining the perspectives of the Foundation (and me as its chairperson, who is also mentioned by name). The following facts should be considered with regard to the need for an organisation such as the Foundation, to engage itself in the struggle to ensure equality before the law (as its true objective is clearly stated in its name):
Car-bombs, landmines, limpet mines and other explosive devices exploded on a regular basis and defenceless people - women and children - were killed or horribly maimed and the community faced a constant threat. Limpet mines in Wimpy Restaurants and explosive devices in refuse containers or terror attacks, in which persons might be mowed down indiscriminately, irrespective of whether they were women or children, were a real daily threat. The Church Street Bomb-explosion and the attack on the St James Church were characteristic of the reckless and barbaric way in which the revolutionary groups conducted the struggle. Pressure was mounted on the police from all sides, especially on the Security Branch, to safeguard the community at large from these attacks.
37 Members of the National Executive Committee of the ANC applied for collective amnesty in respect of the various acts committed by Umkhonto we Sizwe (MK) and admitted that members of MK were at all times operating under their authority. They however avoided to apply for amnesty in respect of various individual acts of terrorism committed by members of MK for which they are liable and can be prosecuted. Amnesty was originally granted, but set aside by the High Court after an outcry by the public.
On the 25th of July 1993, defenceless churchgoers, including women and children, were attacked in St James’s Church, Cape Town, with AK 47 rifles and 11 were cold-bloodedly killed and several others were wounded. Dr Allan Boesak made the following comment regarding this incident:
“We are horrified and deeply distressed by the savage attack on the congregation at St James's Church, Kenilworth, yesterday evening. Not only is this a monstrous crime against humanity, but also a shameful desecration of a place of prayer and worship’.
Mr Letlapa Mphahlele, the President of the PAC and the man responsible for giving the orders for these attacks, was initially prosecuted and appeared in court for these murders but the case was postponed and has since faded away.
Notwithstanding the fact that several political leaders and generals of the previous regime have been prosecuted for various acts committed in the conflict of the past and associated with a political motive, no political leader of the ANC or PAC has been prosecuted yet for the various hideous crimes for which they are liable, nor are there any indications that such prosecutions may be considered. Consequently, the witch hunt which is being conducted at present to prosecute former members of the security branch who did not apply for amnesty, without exception low ranking officials, not only violated the principles of our Constitution, but is also a disgrace to the values of what is just and fair in any civilized community.
The intention of malice in the report, is corroborated by the unfair, unwarranted and unjustifiable association drawn between the “Nazis in the Nuremburg trials” and me.
“The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization”
There can be no justification for the publication of the remarks complained of, without consideration and publication of the available facts to create a fair and balanced perspective and without obtaining the perspectives of the Foundation (and me as its chairperson, who is also mentioned by name). The following facts should be considered with regard to the need for an organisation such as the Foundation, to engage itself in the struggle to ensure equality before the law (as its true objective is clearly stated in its name):
Car-bombs, landmines, limpet mines and other explosive devices exploded on a regular basis and defenceless people - women and children - were killed or horribly maimed and the community faced a constant threat. Limpet mines in Wimpy Restaurants and explosive devices in refuse containers or terror attacks, in which persons might be mowed down indiscriminately, irrespective of whether they were women or children, were a real daily threat. The Church Street Bomb-explosion and the attack on the St James Church were characteristic of the reckless and barbaric way in which the revolutionary groups conducted the struggle. Pressure was mounted on the police from all sides, especially on the Security Branch, to safeguard the community at large from these attacks.
37 Members of the National Executive Committee of the ANC applied for collective amnesty in respect of the various acts committed by Umkhonto we Sizwe (MK) and admitted that members of MK were at all times operating under their authority. They however avoided to apply for amnesty in respect of various individual acts of terrorism committed by members of MK for which they are liable and can be prosecuted. Amnesty was originally granted, but set aside by the High Court after an outcry by the public.
On the 25th of July 1993, defenceless churchgoers, including women and children, were attacked in St James’s Church, Cape Town, with AK 47 rifles and 11 were cold-bloodedly killed and several others were wounded. Dr Allan Boesak made the following comment regarding this incident:
“We are horrified and deeply distressed by the savage attack on the congregation at St James's Church, Kenilworth, yesterday evening. Not only is this a monstrous crime against humanity, but also a shameful desecration of a place of prayer and worship’.
Mr Letlapa Mphahlele, the President of the PAC and the man responsible for giving the orders for these attacks, was initially prosecuted and appeared in court for these murders but the case was postponed and has since faded away.
Notwithstanding the fact that several political leaders and generals of the previous regime have been prosecuted for various acts committed in the conflict of the past and associated with a political motive, no political leader of the ANC or PAC has been prosecuted yet for the various hideous crimes for which they are liable, nor are there any indications that such prosecutions may be considered. Consequently, the witch hunt which is being conducted at present to prosecute former members of the security branch who did not apply for amnesty, without exception low ranking officials, not only violated the principles of our Constitution, but is also a disgrace to the values of what is just and fair in any civilized community.
The intention of malice in the report, is corroborated by the unfair, unwarranted and unjustifiable association drawn between the “Nazis in the Nuremburg trials” and me.
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J P BOTHA
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