Ahmed Timol died on 27 October 1971, five days after being arrested at a roadblock with banned political pamphlets in his car. The police who held him at John Vorster Square said he had jumped from the tenth floor. An inquest in 1972 agreed, and found no one responsible. It took forty-six years, a reopened inquest, and a great deal of persistence from Timol's family for a different truth to reach a courtroom: that he had been tortured, and that a security branch officer, Joao Rodrigues, had helped cover it up.
Rodrigues was charged with murder in 2018. He never disputed the core facts so much as the timing. His argument, in essence, was that 47 years was too long to wait, and that whatever the truth of 1971, a fair trial was no longer possible. I appeared, led by Kennedy Tsatsawane SC, for the National Director of Public Prosecutions and the Minister of Police, opposing that application. It is a case I still think about, not because it was legally complicated — the applicable test is well established — but because of what it asked a court to weigh.
South African law has never treated delay as automatically fatal to a prosecution. Section 35(3) of the Constitution guarantees a trial without unreasonable delay, and courts assessing a permanent stay ask a cluster of questions: how long was the delay, why did it happen, did the accused assert his right to a speedy trial, and — the question that usually decides these applications — has the delay actually prejudiced the accused's ability to defend himself. A stay of prosecution is not a reward for the passage of time. It is a remedy for demonstrated unfairness.
Rodrigues could point to a long delay, but very little of it was ordinary institutional slowness. Part of it was apartheid itself, which was never going to investigate its own security branch. Part of it, the courts found, was political interference within the post-1994 National Prosecuting Authority, which shelved TRC-era cases between 2003 and 2017 for reasons that had nothing to do with the evidence. Neither the High Court nor, on appeal, the Supreme Court of Appeal found that this history had left Rodrigues — by his own account an eyewitness to Timol's final hours — meaningfully worse placed to defend himself at trial than he would have been decades earlier. Our argument, put simply, was that a man in his position could only clear his name through a trial, not by avoiding one.
The Supreme Court of Appeal agreed, unanimously in the result, though not unanimously in its reasoning. The majority treated the absence of trial prejudice as effectively dispositive. The minority, in a judgment by Cachalia JA, reached the same outcome but placed more weight on where the fault for the delay actually lay — with the state and its politics, not with Timol's family, who the judgment described as having waged what it called a heroic struggle to bring the matter to trial at all. Rodrigues died a few months after the appeal was dismissed, before the trial he had spent three years trying to avoid could begin.
I don't think this case tells us anything new about the law of permanent stays; the Constitutional Court had already set out the framework years earlier, and the commentary since Rodrigues is careful to say the judgment is fact-specific rather than a new test. What it tells us, I think, is something about what the remedy is actually for. It exists to protect an accused from a trial that delay has made unfair — not to let institutional failure, however serious, become an accused's shield. That distinction matters well beyond this one case. There are other TRC-era matters still working their way toward trial, decades after the events they concern, and the same question will come up in each of them: whose delay was it, and did it actually cost the accused a fair hearing. Those are two different questions, and Rodrigues is a reminder that a court has to answer both before it reaches for a remedy as final as a permanent stay.