Re-opened inquest into the death of Dr Hoosen Mia Haffejee (01/2021) [2023] ZAKZPHC 93 (13 September 2023)

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[2023] ZAKZPHC 93
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Re-opened inquest into the death of Dr Hoosen Mia Haffejee (01/2021) [2023] ZAKZPHC 93 (13 September 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
INQUEST:
01/2021
In the matter of:
THE RE-OPENED INQUEST
INTO THE DEATH OF DR HOOSEN MIA HAFFEJEE
JUDGMENT
Z P Nkosi J
Introduction
[1]
The late Dr Hoosen Mia Haffejee (“Hoosen”), who was 26
years old, died
at the hands of the then South African Police
Security Branch, in the police cells, at Brighton Beach Police
Station, Durban, on
3 August 1977 allegedly from suicide by hanging.
The pain of his sudden death reverberated within the hearts, mind and
soul of
his loving family in Pietermaritzburg. The ever-lingering
melancholy felt by his mother, Mrs Fatima Haffejee (“Fatima”),

is captured in a Witness newspaper article of 17 July 1978, as
follows:
[1]
‘
On
Monday morning, August 1, 1977, my son wished me goodbye, saying that
he would see me on Friday, as he usually came home every
Friday since
his return from India 22 months ago. My son was a very home –
loving person, so he spent three days a week at
home and would leave
early on a Monday morning for work in Durban. So as usual he left
home on Monday, August 1. God knows what
happened to him. In August
3, 1977, we heard that shocking news – he had died in police
detention. I could not believe that
as my child was no criminal or
terrorist. He was a noble young man and a dedicated doctor, but the
police found him a dangerous
terrorist. What damage had he done or
whom had he killed in order to warrant such suspicion? As a sensitive
mother who shared a
close relationship with her son, I knew that my
son was not involved in any political activity, but rather was a
carefree person.
The police say that he was a brave man, yes, he was
brave because he was honest – they also said that he was
desperate, yes
because he was in the lion’s den with no way to
escape and no chance of informing his family of his detention. After
his
“death”, they said they found him hanging in his
cell, but I will never, never believe that my son took his own life.

The security police then went to search his flat for about two hours
and what did they find? Just two ordinarily letters from his
friends
in India: These were obviously a poor attempt to gather tatty bits of
evidence as a means to disguise the main issue, i.e.
how and who
inflicted these injuries on my son’s body? Although a
magistrate’s findings are based on the evidence put
before him,
isn’t it strange to find a recurring similarity in the injuries
and bruises found on the bodies of dead detainees
and no evidence led
about the obvious injuries? Are we doing enough to see justice being
done? The Prime Minister was quoted in
the Natal Mercury, May 25,
1978, confidently stating that “God will open doors to us so
that we can fulfil our destiny”.
I think the time is right for
us, the Blacks, to pray that God will open a door to protect our
destiny from the cruel injustice
of the South Africa Security Police.
I hope our prayers are answered before it is too late for us all. As
a grieving mother I cannot
forget this terrible ordeal; my heart will
always cry for my son.’
[2]
In a number of subsequent newspaper articles Fatima made her feelings
and suspicions
regarding her son’s death known. In 1997 she
appealed to the Truth and Reconciliation Commission (“TRC”)
to put
an end to her two decades of pain and suffering stating:
‘
I
know the truth about how my son died is going to come out one day….
I want to know the truth about how my boy died. I’m
very heart
sore and I will not rest until I find out who the killers are….
I will never never believe my honest, home –
loving and caring
son took his own life.’
[2]
[3]
The TRC concluded that it was likely that Hoosen died under
torture.
[3]
Hundreds of TRC
cases in which amnesty was not applied for or denied, were referred
to the National Prosecution Authority for processing
in terms of the
law and the Constitution. The Haffejee case is one such matter.
[4]
Fatima, died in 2011 without knowing the truth of how her son died in
police custody.
Her daughter, Sara Bibi Lall (“Sarah”)
and son Ismail Haffejee (“Ismail”) continued with her
struggle for
truth and justice.
[5]
Since the winding up of the TRC proceedings, there has been
inordinate delays in the
pursuit of justice in the Haffejee matter
(like I am advised in many other kindred cases) and Hoosen’s
family was left in
limbo for years on end. It appears that until
recently there was a state reluctance and/or suppression to prosecute
such matters.
[4]
In
Rodrigues
v National Director of Public Prosecutions
and
Others
[5]
the Supreme Court of Appeal strongly expressed itself thus:
‘
[26]…
the executive adopted a policy position conceded by the state parties
that TRC cases would not be prosecuted. It is
perplexing and
inexplicable why such a stance was taken both in the light of the
work and report of the TRC advocating a bold prosecutions
policy, the
guarantee of the prosecutorial independence of the NPA, its
constitutional obligation to prosecute crimes, and the
interests of
the victims and survivors of those crimes.’
[6]
I am advised that most of these cases cannot be revived. Suspects,
witnesses, and
family members have died. This inquest has come late
for Hoosen’s parents and his elder brother Yusuf. It seems the
harm
visited upon the Haffejee family and other families is
incalculable and unforgivable.
[7]
I am also advised that it has been hard coming for the Haffejee
family to reach this
formal stage of the re-opened inquest. On 29
July and 15 August 2019, the lawyers acting on behalf of the families
of late Neil
Aggett and Haffejee threatened the Minister of Justice
with an urgent High Court application if he did not instruct the
Judge Presidents
of the Gauteng and KwaZulu-Natal Divisions to
re-open the inquests. On 16 August 2019 the Minister of Justice
released a press
statement announcing that the inquests into the
deaths of Aggett and Haffejee would be re-opened. James Taylor, the
last surviving
alleged lead interrogator and torturer of Hoosen died
three days later on 19 August 2019.
The Inquests Act 58 of
1959
[8]
Inquests, including re-opened inquests, are regulated by the Inquests
Act
[6]
(the Act). Section 17A(1)
of the Act provides as follows:
‘
The
Minister may, on the recommendation of the attorney-general
concerned, at any time after the determination of an inquest and
if
he deems it necessary in the interest of justice, request a judge
president of the Supreme Court to designate any judge of the
Supreme
Court of South Africa to re-open that inquest, whereupon the judge
thus designated shall re-open such inquest.’
[9]
Section 17A (2) of the Act further states that:
‘
An
inquest referred to in subsection (1) shall, subject to the
provisions of this Act, as far as possible be continued and disposed

of by the judge so designated on the existing record of the
proceedings, and the provisions of section 17 (2) shall, in so far
as
they are not contrary to the provisions of this section, shall apply
mutatis mutandis
to
such an inquest.’
[10]
Section 17A(3)
(b)
provides that:
‘
A
judge holding an inquest that has been re-opened in terms of this
section –
(b)
shall record any finding that differs
from a finding referred to in section 16 (2), as well as the respect
in which it differs;’.
Evidential
considerations
The incomplete
record from the 1978 inquest (“the first inquest”)
[11]
It is apposite to record that the original record from the first
inquest is incomplete. In the
re-opened inquest this court needs to
consider the record of the original inquest.
[12]
During the hearing of the re-opened inquest, the family handed up a
list of exhibits produced
at the first inquest. In this list, it was
disclosed that approximately 66 exhibits were handed up and made part
of the record
during the first inquest and of those 66 items, only
the following exhibits are before this court:
(a)
exhibits “C1” to “C10”, which are photographs
of the different injuries
on the body, legs, back, lumbar area and
arms of Hoosen;
[7]
(b)
exhibits “N (i)” to “N (xix)”, which are
photographs of Hoosen taken
during Dr Biggs’ examination of his
injuries at his home before burial;
[8]
(c)
exhibit “0.1”, which are photographs of the injuries on
Hoosen’s
legs ;
[9]
(d)
exhibit “DD”, which is the statement of Gilbert Oliver
Hughes, Senior Professional
Officer, Chemical Laboratories of the
Department of Health;
[10]
(e)
exhibit “EE”, which is the statement of Ivor Colin White,
Chief Professional
Officer, Chemical Laboratories of the Department
of Health;
[11]
(f)
exhibit “FF”, which is the identification of body form
and statement by
Yusuf;
[12]
and
(g)
exhibit “GG”, which is a statement of Sergeant Richard
Phillip Law, South African
Police Medico-Legal Laboratories.
[13]
[13]
The investigating officer, Warrant Officer Kgamanyane (“Kgamanyane”)
received the
index, findings of Magistrate Blunden and two versions
of similar portions of the first inquest record from Hoosen’s
sister,
Sarah, around February or March 2018.
[14]
The index is in manuscript and contains only the details of the
transcripts from the first inquest.
[15]
[14]
Kgamanyane further confirmed in his evidence in chief that some
exhibits from the first inquest
were indeed missing.
[16]
These exhibits are categorised as follows:
(a)
Statements:
(i)
Professor Isidor Gordon, Chief State Pathologist, Durban.
(ii)
Lieutenant James Brough Taylor.
(iii)
Captain PL du Toit.
(iv)
Handwriting expert, Warrant Officer Pretorius.
(v)
Major van Eeden.
(vi)
Constable Johannes Nicolaas Meyer, uniform branch member stationed at
Brighton Beach Police
Station.
(vii)
Constable Hugh Derek Naude, uniform branch member stationed at
Brighton Beach Police Station.
(viii)
Constable Shadrack Madlala, uniform branch member stationed at
Brighton Beach Police Station.
(ix)
Captain HL Schourie, Station Commander at Brighton Beach Police
Station.
(x)
Richard Browning Clarke.
(xi)
Major Schutte, investigating officer in the first inquest.
(xii)
A written statement prepared by agreement between Dr Simon, Dr
Gluckman and Professor Loubser
in the presence of Dr Lorentz.
(b)
Reports
:
(i)
Report by Professor Gordon for blood/alcohol, barbiturates, nail
scrapings and
for traces of marijuana or dagga analysis.
(c)
Photographs:
(i)
Hoosen’s vest.
(ii)
Hoosen’s shirt.
(iii)
Hoosen’s jacket.
(iv)
Scenes of alleged events, such as the point of arrest, the parking
area in the north pier
and the pier itself.
(d)
Diagrams:
(i)
Diagram of the cell and courtyard – Brighton Beach Police
Station.
(e)
Requests:
(i)
Request by Brigadier Lothar Neethling (“Neethling”) for
analysis
of the presence of human blood on pieces of clothing cut
from Hoosen’s clothing.
(ii)
A key to the list of pictures.
(f)
Video or tape recordings:
(i)
Tape of Neethling reconstructing the hanging of Hoosen.
(g)
Documents:
(i)
Booklet titled “Our immediate task” which is described as
an organisational
guide, referenced by Magistrate Blunden as one of
the “
photostats of the documents that had
been
temporarily abstracted from [Haffejee’s] flat”.
(ii)
Article titled “Histopathology of Healing Abrasions” by
Robertson and
Hodge.
(iii)
Pamphlet titled “Man’s Worldly Goods” by Leo
Nurberman.
(iv)
Three handwritten documents, the contents of which are not described.
(iv)
A document allegedly on explosives.
(h)
Clothing:
(i)
Clothing of Hoosen such as his underpants, trouser, vest,
handkerchief, powder
blue safari suit top, pair of shoes, pair of
socks and pieces of clothing cut out for the purposes of examination.
The requirement of
a record to be placed before a re-opened inquest court
[15]
Section 17A (2) of the Act requires a record of the proceedings, “as
far as possible”,
to be placed before a court for inquest
proceedings to be re-opened and concluded. However, the Act does not
prevent an inquest
judge from making a finding in the absence of a
complete record. The Act only requires that the record of the
proceedings be supplied
as far as it possibly can be supplied.
[16]
The record in these proceedings, to the extent that it can be
supplied, is already before this
court. In addition, the first
inquest record has been supplemented by considerable new evidence,
which would be of assistance to
this court.
[17]
In
S
v Chabedi
[17]
the Supreme Court of Appeal held as follows regarding the adequacy of
records:
‘
[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still by hand, in which event a verbatim
record is impossible.
[6] The question whether
defects in a record are so serious that a proper consideration of the
appeal is not possible, cannot be
answered in the abstract. It
depends,
inter alia
, on the nature of the defects in the
particular record and on the nature of the issues to be decided on
appeal.’ (Reference
omitted.)
[18]
It is trite that a party to any litigation proceedings must produce
the original documents in
court. The reason for this is that errors
may be made in subsequent copies or documents may be falsified.
[18]
However, a party need only produce the original document when the
contents of the document, and not the actual existence of the

document, are in dispute.
[19]
See also
Welz
and
Another v Hall and Others
[20]
where Conradie J held:
‘
As
far as the best evidence rule is concerned, it is a rule that applies
nowadays only in the context of documents and then only
when the
content of a document is directly in issue.’
Copies of the original
may be admissible if it can be shown that the original has been
destroyed or that, despite a diligent search,
the original cannot be
located.
[19]
In this re-opened inquest the only concern is the availability of
some documents from the original
inquest. Otherwise, none of the
parties have raised a dispute regarding the contents of the available
documents. To the extent
that the above principle can be applied to
inquests, I believe that the available portions of the record as
supplemented by the
considerable body of evidence adduced in the
hearing are more than sufficient for a proper consideration of this
re-opened inquest.
Historical/Factual
Background (life history)
Early years
[20]
Hoosen was born on 6 November 1950 in Pietermaritzburg,
KwaZulu-Natal. He had three siblings,
Sarah, Ismail and Yusuf. His
father, Mohammed Essack Haffejee, died on 8 May 1986, while Yusuf
died on 16 September 2009 and his
mother, Fatima, died on 19 April
2011.
[21]
Hoosen’s political activities were not known to his family. His
early life merged with
the politics of the day. According to the
evidence of the anti-apartheid activist, Hanef Bhamjee (“Bhamjee”),
as early
as in 1960, when Hoosen was ten years old, he was already an
active body on the streets and was keen to be involved in the
struggle
for freedom. They developed a close relationship from those
days. It was in the same year that the African National Congress
(“ÄNC”)
and Pan Africanist Congress (“PAC)
were banned by the National Party government.
[22]
Bhamjee gave elementary Marxist books and pamphlets to Hoosen to
read. Bhamjee wanted to strengthen
anti-apartheid groups and spoke to
Hoosen about the activities of Umkhonto we Sizwe, the armed wing of
the ANC.
[23]
In 1961 while in primary school, Hoosen met KV Moodley(“Moodley”),
who would later
become a close comrade. In 1962, Moodley became
Bhamjee’s first recruit. He worked closely with Hoosen and the
ANC Youth
League. Later that year, Moodley was recruited into
Umkhonto we Sizwe.
Political
activity
[24]
In 1963, Bhamjee invited 13-year-old Hoosen to join his “study
group 29” –
which was a political education group.
According to Moodley, Hoosen was one of the youngest who were
attending this “youth
group”. They met in the
Pietermaritzburg library. The group worked with the Natal Indian
Congress (“NIC”). According
to Moodley, it was generally
understood that he and Hoosen were members of the ANC and the South
African Communist Party (“SACP”).
[25]
Between 1962 and 1964 multiple arrests of political activists were
taking place. At the study
groups during this time Bhamjee explained
to Hoosen and others that it was not the time to engage in sabotage,
even though they
had some knowledge of explosives.
[26]
Hoosen’s early commitment to the struggle was highlighted by
Bhamjee. Around 1963 or 1964,
Hoosen, Moodley and Bhamjee organised a
petition asking for a swimming pool for people of colour. In 1965,
after Moodley moved
to India and began his own study group, Hoosen,
Bhamjee and others organised a boycott of the Royal Show because
management said
that they would “limit the numbers of non-white
children because of serious overcrowding by them in previous years”.

In August 1965, Bhamjee left for the United Kingdom.
Studying in India
[27]
In June 1968, a few months before Hoosen turned 18, he travelled to
Bombay, India to study for
a pre-medical degree at Bhavna’s
College. He travelled, and studied the pre-medical degree, with
Crumsun Nundkumar(“Nundkumar”)
and Abdul Kader Akoo
(“Akoo”). Hoosen, Nundkumar and Akoo opted to study
medicine in India because of the limited opportunities
available to
people of colour to study at medical schools in South Africa.
[28]
Akoo took part in activist movements with Hoosen when they arrived in
India in June 1968. They
were roommates in the hostel. According to
Akoo, Hoosen was a determined anti-apartheid activist. He said Hoosen
was widely read,
and he embraced socialism and communism.
[29]
While in India, Hoosen began receiving copies of “Sechaba”,
the newspaper of the
Umkhonto we Sizwe. The newspaper was addressed
to Akoo. Akoo suspected that it was Hoosen who “was behind”
him receiving
this newspaper. He recalled an event when their hostel
was raided by right-wing nationalists. Hoosen “
galvanised
(them) into producing petrol bombs which (they) used to successfully
thwart the mob when they attempted to repeat their
shenanigans”.
[30]
Hoosen and Akoo met with ANC representatives in India. They had lunch
with Mosey Moola and met
with Mr Goolam and Mrs Amina Pahad. At these
lunches, students were lectured and persuaded to join the ANC. It was
around this
time that Akoo suspected that Hoosen had joined the ANC;
although Hoosen would never speak about his affiliation or membership
because of the risk of being exposed to the apartheid police. It was
something you kept to yourself, Akoo said.
[31]
In 1968, Hoosen reunited with Moodley, and Moodley recruited him into
his study group. Hoosen
participated in all the activities, including
the study of “political systems; theory of guerilla warfare;
sabotage and practical
application of underground work”.
[32]
In June 1970, Hoosen was not accepted into Natal University’s
Medical School and he decided
to pursue dentistry. He moved to
Nagpur, India. In January 1971, he met Vinay Hazarey at the
Government Dental College where they
were both studying.
[33]
In 1971, Hoosen met Fatima Sacoor (“Sacoor”) and AB
Gangat (“Gangat”)
who were also studying dentistry and
they developed a friendship. According to Sacoor, Hoosen was
knowledgeable about the politics
of the South African struggle. They
spoke much about struggle icons such as Yusuf Dadoo, Ismail Cachalia
and Nelson Mandela.
[34]
Between 1973 and 1974, Hoosen was the General Secretary of the Dental
College and Hospital’s
Student Association and became its
President during 1974 and 1975. Going back to 1973, he became a
member of the Bombay ANC cell
structure and attended ANC/SACP
training school in Bombay. According to Bhamjee, these structures
discussed the history of South
Africa, Marxism, Leninism, underground
work and urban guerilla warfare. All who went through the training
were asked to consider
smuggling the information back to South Africa
by having it reduced to tiny print and then sewn into the lining of
their clothing.
[35]
According to Bhamjee, Hoosen must have taken his original notes to
South Africa because they
were exhibited at his first inquest.
However, these notes were not available at the time of the re-opened
inquest.
[36]
Bhamjee said that he learned from Yusuf and Moodley about these notes
at the first inquest. According
to Bhamjee, this was a serious
mistake by Hoosen which was contrary to the agreed security measures.
[37]
In 1976, after qualifying with his degree in dentistry, Hoosen went
to London to see his aunt,
Rabia Bee Rahim(“Rahim”). He
thereafter went to Cardiff to see Bhamjee. While there, and around
August 1976, he and
Bhamjee attended the ANC/SACP training school in
Dublin, Ireland. In September 1976, Hoosen completed his studies and
left India
to practise dentistry in South Africa.
Return to South
Africa: relationship with Ms Matheevathinee Benjamin
[38]
Hoosen began working in Durban, at King George V Hospital. In January
1976, he met Ms Matheevathinee
Govender. At the time her surname was
Govender, which changed after she married Major Joseph Benjamin. She
was a nurse (dental
assistant) at the hospital. Around March 1977,
she started a relationship with Hoosen.
[39]
Ms Benjamin admitted to being quite taken by Hoosen. She considered
the relationship as “not
exactly romantic” but admitted
that she did harbour deep feelings for him. According to her, from
Hoosen’s perspective,
he did not see the relationship as a
serious one. This was because he had an interest in another woman,
who happened to be Muslim.
Ms Benjamin found this to be insulting and
hurtful. She became upset that Hoosen was not as responsive to her as
she would have
liked him to be.
[40]
Ms Benjamin stated that Hoosen’s intention was to have a cell
or group where he could influence
and promote his beliefs. He would
have meetings with young students at his flat for the purpose of
recruiting them and teaching
them how to be an activist.
[41]
Ms Benjamin testified that she did not support Hoosen’s
recruitment of people to fight
against apartheid. She claimed that
Hoosen thought he was better than everyone else. When questioned
about this, however, she conceded
that she wanted Hoosen to suffer a
little because of his interest in another woman. She also conceded
that her working with the
Security Branch was to make Hoosen suffer
for what he did to her, not for any public good.
[42]
In her statement, Ms Benjamin stated that while cleaning Hoosen’s
flat, she came across
subversive literature on how to train
communists. In oral evidence, she changed her testimony and conceded
that she was not cleaning,
but in fact snooping around to find
potential material to implicate Hoosen to the Security Branch.
[43]
According to the former Security Branch Officer, Mohun Deva Gopal
(“Gopal”), Ms Benjamin
called the switchboard at Fischer
Street; and her call was transferred to Captain Petrus Lodewikus du
Toit (“Du Toit”).
She informed Du Toit about a doctor
involved in manufacturing of chemical bombs. She advised that she was
fed-up with him because
he was involved in a relationship with her
and a Muslim woman. She was very bitter and wanted to get back at
him.
[44]
The Security Branch officers met Ms Benjamin at Delhi Restaurant,
under the command of Du Toit
and on an instruction of Major Joseph
Benjamin (“Major Benjamin”). Gopal was accompanied by
Warrant Officer Veera Ragalulu
Naidoo (“VR Naidoo”),
amongst others, who went to meet her. VR Naidoo, Sergeant Shanmugam
(“Schrewds”)
Govender and Gopal walked into the
restaurant to meet her.
[45]
They took her to Fischer Street in their vehicle. She was taken to Du
Toit’s offices where
she was questioned by Du Toit and Major
Benjamin. Gopal was part of the meeting and he testified that the
Security Branch received
extensive information about Hoosen
from Ms Benjamin.
Surveillance of
Hoosen
[46]
According to Gopal, he and members of the Security Branch had never
heard of Hoosen prior to
receiving information from Ms Benjamin.
After meeting with Ms Benjamin, approximately the next day or so,
Major Benjamin spoke
to Du Toit about hotwiring Hoosen’s flat.
A
tamatie
was placed in Hoosen’s flat by Lieutenant Vic
MacPherson and Schrewds. A
tamatie
was how the Security Branch
referred to a concealed listening bug. The Security Branch had access
to Hoosen’s flat through
the keys provided to them by Ms
Benjamin. The Security Branch made copies of the keys. Hoosen’s
home and place of employment
were tapped.
[47]
It was then decided to observe Hoosen for 24 hours, round the clock.
They had six teams. VR Naidoo
was part of one team. At some stage
Schrewds and Major Benjamin gained access to Hoosen’s flat with
the keys provided to
them by Ms Benjamin. Papers in the flat were
photocopied and the originals returned.
[48]
Ms Benjamin remained in contact with the Security Branch and gave
them feedback on what was happening
every two or three days. Ms
Benjamin advised Gopal and the Security Branch that Hoosen gave
lectures to Muslim students every Thursday
evening at his flat and
taught them how to manufacture bombs. Based on this, the Security
Branch concluded that Hoosen was lecturing
on manufacturing
explosives.
[49]
Surveillance went on for approximately four months, beginning in
April 1977. Gopal listened to
the conversations that took place in
the flat. He had a special interest in Thursday nights because those
were the days that Hoosen
held lectures for two Muslim men from Port
Shepstone, between 20h00 and 22h00. He claimed that he heard Hoosen
giving lectures
on the manufacturing of chemical bombs.
[50]
Gopal was also tasked with observing who was entering and exiting
Hoosen’s home.
Akoo, a friend of Hoosen, remembers Hoosen
telling him that he thought he was being followed while driving
around Durban City areas.
Akoo knew that Hoosen had two romantic
partners. He recalled that both lovers had keys to Hoosen’s
flat. Lieutenant James
Brough Taylor (“Taylor”) testified
at the first inquest that he and Du Toit saw Hoosen drive past them
in central Durban
between 21 June and 5 July 1977. This seems to
confirm that Hoosen was being monitored by the Security Branch.
[51]
Moodley was at Hoosen’s flat on 15 July 1977 when Hoosen
received a phone call where he
was “argumentative, dismissive
and most of the time, rude”. After Moodley enquired who the
caller was, Hoosen said
it was Ms Benjamin. According to Moodley,
Hoosen advised him that Ms Benjamin was upset since she found out
that he was courting
another woman, a Ms Shaida who was a “student
at University of Durban Westville (UDW)”.
[52]
Moodley expressed his concern at the state of Hoosen’s
relationship with Ms Benjamin, as
this could impact on their
political work. He said he told Hoosen that “complications from
a scorned ex-girlfriend were unnecessary”.
Hoosen agreed. Ms
Benjamin said she last saw Hoosen between 23 and 26 July 1977, before
he died.
Hoosen’s
final visit in Pietermaritzburg
[53]
On Sunday, 31 July 1977, and on his return from a trip to Mumbai,
India, Moodley was visited
by Hoosen at his parent’s home in
Pietermaritzburg, at around 16h00. Hoosen informed him that a
coloured nurse (who worked
with him) informed him that she overheard
Ms Benjamin reporting his political activities to the Security
Branch. Hoosen told Moodley
that he was “not worried, nor was
he scared and certainly not suicidal, but only looking for advice”.
[54]
After discussing the matter, the two agreed that Hoosen should leave
the country. Hoosen told
Moodley that he would inform him once he is
out of the country. Between 1 and 2 August 1977, while Moodley was on
emergency call
at hospital, he called Hoosen (“several times”)
but there was no answer. Moodley said he assumed, erroneously, that

Hoosen had left the country.
[55]
Going back, after meeting Moodley, Hoosen went to his family home in
Pietermaritzburg. According
to Sarah, he was “in good spirits”
and was playing with his nieces and nephews. On that Sunday evening,
31 July 1977,
Hoosen visited his brother Ismail, at his home in Loop
Street, Pietermaritzburg and played scrabble with Ismail’s son.
He
left around 22h00 to go back to his parent’s house in Church
Street, Pietermaritzburg.
Hoosen’s
return to Durban
[56]
Hoosen left Pietermaritzburg for Durban on the morning of 1 August
1977, between 06h00 and 06h30.
In the evening, Akoo, Nundkumar and
Hoosen had dinner at Hoosen’s flat. The three friends spent
time “reminiscing of
the past”.
Arrest of Hoosen
[57]
On 2 August, 1977 at around 06h00, Du Toit called his unit members
and explained that there was
enough to conclude that there was
sufficient cause to arrest Hoosen for the purpose of interrogation.
Gopal conceded in cross-examination
that he could not state whether
there was enough evidence, at that stage, against Hoosen to secure a
conviction.
[58]
Gopal testified that around 06h30 Du Toit commanded his unit to get
all their cars lined up as
when Hoosen left his flat, they were to
follow his vehicle and come to a specific point where they felt it
was safe to have him
arrested. Du Toit led the line of vehicles with
Taylor, then Gopal and Schrewds, and then VR Naidoo and MacPherson at
the end.
[59]
Between 07h47 and 08h00, Hoosen was forced off the road and arrested
by Du Toit, Taylor, MacPherson,
Schrewds, Benjamin and Gopal.
According to Gopal the apprehension of Hoosen amounted to a
kidnapping.
[60]
Hoosen’s vehicle was forced onto a grassy patch. The unit
members alighted from their vehicles.
Taylor was the first to open
Hoosen’s car door and pull him out of the vehicle.
[61]
Contrary to Du Toit and Taylor’s evidence in the first inquest,
Hoosen did not resist arrest
and was not injured in any way at that
point. Gopal stated that the evidence of Du Toit and Taylor in the
first inquest that a
scuffle took place was a lie.
[62]
Hoosen was handcuffed and placed into Du Toit’s vehicle. Hoosen
was not informed of any
charges against him and was not given any
procedural warnings.
[63]
Hoosen was then taken to the Brighton Beach Police Station. Gopal
conceded that, upon reflection,
Hoosen was taken to Brighton Beach
Police Station, rather than Fischer Street Security Branch offices in
downtown Durban, to make
sure nobody would know that he was being
abducted. Brighton Beach Police Station is located quite far from the
city centre in the
quiet suburb of the Bluff.
[64]
Gopal continued. They reached Brighton Beach Police Station at
approximately 09h00. It took approximately
an hour to get from
Overport to Brighton Beach because of heavy traffic. Hoosen was not
booked in at the charge office but taken
to a basement which was used
as an interrogation room. Gopal noted in cross-examination that upon
reflection, Hoosen was taken
to the basement so that the sound could
get drowned out, since things could get “a little messy”.
[65]
The court took time to conduct an inspection in loco of, inter alia,
the possible interrogation
room at Brighton Beach Police Station, on
18 August 2021. The room is situated in the basement of the
multi-storey building which
contains police barracks above it. Access
to it is isolated and can be gained through a separate driveway on
the south-west side
of the building. At the time of the court’s
visit, the room, which was identified by Gopal, was clearly
neglected; degraded;
flooded with stagnant water up to one’s
ankles and was filled with mosquitoes. It was unused at the time and
had apparently
been so for many years, according to Captain Kruger
the current commander of the police station.
[21]
Interrogation of
Hoosen
[66]
According to Gopal, the purpose of the interrogation was to firstly
find out who the two Muslim
men were that attended Hoosen’s
lectures; and secondly to find out more about the training he had
received in India. Gopal
stated that the first 24 hours of
interrogation were the most important, and as a result, were the most
intense. This was for purposes
of extracting information that could
lead to the capture of other suspects before they got wind of
Hoosen’s detention.
Assault and torture
[67]
Gopal’s evidence was that he was instructed to give Hoosen
food, escort him to the toilet,
and make sure he did not escape.
Taylor and Schrewds were the initial interrogators. Du Toit was also
in the room and Major Benjamin
intermittently entered and exited the
room.
[68]
Hoosen was first asked about his background and his training. He was
also asked about the lectures
he was giving every Thursday night.
Hoosen was asked to get out of his blue-grey safari suit and was left
with his white underpants.
Gopal conceded that the purpose of
stripping a suspect was firstly, not to leave bloodstains on the
clothing and secondly, to humiliate
him.
[69]
Hoosen was questioned by all the members of the Security Branch. The
assaults began around 09h15
or 09h20. Taylor initiated the assault by
slapping and punching Hoosen, with open palm slaps, kicks on his
kidney, along his back
and front, and on his legs and thighs.
[70]
The punches became more violent through the course of the day. Du
Toit also started assaulting
Hoosen, hitting him on the legs, ankles,
private parts, buttocks, back, face, neck arms and armpits. The
torture stopped temporarily
around 14h00 as the Security Branch
members “broke for lunch”.
[71]
Colonel Ignatius Gerhard Coetzee, who was second-in-command of the
Durban Security Branch, arrived
and asked Gopal to assist Hoosen in
putting his clothes back on. Hoosen could not bend because his entire
body was sore.
[72]
After lunch, Taylor resumed the torture, but this time more
intensively. Hoosen was already very
bruised all over his body but
not bleeding. Gopal could see marks all over his body as Hoosen had
quite fair skin. Gopal said that
Taylor dragged Hoosen by the back of
the neck to the toilet and made him drink the water from the toilet.
[73]
Hoosen was struggling to breathe and resisted by pushing himself up.
As a result, he fell back
and hit his head against the wall and fell
on the ground. Hoosen was then dragged back to the interrogation
room.
[74]
After this episode, the assaults continued. Hoosen still did not
disclose any information or
anything that constituted intelligence.
At this point the Security Branch had no evidence that would secure a
charge. Gopal testified
that the claim by Du Toit that Hoosen was
taken to Durban Bay where a scuffle broke out, was a lie put forward
at the first inquest
to explain the injuries on Hoosen’s body.
[75]
Gopal initially denied being part of the interrogation but later
conceded under cross-examination
that he was and that he did ask
Hoosen one or two questions. Gopal left the police station or should
I say the interrogation room
at some point to go to the shops to get
lunch. When he returned, he observed Hoosen being assaulted again.
Hoosen collapsed on
the floor after his face hit a pillar as Taylor
was kicking and pushing him.
[76]
Hoosen was confronted with the documents retrieved from his flat. He
was also confronted with
the recordings obtained from the
tamatie
.
According to Gopal, and contrary to Taylor’s evidence at the
first inquest, he was confronted with these documents throughout
the
day and not only at 23h00.
[77]
Gopal stated that the torture concluded at around midnight because
the interrogators were “tired”.
The Security Branch
officers put Hoosen’s clothes back on and Taylor brushed his
hair back. Taylor took a towel and wiped
blood off Hoosen’s
lip.
The charge office
Gopal’s account
[78]
According to Gopal, Hoosen was then taken to the charge office by
Schrewds, Taylor, Du Toit and
himself. He said Hoosen walked very
slowly but walked upright for a short while before bending over
again. He claimed that Hoosen
did not have to be carried to the
charge office.
[79]
Gopal denied Taylor and Du Toit’s version at the first inquest
that he, Schrewds and MacPherson
were out doing further
investigations at the time, and were then called back via radio to
Brighton Beach and only then escorted
Hoosen to the charge office. In
cross-examination it was put to Gopal that the reason Taylor and Du
Toit presented such fabricated
evidence, which removed them from the
scene, was because Hoosen was either debilitated and could barely
move or he was probably
dead by that time. Gopal denied this. He
testified that Hoosen was most likely killed because dead men “tell
no tales”.
However, he denied that Hoosen died under
interrogation. This contrasted with the expert evidence of the
pathologist, Dr SR Naidoo
(“Naidoo”), who concluded that
Hoosen would in all probability have been dead by this time.
[80]
According to Gopal, Hoosen was then booked in by the charge office
sergeant. It was not disclosed
to the charge office staff that Hoosen
had sustained injuries. Gopal testified that Taylor told Hoosen that
if he disclosed his
injuries, he would  be taken back in for
more “questioning”. He said Hoosen was trembling at the
time because
of how weak he was.
[81]
Gopal disputed Naidoo’s evidence that if Hoosen was not already
dead, he would have been
in a lowered state of consciousness. When
cross-examined on the injuries to Hoosen’s arms, Gopal stated
that he did not notice
any injuries on Hoosen’s arms. This
claim contrasts with the medical evidence, to be dealt with below,
which confirms injuries
on the arms.
[82]
Gopal was of the view that further torture must have taken place in
the cell, after he left.
According to Constables Johannes Nicolaas
Meyer (“Meyer”) and Hugh Derek Naude “(Naude”),
uniform branch
members on duty that night at the charge office,
Hoosen was booked in injury-free and no one entered the cells after
he was locked
up.
[83]
Gopal testified that if there were injuries on Hoosen’s arms at
that time, charge office
staff would have noticed and duly recorded
this in the occurrence book. Gopal felt that the evidence of Naude
and Meyer ought not
be accepted because they would have collaborated
with whoever inflicted those injuries on Hoosen in his cell.
Meyer’s account
[84]
Meyer gave a different version. According to him on the night of 2
August, 1977, he was on duty
at the Brighton Beach Police Station’s
charge office when Hoosen was brought into the charge office before
midnight. He was
on duty with two other uniform branch members,
namely, Naude and Constable Shadrack Madlala (“Madlala”).
Meyer was
on shift between 22h00 and 06h00 the next morning.
According to Meyer, Hoosen was detained as a “political
prisoner”.
[85]
Meyer testified that he was not aware that Hoosen had been in the
building since early that morning.
He was also not aware that any
interrogations took place at the basement storeroom. He conceded that
it was irregular or even illegal
for the Security Branch to bring a
detainee to the basement storeroom for interrogation without doing
any paperwork.
[86]
He said that Hoosen was accompanied by two well-built white Security
Branch members. He could
not recall any Indian members accompanying
Hoosen. Hoosen was dressed in a short sleeve safari suit and shoes
and walked in quite
normally. He described Hoosen as nervous and
“shaking a bit”.
[87]
Meyer claimed not to have seen any injuries or signs of assault, or
bruise marks, on him at that
stage. He said he asked Hoosen if he had
any injuries and Hoosen said no. Meyer conceded that this was
inconsistent with the evidence
of Gopal that Hoosen was severely
beaten. He also conceded that his evidence was inconsistent with that
of Naidoo who asserted
that Hoosen would have been in great
discomfort.
[88]
Hoosen removed his trouser belt, shoelaces and other items from his
person which were booked
into the prisoners property register. He
said Hoosen removed these items himself, in the presence of Meyer.
Meyer asked Hoosen
to finish a cold drink he was drinking but the
Security Branch members apparently countermanded him and said Hoosen
could take
it with him to the cell. Hoosen was then physically
searched and was found to have no other property on his person.
Naude’s account
[89]
Naude’s version dovetails with that of Meyer’s. He was on
duty on the night in question,
from 21h00 to 07h00 the next morning.
He said he was not aware of the fact that Hoosen was being
interrogated at the Brighton Beach
Police Station. In fact, he
claimed that it was the first time he ever heard about this fact.
[90]
According to Naude, on this day at around midnight, two white plain
clothed men arrived at Brighton
Bridge Police Station, identified
themselves as Security Branch members and informed him that Hoosen
was a political prisoner and
nobody was allowed to communicate with
him, apart from the Security Branch members.
[91]
Naude said that Hoosen wore a trouser and a shirt. He claimed that
Hoosen was in “perfect
health” but appeared to be looking
tense. He conceded that if Hoosen was wearing a short sleeve safari
suit, and had sustained
injuries on his arms, he would probably have
seen such injuries.
[92]
He said Hoosen was stripped of standard items specified for cell
detention, at the time. These
items are logged in the cell register
and occurrence book; and Hoosen was then taken to the cells by Naude
and his colleague.
[93]
In cross-examination it was put to Naude that it was the evidence of
Naidoo and Dr Holland that
Hoosen’s time of death would have
been at least by midnight. Naude said that he did not know how that
was possible because
he saw Hoosen being taken to the cells. He
agreed that it was not proper procedure to place Hoosen directly into
the interrogation
room without being booked in and filling out the
proper paperwork.
Taking Hoosen from
charge office to cell
Gopal’s account
[94]
Gopal denied Taylor’s evidence at the first inquest that he was
not part of the group that
escorted Hoosen to his cell. He insisted
that he accompanied Hoosen to his cell. According to Gopal, Hoosen’s
injuries were
noticeable as he had visible bruises and lacerations.
At this time, he says, Hoosen was conscious and could walk very
softly.
[95]
While in the cell, Gopal claims to have spoken to Hoosen. He told
Hoosen that he was getting
a two-hour break before the rest of the
officers would be back.
[96]
When it was put to Gopal that it was improbable that his evidence was
correct because it was
the expert opinion of Naidoo that Hoosen would
have either been in a state of absolute distress and pain, or
unconsciousness, or
even dead, Gopal denied this and insisted that
Hoosen was alive at the time and was able to walk from the charge
office to the
cell.
[97]
Gopal said that when he left the cell, Hoosen still wearing the same
safari suit he had worn
since the morning. In examination, Gopal said
that the clothing Hoosen wore in the post-mortem images, the long
sleeve shirt, was
not the same clothing he saw him in during the day
of his torture, being a short sleeve safari suit. Gopal claimed that
the long-
sleeved shirt was probably placed on Hoosen to hide his
injuries. He claimed that this shirt must have been put on Hoosen
after
he (Gopal) left the cell.
Meyer’s account
[98]
Meyer states that around 23h00 or 23h30, Hoosen was escorted to a
holding cell by himself and
Naude, in the presence of Security Branch
members. He claims that Hoosen was able to walk freely, without
assistance from anyone.
After Hoosen was placed in his cell the
normal procedure of locking the doors was followed. According to
Meyer, the Security Branch
members then left the police station and
the uniform members returned to the charge office.
Naude’s account
[99]
Contrary to Gopal’s evidence, Naude said that he, together with
a colleague and the Security
Branch officers took Hoosen to his cell.
He could not recall any Indian members walking with him. He also
claimed that Hoosen had
no issue walking to his cell.
Cell monitoring
[100]
According to Meyer, the cells were inspected every hour in teams of
two. He claimed that on the first hour he
and a colleague visited the
cells, which was most probably between 00h00 and 01h00.
[101]
According to Naude, after Hoosen had been placed in his cell, normal
cell visits and procedures were adhered to
for the remainder of his
shift. These procedures included checking the number of prisoners and
that cell doors were correctly closed.
He said he would enter the
cell to confirm this, however, no communication was made with Hoosen.
Cell visits occurred every hour
until 04h00 when Hoosen was
discovered dead. Naude agreed that, since it was not practice to wake
detainees during cell visits,
there is a possibility that Hoosen
could have already been dead during his prior visits.
[102]
According to Naude, the last cell visit was at 06h00 on the morning
of 3 August 1977. When it was put to him that
his testimony at the
first inquest was that he saw the dead body during his visit at
04h00, he said he was convinced it occurred
prior to handing over to
the next shift at 07h00, but conceded that his memory might be shaky,
given the lapse of so many years.
Death scene
Meyer’s account
[103]   At just
after 04h00, upon opening the door, Meyer claimed he noticed that
something was abnormal about the scene.
According to him Hoosen was
laying on the floor on his back; his lower body was naked; with
something attached to his neck and
tied around the bars of the
“safety gate”, on the inside of the cell; and the knot
was tied very tightly in a koeksister
formation.
[104]   On
entering the cell, Meyer says he saw Hoosen’s trousers tied
around the bars of the safety gate with the
leg parts twisted around
his neck. According to Meyer, no person was allowed to visit the
cells. The officers in the charge office
held the keys. If any
officer, including members of the Security Branch, issued a higher
command to release the keys, he insisted
that he would not follow the
command. Instead, he would have escorted the Security Branch member
to the cell.
[105]   While
Meyer said he believed it was suicide, he conceded that he could not
automatically assume that it was in
fact suicide since there is
evidence from other re-opened inquests that other political prisoners
would not have caused their own
deaths.
Naude’s account
[106]   On the
last cell visit prior to handing over responsibilities to the morning
shift, Naude said he found Hoosen
lying on the floor of his cell with
his head against the bars of the inner cell door. His trousers were
threaded through the bars
of the cell door and around his throat,
twisted tightly and his knees were pulled up towards his stomach.
Post death
[107]   In the
re-opened inquest both Naude and Meyer claimed that they were the
first (with Madlala) to discover Hoosen
dead in cell number 2 on
their cell visit at 04h00 on the morning of 3 August 1977. In the
first inquest, Naude testified that
it was he who discovered Hoosen’s
dead body.
[108]   After
discovering the body, Naude contacted his immediate superiors who
took control of the situation, and they
were instructed not to leave
the premises until advised that they could do so. According to Meyer,
the Security Branch members,
the Station Commander Captain Potgieter,
and standby Criminal Investigation Department (“CID”),
Warrant Officer Bezuidenhout
were immediately telephoned. Other
Security Branch members, such as Du Toit and Taylor, arrived on their
own approximately 15 minutes
later.
[109]
According to Du Toit’s testimony in the first inquest, Captain
Schourie took him to the cell. Then Colonel
Stadler arrived with his
former chief, Brigadier Steenkamp. Prof Gordon (“Gordon”)
was then telephoned.
[110]
According to Meyer, the Security Branch instructed the uniformed
branch members to leave the scene. The Security
Branch thereafter did
their own investigations. It is not known what “investigations”
were carried out by the Security
Branch and who amongst them carried
them out, but it would appear they entered the cell before the
Forensics Unit carried out their
duties.
[111]   Du
Toit, together with Taylor, were thereafter assigned to pick up
Gordon. Meyer could not remember what time
they picked up Gordon. We
do however know that the examination in the cell occurred at 07h00.
[112]   The
police investigation that followed, can only be described as
substandard. It appears it was largely designed
to prop up the cover
story of the Security Branch. More about this later in the judgment.
[113]
Sergeant Richard Phillip Law of the South African Medico-Legal
Laboratories 95 Gale Street, Durban removed Hoosen’s
body from
Brighton Beach Police Station and transported the body to the
mortuary. We do not know what time Hoosen’s body
was
transported to the mortuary from the police station, but it must have
occurred after Gordon conducted his examination in the
cell at 07h00.
[114]
According to an interview by Christian de Vos of the University of
Westville’s “Voices of Resistance”
Oral History
Project which he conducted with Yusuf, on 25 May 2002,
[22]
two white males approached him on the morning of 4 August 1977 and
informed him that his brother had committed suicide. He was
informed
that a post-mortem was going to be conducted and that he should phone
Gordon if he wanted to know anything.
[115]   Yusuf
called Gordon’s office and was advised that Gordon was already
at the police mortuary in Gale Street,
and that if Yusuf wanted to
have a doctor present he should hurry, because Gordon was going to
start the post-mortem. Yusuf called
his friend Dr Yusuf Chenia
(“Chenia”) and asked him to be present at the post-mortem
and to arrange for a pathologist.
Chenia could not arrange a
pathologist to be present and thus attended the post-mortem alone.
The post-mortem began at approximately
10h20. Chenia did not give
evidence at the first inquest nor was there any statement of his in
the record or exhibit list.
The mortuary
[116]   On 3
August 1977, Amena Motala (“Amena”), a friend of Hoosen
and Hoosen’s aunt, Rahim, were
dropped off by Amena’s
husband at a museum. Her evidence (contained in an affidavit filed of
record) was that she was dropped
off at the museum early in the
morning, by her husband who was on his way to work. Her husband
returned to the museum approximately
two hours later and said that
they needed to urgently go to the government mortuary in central
Durban.
[117]   The
Motalas and Rahim attended the mortuary where two white Security
Branch officers were waiting for them. Amena
spoke to these two
officers whose names she could not remember. She informed them that
she was present to identify the body of
Hoosen.
[118]
Hoosen’s body was then released and uncovered. Rahim was
emotionally struck by Hoosen’s injuries and
left the room.
Amena observed the following injuries: burn marks underneath the
soles of his feet which she believed could have
been caused by an
electrical instrument; many bruises on his body and head which she
believed was caused by an assault; and his
face was swollen.
[119]   Amena
confronted the Security Branch officers and said that Hoosen did not
look like he killed himself. They did
not respond but gave her a “bad
look”. Later that day, Yusuf identified the body, and carried
out Hoosen’s Islamic
burial rights.
Bathing of the body
[120]
Hoosen’s body was then transported back to Pietermaritzburg to
be bathed according to Muslim tradition.
Biggs was asked by the
Haffejee family to examine the body at the family home in Church
Street, Pietermaritzburg at approximately
17h40. It is not clear
whether this examination occurred before or after Hoosen’s
ceremonial bath.
[121]   Dr
Chota Motala (“Motala”) was also present. Biggs directed
a photographer who took photos of the
body. Ismail removed the white
calico covering (or “kaffan”), and was shocked to see the
condition of his brother’s
body. He recalls seeing the
following injuries on Hoosen’s body: bruises, most notably on
the back and sides; brown dots
that looked like the burns on his
inner thighs and in and around the genital area; swelling of the
face; and depressions in and
around the wrists, under arms and
genital areas.
[122]   With
all these injuries, Ismail believed that his brother had been
tortured, and he “could not reconcile
hanging with these
injuries”. Ms Hajera Beebee Subedar, Hoosen’s maternal
aunt, stated that at the funeral, she saw
Hoosen’s face and
described it as swollen.
[123]   When
Moodley saw Hoosen’s body he “noticed all the wounds
(over 50) on his body, some look like electrical
burns and others
where his skin appeared to have been removed by unknown instrument.
His face and skull were also swollen and bruised”.
Hoosen’s
physical and mental well-being
[124]
According to Sarah, Hoosen as a young man showed no signs of
depression. She saw him during the weeks prior to
his death,
including the weekend before, and he did not seem any different. He
was not displaying any signs of anxiety or stress.
[125]   Sarah
said that no one believed the police when they claimed that her
brother had committed suicide. To her, it
“sounded bizarre”
because in the Islamic faith, suicide is not permissible. Hoosen knew
about that principle. He knew
that committing suicide was a sin and
that if he did, he could not be buried in the designated Muslim area
of the cemetery. Hoosen
was however buried in the designated Muslim
area of the cemetery, because nobody in the community believed he had
committed suicide.
[126]   Ismail
insisted that his brother believed strongly in the Muslim doctrine -
that life is sacred, and it is only
God that can take life away
prematurely. It is well known to Muslims that if they take their own
lives prematurely it is a grave
and unforgivable sin. Ismail cited
the Islamic doctrine that life comes from God; life belongs to Him
and it is He who takes away
life.
[127]
According to Ismail, Hoosen had no health conditions and was very
healthy. He said his brother “was jovial”
before he left
his house on Saturday evening before his death. He had “no
injuries or complaints”.
[128]   Akoo
last saw Hoosen when they had dinner at his flat on Sunday evening
before his death. When he left Hoosen’s
flat, around 22h30, he
did not recall Hoosen being “unhappy”.
Gopal’s
instruction to cover up
[129]   Gopal
claimed that he was informed of Hoosen’s death by Taylor in the
morning after his death when he bumped
into Taylor at the Fischer
Street offices. He then met Major Benjamin and asked him what had
happened. Gopal says that Benjamin
put his finger to his lips and
told him to keep quiet. He says he had a bad feeling that Benjamin
knew what happened but did not
want to tell him.
[130]
According to Gopal, on that morning, Du Toit called all the Security
Branch officers who were present during the
interrogation and said
that they might be called to give evidence at the first inquest and
that they should “have (their)
story prepared”. The cover
story was that Hoosen had confessed that there was a dead letter box
at the Durban Bay and that
they had taken him there to point out
where he had hidden documents on the manufacture of explosives,
chemical bombs and instructions
on how to deal with interrogation.
[131]   The
interrogation team was told by Du Toit that he will be dictating to
each member what they should say. Du Toit
then called in each member
one by one. Gopal was told that he would have to say that Hoosen was
not handcuffed and that he tried
to escape. During this process,
Hoosen got violent and had to be restrained, and in the process his
body struck various parts of
the car. Du Toit gave Gopal a four-track
cassette on which to record his story.
[132]   Du Toit
also instructed Gopal and MacPherson to go to Hoosen’s flat to
remove the listening bug, which was
removed by MacPherson and
Schrewds. Gopal admitted that as a member of the interrogation team,
he was willing to collude and lie,
so the truth could be swept under
the carpet. Ultimately, Magistrate Blunden accepted the Security
Branch’s cover story and
concluded that nobody was to be blamed
for Hoosen’s death.
Post-death
intimidation by the Security Branch
Sacoor and Gangat
[133]   On 4
August 1977, the day after Hoosen died, a doctor from King Edward V
Hospital called Sacoor to ask where her
husband, Gangat was. It
appears Gangat had disappeared, which I am told was unusual, as his
car was still parked at the hospital.
[134]   Later
that day, Sacoor received information from her brother that a Mr
Farouk Moolla found her husband wandering
around on Stamford Hill
Road, Durban between 12h45 and 13h00. Moolla took Gangat to Sacoor’s
brother’s shop in Victoria
Street. After taking Gangat home,
Sacoor learned that he had been tortured by the Security Branch.
[135]   Gangat
died in 2017, so the account below is Sacoor’s recollection of
what he told her. Gangat told Sacoor
that two men from the Security
Branch arrived at his hospital and asked him if he knew Hoosen. He
answered in the affirmative and
he was instructed to follow them to a
car. Gangat scribbled a note to one of the nurses at the hospital to
say that he had been
taken by the Security Branch.
[136]
According to Sacoor, Gangat was blindfolded in the car. While in the
car, Gangat was asked about what he and Hoosen
had been discussing
over the phone the day before Hoosen was arrested. Gangat replied
that they talked about the day’s work
schedule, but the
Security Branch officers did not believe him.
[137]   When
they reached an unknown place, the Security Branch took him to an
unknown room. In this room, the Security
Branch asked Gangat if he
was a communist and whether they were planning unrest in the country
and if Hoosen was trained to make
bombs. Gangat told them they were
not communists but dentists, and that he and Hoosen never talked
about bombs or communism.
[138]   This
upset the Security Branch members. Gangat was then taken to another
room where he was subjected to forms
of torture: by being stripped
naked; his head pushed repeatedly into a container of water; shocked
with electrodes on his head;
his hands and feet tied behind and hung
upside down by his feet; and beaten and forced to say what he knew
about Hoosen and about
their plans which lasted for more than an
hour.
[139]   Sacoor
testified that the Security Branch followed her husband everywhere
following Hoosen’s death. Sacoor
and Gangat realised that
Gangat’s phone at the hospital must have been bugged, and that
is how the Security Branch knew that
Gangat and Hoosen had been in
contact.
[140]   Their
domestic workers were interrogated and threatened. The couple were
followed to and from work and Gangat’s
practice was repeatedly
raided, which had an adverse effect on patients. They discovered that
Gangat’s hospital phone had
been bugged by Johnny Swanepoel, a
police reservist, who had been planted at the hospital by the
Security Branch.
Sarah
[141]   Sarah
testified that her elder brother, Yusuf, was hanging up photographs
of Security Branch police officials
Taylor and Du Toit outside their
family shop window with the caption which read “Who killed
Hoosen”. Police officers
came to the shop to instruct him to
remove the photographs, but he refused.
[142]   Sarah
also recalled that police officers came to their home around midnight
to search the house. She could not
recall the date. They searched her
mother’s and Hoosen’s rooms. They also tried to search
Yusuf’s room, but he
refused to let them in.
Ismail
[143]   After
Hoosen’s death, Ismail said that the Security Branch started to
follow the Haffejee family. In one
instance, he recalled Security
Branch vehicles parked opposite the family shop and they watched who
came in and who left.
First inquest
[144]   At the
first inquest, the Haffejee family was represented by Dr W Cooper SC,
Mr ASK Pitman and Mr I Mahomed.
[145]   The
family’s case was that Du Toit and Taylor used third degree
methods and deliberately inflicted injuries
on Hoosen while in
interrogation. Since the Security Branch believed that Hoosen had
been trained in urban terrorism and belonged
to a subversive
movement, the Security Branch had a powerful motive to apply
excessive and extreme interrogation methods. Accordingly,
the core
focus of the family’s representatives was on the injuries
sustained by Hoosen.
[146]   Counsel
for the family challenged the versions of Du Toit and Taylor that
Hoosen sustained these horrific injuries
by resisting arrest. This
was because Du Toit and Taylor were unable to explain, with reference
to specific incidents, how each
injury was sustained. Dr Lorentz, a
surgeon, asserted that the nature, extent and distribution of the
injuries indicated that they
could not have been sustained in the
manner described by the Security Branch members.
[147]   Lastly,
the family argued that it was these deliberate assaults that
ultimately led to the death of Hoosen. However,
Dr Cooper, quite
inexplicably, agreed with the Magistrate that he could not ask for a
finding that the death of Hoosen was brought
about by any act or
omission as contemplated in the Inquest Act. It is submitted in this
inquest that there was no factual or legal
basis for Dr Cooper to
have made such a concession.
[148]   D
r
Cooper
urged the court not to make a finding of suicide because
the Inquests Act did not require a court to go that far in making a
finding.
Astonishingly, Magistrate Blunden agreed, and made the
finding that nobody  was responsible for Hoosen’s death,
even
though he had died in unnatural circumstances, and Magistrate
Blunden had apparently already concluded that Hoosen had committed

suicide.
The first inquest
court judgment
[149]
Magistrate Blunden found that the evidence of Du Toit and Taylor
coincided in all material respects. It is submitted
by the family’s
counsel that this is hardly surprising given that the two had
colluded in the cover-up. Their evidence will
be considered together,
for the purposes of the first inquest.
Du Toit and Taylor
[150]
Magistrate Blunden accepted the following evidence of Du Toit and
Taylor, without question:
(a)
The Security Branch had been interested in the activities of Hoosen
since about April 1977.
(b)
During this time, entry was gained into Hoosen’s flat, and
documents removed, photocopied
and replaced. These documents were
highly incriminating in that they showed Hoosen engaging in
subversive activities.
(c)
It was decided that Hoosen be arrested to question him and perhaps
charge him. According
to Taylor, at around 06h30 on Tuesday, 2 August
1977, Taylor, Du Toit, MacPherson, Lieutenant Moonsamy, Adjunct
Officer Naidoo,
and Gopal arrived in the vicinity of Hoosen s’s
flat.
(d)
On driving away from his flat, Hoosen was pursued by Taylor. Taylor
signaled Hoosen to pull
over. Hoosen failed to comply, which resulted
in Taylor forcing him off the road by cutting in front of him. Since
Hoosen was believed
to be a trained saboteur, and it was thought he
might be dangerous, it was prearranged between Du Toit and Taylor
that Hoosen’s
car would be immediately assessed for weapons.
(e)
However, Hoosen resisted arrest. Du Toit then came to Taylor’s
assistance and gripped
Hoosen from behind, bumped Hoosen up against
his car and held him in that position until Taylor established that
he was unarmed.
Hoosen refused to accompany them to the police
station. Du Toit and Taylor placed Hoosen into his car by force, but
he put up a
“spirited” resistance.
(f)
Du Toit claimed that he did not want to use excessive force because
he did not want
to injure Hoosen unnecessarily. As a result, he
struggled to get Hoosen into his own vehicle. Eventually, Taylor
pinned Hoosen
down on the seat while Du Toit pulled him into the car.
(g)
Hoosen was then taken to Brighton Beach Police Station where he was
interrogated for various
periods during the day, until 20h00 when
Hoosen was taken to the North Pier.
(h)
According to Taylor, Hoosen was first questioned from 09h20 to 11h00.
(i)
According to both Taylor and Du Toit, from 11h00 to 13h00 Hoosen was
taken to
various unidentified locations in the greater Durban area by
Taylor, Du Toit, MacPherson and Lieutenant Moonsamy.
(j)
According to Taylor, between 13h30 and 14h15 a lunchbreak was taken.
Hoosen
was in a room with Taylor, Du Toit, MacPherson and Moonsamy.
(k)
Taylor states that Hoosen was interrogated between 14h15 and 16h15.
Hoosen then had
a break between 16h15 and 16h30 before interrogation
continued. Between 16h30 and 18h20 Hoosen was interrogated about his
reading
habits.
(l)
Du Toit’s version was that the interrogation continued from
14h15 for
four hours, until 18h00.
(m)
According to Taylor, Hoosen took a break between 18h20 to 18h40 when
he had a sandwich and a cooldrink.
The interrogation resumed on the
question of certain literature. At around 20h00 Hoosen eventually
told them that the literature
was dumped in the sea.
(n)
At the North Pier, Hoosen was instructed to point out where the
supposed subversive literature
was. He did the pointing, but nothing
was found. Hoosen  was thereafter ordered to get back into the
vehicle but refused.
For the second time that day, force had to be
used. Another physical struggle ensued, and he was forcefully taken
back to Brighton
Beach Police Station at around 21h20 where the
interrogation continued.
(o)
Du Toit and Taylor were adamant that Hoosen’s injuries were
sustained during the periods
in which he resisted arrest.
(p)
At around 23h00, photocopies of the documents seized from Hoosen’s
flat were shown
to him. Up to that point, and according to Taylor,
Hoosen was unaware that the Security Branch had these documents. This
caused
Hoosen to become visibly shaken.
(q)
The documents were photocopies of the originals and included a
handwritten document, for
which the Magistrate accepted the evidence
of the handwriting expert, Warrant Officer Pretorius, to be the
writing of Hoosen. Allegedly,
the documents proposed a general
insurrection and detailed instructions of how death and destruction
may be used to achieve such
an insurrection. The handwritten
document, contained details of how to make a wide variety of
explosives and incendiary devices,
the ingredients required, and
diagrams for their manufacturing.
(r)
This caused Hoosen to become extremely uncooperative. Shortly after
midnight, when
it became apparent that no progress was being made,
the interrogation was suspended until the next morning.
(s)
At the charge office, Hoosen was handed over to the uniform members
on duty where
the formalities were completed. He was then taken to
cell number 2 where he was locked up for the night.
(t)
Du Toit and Taylor were wholly unaware of any injuries sustained by
Hoosen.
He showed no signs of having been injured and made no
complaint to the Security Branch or the uniform members at the charge
office.
They could not connect any injury to either of the two
struggles. Both noticed that, at various points in time, Hoosen’s
body encountered various parts of the cars in question. According to
both, Hoosen could have easily bumped his head on the radio
console
protruding between the two front seats, while resisting arrest.
(u)
In cross-examination, it was put to Du Toit and Taylor that they were
bigger, heavier and
stronger men than Hoosen. Both explained that
subduing Hoosen would not have been an issue due to their superior
physical advantages.
Hoosen could have easily been a subdued and
placed in the car. However, they claimed that their objective was to
use as little
force as possible to avoid causing unnecessary injury.
(v)
Du Toit claimed that it was extraordinarily difficult to thrust even
a small man into
a vehicle if such person was declining to cooperate.
Naude
[151]   Naude
was a 19-year-old uniform branch constable in the charge office at
Brighton Beach Police Station. His evidence
was that no one had
access to Hoosen from the time he was locked in cell number 2, except
Meyer, himself and Madlala. He said he
had sole custody of the cell
keys. Every hour on the hour, he and Madlala carried out a cell
inspection.
[152]   At
03h00, Hoosen did not exhibit any signs of injury and made no
complaints while lying on the cell mat. Hoosen
was awake and did not
sleep that evening.
[153]   At
around 04h00, Naude found Hoosen dead, suspended by his trousers.
Senior officers, including Du Toit, were
called in and at 07h00
Gordon arrived at the station.
[154]   It
should be noted that the other two charge office policemen, Madlala
and Meyer, were not called to testify in
the first inquest. They
provided statements, which were labelled as exhibits “X”
and “Z”, but these form
part of the missing exhibits from
the first inquest.
Gordon
[155]
According to Gordon, the probable time of death was between 03h00 and
04h00. Gordon was of the view that Hoosen’s
injuries were
sustained within a period of four to 12 hours before his death.
[156]
Gluckman and Lorentz, the experts for the family, differed with
Gordon and concluded that the lesions from the
back and the right
iliac crest were probably inflicted between eight and 24 hours before
death and at least one other injury would
have occurred between four
and six hours before death.
[157]   In
addition to the superficial injuries, a dissection made by Gordon
revealed:
(a)
Varying zones of engorgement in the intestines and an area of
extravasation of blood in
the substance of the mesentery.
(b)
Extensive extravasation of blood in the subcutaneous tissue and
muscles of the scalp.
(c)
There were no fractures to the skull and his thick mop of hair may
have cushioned
any blow to the head.
[158]   In
examining the ligature mark, Gordon excluded the possibility of
post-mortem hanging. This conclusion was disputed
by Naidoo, as will
be discussed below.
[159]   The
knots in the trousers were examined by Neethling. The consensus
between Neethling and Gordon was that there
was nothing out of the
ordinary about the knots and they were the kind of knots a layperson
might have tied. Neethling performed
a simulation which was recorded
on video and shown to the court, which persuaded the Magistrate that
Hoosen would have been capable
of committing suicide in the way
postulated by Neethling. The video has since disappeared. The
conclusions of Neethling and Gordon
are disputed by an expert witness
and mechanical engineer, Thivash Moodley (“Thivash”), as
will be discussed below.
[160]   Gordon
concluded that Hoosen’s death was consistent with hanging and
that the injuries, other than those
attributable to the ligature, in
no way contributed to Hoosen’s death. Gordon suggested that the
injuries were minor except
the injury to the scalp and mesentery. He
said the bruises to the sternum, ribs and loins could be described as
“significant”.
[161]   Gordon
refused to comment on the probabilities of Hoosen’s injuries
being sustained as illustrated by Taylor
and Du Toit. He was not
prepared to comment on the mechanisms that caused the injuries, nor
was he prepared to make a scientific
assessment of the degree of
force required to cause them.
[162]   He
claimed that since a layperson was in as good a position as a
medically trained person to make the assessments
of this kind, he
would decline to give a view. He was however prepared to concede that
blunt force could take the form of a blow
with fists or a kick but
was not prepared to concede that the police version was far-fetched.
He ruled out the possibility that
the injuries could have been
self-inflicted in the cell, during the process of hanging.
Lorentz
[163]
Lorentz, the expert surgeon for the family, provided the following
evidence. The extravasation of blood into the
subcutaneous tissues of
the scalp required a direct blow of some significance. Such a blow
could not have gone unnoticed, and one
might reasonably have expected
Hoosen to have been dazed or concussed.
[164]   Though
speculative, he commented that the mechanics of injury to the scalp
would have been due to a direct blow
to the head of Hoosen. The same
applied to the injury to the mesentery. This sort of injury would
have caused a person to be winded
and if so, it would have been
noticeable.
[165]   He
agreed that the abraded bruises were not in themselves serious.
However, what was significant was that there
were many of them, and
their distribution was striking. Lorentz was of the view that it was
unlikely that Hoosen could have sustained
that many injuries during
two scuffles.
Findings of Magistrate
Blunden
[166]   In his
finding dated 15 March 1978, Magistrate Blunden found that:
(a)
The evidence of Taylor and Du Toit was found to be reasonably true.
(b)
There was no dispute about the events that followed after the handing
over of Hoosen by
the Security Branch to the uniform branch in the
charge office.
(c)
There was no suggestion by anyone that the death of Hoosen can in any
way be attributed
to a homicidal act on the part of any person or
persons.
(d)
No one seemed to have had a motive to kill Hoosen.
(e)
Hoosen would have been worth more alive than dead to the Security
Branch.
(f)
Hoosen, on the other hand, “
undoubtedly had a strong motive
to do away
with himself, no conclusion is reasonably possible
other than that he did just that; that
is, he committed suicide
by hanging himself”.
[167]
According to Magistrate Blunden, the mechanics of hanging did not
explain the injuries, however, the consensus
of all the medical
experts were that the injuries occurred before Hoosen was handed over
to the charge office staff. At least some
of the injuries were in all
probability sustained while in the custody of the Security Branch.
However, the Magistrate rejected
the view that the injuries were
deliberate and considered such an assertion as mere speculation.
[168]
Breathtakingly, he held that even if there were eyewitnesses to a
deliberate infliction of injuries, such evidence
would be entirely
irrelevant as such injuries were not related to the death of Hoosen.
Accordingly, Magistrate Blunden found that
Hoosen died by hanging and
his death was not brought about by any act or omission involving any
person. In a final act of absurdity,
he concluded that the Inquests
Act does not require a formal finding of suicide and made no such
finding.
Bias of Magistrate
Blunden
Approach of
apartheid-era magistrates
[169]
The apartheid system introduced a structural bias in the criminal
justice system, particularly in the magistrates’
courts, in
favour of the apartheid agenda. Magistrates were appointed
predominantly from the public service rather than the legal

fraternity. They were appointed by the Minister of Justice in terms
of s 9 of the Magistrates’ Courts Act.
[23]
The majority were former prosecutors who often interacted with
Security Branch members.
[170]
Magistrates and district surgeons were tasked with ensuring the
well-being of detainees. This placed magistrates
at the “
coal
face
” of the apartheid’s government’s
engagement with political prisoners.
[171]   The TRC
had the following to say about the magistracy as a whole:
‘
The
Commission deplores and regrets the almost complete failure of the
magistracy to respond to the Commission’s invitation,
the more
so considering the previous lack of formal independence of
magistrates and the dismal record as servants of the Apartheid
state
in the past’.
[172]   The TRC
also concluded that collusion had taken place between police and
prosecutors, who collaborated with police
to undermine the cases of
victims and/or their families.
[173]
In an affidavit provided to the re-opened inquest into the death of
Aggett, the late Mr Bizos SC referred to the
state of the magistrates
in South Africa under apartheid.
[24]
Mr Bizos pointed out that most apartheid era magistrates had no real
desire to reach the truth. It appeared that some of these
magistrates
saw it as their duty to protect organs of the state, such as the
police. Magistrates tended not to interrogate police
versions that
vigorously. By way of example, magistrates invariably never asked
police the most obvious question: why should a
detainee commit
suicide when he had the option of remaining silent under
interrogation?
[174]   Mr
Bizos noted that apartheid era inquest courts tended to minimise
evidence of the ill-treatment of detainees.
Official police versions
were often contradicted by forensic pathologists who examined the
bodies of detainees. Magistrates typically
ignored such expert
evidence and uncritically accepted the versions of police witnesses.
[175]
Improbable testimony of police witnesses was invariably
rubber-stamped by inquest magistrates. Police versions
that deceased
detainees were treated with care and consideration were readily
accepted by the courts notwithstanding evidence of
pre-death.
[176]
Mothle J, in the
Re-opened
inquest into the death of Ahmed Timol
,
held that:
[25]
‘
341.
It will be remiss of this Court not to address an issue on which
Bizos' evidence put a spotlight. This is the impropriety role
played
by some in the magistracy, prosecuting authorities and medical
experts in the past inquest proceedings. Bizos's evidence
reveals the
role of some of these public officials in being complicit in
exonerating members of the Security Branch from the crimes
they
committed. The 1972 inquest into the death of Timol is one such
example. From the outset, it had to take a Court order to
allow
Timol's family and their lawyers access to case documents before the
inquest commenced. The evidence of the 1972 inquest
furthers
demonstrate how the prosecution made no effort to obtain evidence
other than that of the police and the magistrate attempting
to
explain away the ante mortem injuries, without any shred of evidence
supporting his statement about a brawl
.’
The role of Magistrate
Blunden (Blunden/Magistrate)
[177]   The
first inquest finding of the Magistrate makes for pitiful reading. He
accepted the police version without
question. He did not even raise
the slightest concern or apprehension about its improbabilities.
[178]
Examples of Blunden’s disinterest in the truth was his
acceptance of the claims by Taylor and Du Toit that
Hoosen was
violent in nature in that he strenuously resisted arrest and had to
be forced into the vehicle on the morning of 2 August
1977; and that
he again resisted being placed back into the vehicle following the
so-called pointing out at North Pier on the beach
at 20h00.
[179]   The
evidence of Taylor and Du Toit is not believable. The evidence shows
that Hoosen had an unusually small physique
for a 26-year-old,
weighing only 49 kilograms (with a height of 1.75 metres). He had a
body mass index (BMI) of only 16, when it
should have been between
18.5 and 24.9. According to the evidence of Naidoo, the average
weight of a 14-year-old boy would have
been 49 kgs, rendering Hoosen
remarkably underweight.
[180]
In contrast Du Toit and Taylor would not have been out of place in
the front or second row of a rugby scrum.
[26]
Du Toit weighed 109 kilograms and his height was 1.98 metres, giving
him a BMI of approximately 27.8.
[27]
Taylor weighed in at 82 kilograms with a height of over 1.75 metres
giving him a BMI of 26.8.
[28]
Indeed, Du Toit admitted that he had been a rugby player and Taylor
conceded that he “played rugby at the time”.
[29]
[181]   There
were at least six police officers present at the arrest, and at least
four were supposedly present at the
alleged pointing out at the North
Pier. The claim that Hoosen, a tiny person, would have taken on
multiple police officers, especially
those the size of Du Toit and
Taylor on two occasions, stretches belief to breaking point.
[182]   Indeed,
the evidence of Gopal is that the so-called pointing out at North
Pier in the harbour never took place.
It was merely a story invented
to try and explain away the injuries all over Hoosen’s body. In
fact, the fabrication went
to the length of producing images of the
sites where these alleged scuffles took place and was produced as
evidence in the first
inquest.
[183]   The
fabrication however is easily understood. The Security Branch had to
come up with an explanation for the nearly
50 injuries inflicted on
Hoosen. Gopal’s evidence was that Du Toit and Taylor concocted
their stories, and they instructed
him to make sure his story aligned
with theirs. Gopal was told that if he were to testify, he would have
to say whatever he was
told to say. In so doing, the Security Branch
was accommodated by a pliant Magistrate who was willing to avert his
gaze from logic
and the facts.
[184]
Magistrate Blunden accepted the versions of Taylor, Du Toit, Naude
and Madlala that Hoosen was injury free and
made no complaint to
them, when in fact the injuries reflected in the post-mortem report
would have seriously incapacitated him
and caused him much pain,
which would have been evident to all, as per the evidence of Lorentz.
Even Gordon’s evidence, which
Blunden accepted, conceded that
the blunt force injury to Hoosen’s scalp and mesentery and the
bruises to his sternum, ribs
and loins were ‘significant’.
[185]
Blunden, in his rush to exonerate the police, saw no contradiction in
accepting these mutually destructive versions.
If Blunden had been
engaged in a serious search for the truth, he would have found the
evidence of Du Toit, Taylor, Naude and Madlala
to be highly
improbable, raising serious questions as to what they were hiding.
[186]
Instead, Blunden casually found that nobody had a motive to kill
Hoosen, completely ignoring the impact of the
50 odd injuries on him,
and the serious implications for the police in trying to explain how
these occurred, particularly since
it is likely that by the end of
Hoosen’s ordeal, he was most likely incapacitated, unconscious
or dead. Blunden studiously
avoided exploring the possibility that
Hoosen succumbed under torture.
[187]   Given
the medical evidence, Blunden was forced to accept that there “seems
little doubt that at least some
of the injuries found on the body…
were in all probability sustained by him whilst he was in the custody
of the Security
Police concerned, that is Captain du Toit and
Lieutenant Taylor….”. However, notwithstanding this
concession, Blunden
concludes that any suggestion that Du Toit and
Taylor were responsible for such injuries “
is completely
unsupported by
any evidence and is in fact mere speculation
”.
[188]   This
jaw-dropping conclusion was reached based on their denials “under
oath”, that they corroborated
each other, that any such
injuries occurred in the two subduing incidents; and that the two
were “
unshaken by cross – examination
which was
long and searching”.
[189]   Denials
by Security Branch officers under oath were good enough for Blunden.
It is quite apparent that Taylor
and Du Toit were unshaken in
cross-examination because the always knew they had nothing to fear
from the inquest proceedings. As
stated above, apartheid era inquests
involving the Security Branch were charades designed for the purpose
of covering up the truth.
[190]   Blunden
went so far as to claim that even if there was “
direct
eye-witness
evidence of a deliberate infliction of injuries
”
by the police, this would be “
entirely irrelevant to this
inquest
” since these acts are “
collateral or
completely
unconnected with the main issue”,
namely
the death.
[191]   Blunden
offered no explanation for this crass conclusion. He suggests that
the very context in which the death
occurred is irrelevant to an
investigation into how the death occurred. This is particularly
startling given how important the
context is to cases of alleged
suicide in police custody. Blunden’s willful avoidance of the
search for truth is abundantly
evident from his clumsy attempt to
compartmentalise the story and prevent the making of obvious
connections between the chain of
events.
[192]   There
was not the slightest attempt to explore the impact of the injuries
on the physical and mental well-being
of the deceased, and if it was
a suicide, whether it was an induced suicide – given the
brutality visited upon Hoosen. Not
a single question was raised about
what Security Branch officers were willing to do to protect
themselves from the inevitable scrutiny
that would follow.
[193]   Blunden
concludes his woeful finding by claiming that after “
careful
consideration
” the Inquests Act does not require him to
make a finding of suicide, even if the death was a suicide. In his
final cop-out,
he finds that Hoosen “
died
by hanging
”
which “
was not brought about by any act or omission
amounting to an offence on the part of any person”.
[194]   Aside
from the obvious misreading of the Inquests Act, it is mind-boggling
as to why Blunden could not bring himself
to put up a reason behind
the hanging when he already concluded that the hanging was
self-inflicted. This is especially so when
Blunden suggests earlier
in his judgment that Hoosen had “
a strong motive to do away
with himself
”. This apparent motive is because Hoosen was
supposedly exposed after the documents found in his flat were
presented to him
during interrogation. These documents, which have
since disappeared, allegedly included various unidentified
handwritten documents,
pamphlets and documents on explosives.
Conclusion on bias
[195]
Impartiality and bias are defined in
S
v Le Grange and Others
[30]
as follows:
‘
[21]
…Impartiality can be described – perhaps somewhat
inexactly – as a state of mind in which the adjudicator
is
disinterested in the outcome, and is open to persuasion by the
evidence and submissions. In contrast, bias denotes a state of
mind
that is in some way predisposed to a particular result, or that is
closed with regard to particular issues. Bias in the sense
of
judicial bias has been said to mean “a departure from the
standard of even-handed justice which the law requires from
those who
occupy judicial office’. (Footnotes omitted.)
[196]
In
S
v Dube and Others
[31]
it was held that:
‘
[7]
…What the law requires is not only that a judicial officer
must conduct the trial open-mindedly, impartially and fairly
but that
such conduct must be manifest to all those who are concerned in the
trial and its outcome, especially the accused.’
[197]   It
seems clear to me, that the first inquest into Hoosen’s death,
was riddled with examples of bias on the
part of the presiding
magistrate. Blunden misdirected himself in: accepting, without
question, the say-so of the police; paid no
heed to the cause, nature
and extent of the injuries of Hoosen; refused to apply his mind to
the evidence of Lorentz; and finding
that the injuries, even though
they occurred while in custody, were irrelevant and not connected to
Hoosen’s death.
[198]   It
appears to me that Blunden conducted himself in a manner that was
predisposed to a particular result, namely
the exoneration of the
police from all wrongdoing. He refused to apply his mind and went out
of his way to give the police version
a veneer of respectability. It
was manifest to any casual observer of the first inquest that the
Magistrate paid little or no regard
to the standard of even-handed
justice. His manifest bias was plain to see.
[199]
In
Re-opened
inquest into the death of Ahmed Essop Timol
,
[32]
the court aptly stated that an inquest is an inquisitorial process:
and quoted from decision of Timol v The Magistrate of Johannesburg
1972 (2) SA 28
(T) thus:
‘
14.
Nevertheless, the inquest must be so thorough that the public and
interested parties are satisfied that there has been a full
and fair
investigation into the circumstances of death’.
[200]   The
first inquest into the death of Hoosen did not come remotely close to
resembling a full and fair investigation.
It is my considered view
that Blunden conducted a substandard inquiry aimed at rubberstamping
the police version. He conducted
himself disgracefully. One also saw
no evidence of the prosecutor pursuing anything resembling a thorough
investigation.
[201]   It is
hardly surprising that the Haffejee family and the wider community
regarded the first inquest as little
more than an extension of the
police cover-up dressed up with judicial gloss. On this ground alone,
the finding of the first inquest
warrants overturning.
Evidence of abuse and
torture by the Security Branch
[202]   It is
apposite to outline the history and evidence of abuse and torture
meted out by the Security Branch to detainees.
Such history is
necessary to establish a modus operandi they employed during their
illegal operations.
[203]   The
evidence reflects that the conduct of Hoosen’s detention bears
absolutely no resemblance to the version
placed by the Security
Branch before the first inquest court. Bizos, in his affidavit before
the re-opened Aggett inquest, described
how apartheid-era detainees
routinely complained of torture and the police often being sued in
the civil courts for torture and
damages which were awarded against
them. These include the widow of Imam Abdullah Haroon who sued the
state for R22 000 in respect
of her husband’s death and
received an
ex-gratia
payment of R5 000. The mother and sons
of Steve Biko similarly sued the State and were paid an amount of
R65 000.
Security Branch
history of abuse
Perception of the
Security Branch
[204]
According to Gopal, Security Branch officers were considered the
“
bosses
above bosses
”.
They were not constrained by the ordinary 48-hour periods of
detention, and relied on the draconian powers of ss 6 and
10 of the
Terrorism Act (“the Terrorism Act”).
[33]
They could use all the time they needed to extract information from
anti-apartheid activists.
[205]   There
was a certain culture within the Security Branch that was oppressive
and instilled fear into the hearts
of its members, particularly
members of colour. There was a general culture of white superiority;
if a police officer of colour
did not toe the line, which included
covering up, the Security Branch would fabricate stories against
them; commanding officers
had full knowledge of the use of the “third
degree” [use of excessive force] and approved of it; and if
junior members
of the uniform branch were told by the Security Branch
to do anything, they would simply do it. For example, if they were
told
not to do any paperwork, there would not do it.
[206]   Meyer
conceded that the Security Branch enjoyed a superior status within
the police. The Security Branch was able
to order the uniform branch
to do tasks and the uniform branch was in a subservient position.
Meyer believe that the Security Branch
were a law unto themselves.
“
The Security Branch enjoyed amnesty to do anything. You
never heard of the Security Branch getting into trouble. They
assaulted,
detained and kidnapped people as they wanted
.”
[207]   Meyer
also conceded under cross-examination that uniform branch members
were afraid of the Security Branch because
they were so powerful and
had their ways of keeping everyone in line. Squealing on the Security
Branch meant serious repercussions
such as demotion and even physical
harm.
[208]   Naude
described the Security Branch as “
this secret guardian
division of the
force, supposedly looking after [the people of
South Africa’s] best interests”.
He claimed not to
have knowledge of what the Security Branch was doing during apartheid
but was aware that they detained people
regarded as a threat to
national security. He heard rumours that detainees were assaulted and
tortured but claimed, not convincingly,
that he did not know this for
sure.
The re-opened inquest
into the death of Ahmed Timol
[209]
The
re-opened inquest into the death of Ahmed Timol
[34]
confirmed the practice that torture would be deliberately inflicted
in such a manner that its effects would leave little or no
evidence:
‘
252.
The ill-treatment of detainees is often visualised or expressed in
the form of physical assault, i.e. beatings of detainees.
It is
indeed so the physical assault, apart from being a common method to
hurt and bring fear into a detainee, it is also easier
to prove by
reference to scars from injuries or evidence of medical treatment.
However, there are other less mentioned forms of
torture which leave
no evidence and are difficult to prove, such as sleep deprivation,
long hours of standing and interrogation
as well as electrocution.’
[210]   In the
case of Hoosen, the interrogation team observed no such niceties;
thus, leaving some 50 visible marks on
Hoosen’s body. This
forced them to fabricate a crude cover-up story, involving the two
scuffles.
[211]
The inquest court in
Timol
found that torture extended beyond physical violence to include a
broader “rubric of torture” that encompassed “all

forms of abuse visited on detainees”. It stated:
[35]
‘
253.
This Court is of the view that on the basis of the evidence received
it would be misleading to refer only to physical assaults
as the
ill-treatment of detainees. Detainees were subjected to beatings at
various levels of brutality, with the least being only
slapped once
across the face. It nevertheless remains an assault, but are not
comparable to those who were hit with solid objects,
punched and
kicked…. It will be more accurate to deal with the subject of
ill-treatment or abuse of detainees under the
rubric of torture, as
it includes all forms of abuse visited on the detainees.’
[212]
Mothle J found that detention under the Terrorism Act was, at times,
an effective death sentence:
[36]
‘
43.…the
evidence in these and other inquests demonstrate, this drastic
legislation became a tool in the hands of some members
of the
Security Branch,
not only to torture but
also to kill detainees with impunity
.’
(My emphasis.)
[213]
The court’s finding in
Timol
was epitomised by its rejection of the evidence of the Security
Branch officers in the following terms:
[37]
‘
261.
The evidence of
assault and other forms of torture of detainees presented in the 2017
re-opened inquest
is
so
overwhelming, that the denial and lack of knowledge thereof by the
three former Security Branch police officers who testified
is
disingenuous. Further, the fact that each one of them
testified
during the 2017 re-opened inquest that they knew nothing about
assault apart from what they read in the media, is a demonstration

that they were regurgitating a standard response, seemingly
prescribed to all members of the Security Branch. Else, Sons and
Rodrigues's
conduct calls for censure. Their conduct must be
investigated further with a view to raise appropriate charges
.’
[214]   These
findings are consistent with the conclusions of the TRC report which
found that torture and the killing
of detainees by the Security
Branch was a “strong possibility”. It concluded thus:
‘
The
Commission has taken into consideration the evidence of victims of
torture which could well have, especially those cases in
which
similar forms of torture did lead to death. A number of cases were
recorded of detainees having their heads bashed against
the wall and
of detainees who are suspended by their feet outside windows of
buildings of several storeys, raising the strong possibility
that at
least some of those detainees who allegedly committed suicide by
jumping out of the window were either accidentally dropped
down or
thrown’.
Apartheid state
sanctioned torture and killings
[215]
Apartheid state sanctioned extrajudicial killings and rampant
criminality by state security organs were the order
of the day during
the 1970s and 1980s. At the TRC, a former Commander of the Security
Branch, Johannes Velde van der Merwe confirmed
this:
‘
All
the powers were to avoid the ANC/SACP achieve their revolutionary
aims and often with the approval of the previous government
we had to
move outside the boundaries of our law. That inevitably led to the
fact that the capabilities of the SAP, especially
the security
forces, included illegal acts. People were involved in a life and
death struggle in an attempt to counter this onslaught
by the
SACP/ANC and they consequently had a virtually impossible task to
judge between legal and illegal actions.’
[38]
[216]   The TRC
found that during this period the State committed a host of gross
violations of human rights in South
Africa. These included, amongst
other violations, extrajudicial killings and torture.
[217]
The Police Act
[39]
mandated
the South African Police with inter alia the preservation of internal
safety. The Security Branch was charged with spearheading
this
function. The Security Branch was the effective intelligence wing of
the former SAP, falling directly under the Commissioner
of Police. It
operated in a separate and parallel structure of the Uniform and
Detective branches.
[218]   The
Security Branch targeted any person or organization which opposed the
government. Its activities included
the close monitoring of the
affairs and movements of such persons, the detention of thousands and
the torture of many.
History of
cover-ups
Evidence of Brigadier
Clifford Marion
[219]
Christopher Reginald Clifford Marion (“Marion”) is a
private investigator who investigated the Haffejee’s
case. He
is a retired SAPS Brigadier and a former Provincial Head of Detective
Services in KwaZulu-Natal, with 40 years policing
experience. He is
employed by the Foundation for Human Rights (“FHR”) to
investigate serious apartheid era crimes as
part of its Unfinished
Business of the Truth and Reconciliation Commission project.
[220]   Marion
was of the view that the probabilities pointed to the possibility
that Hoosen died under interrogation.
Alternatively, Hoosen was in
such a debilitated state that he was murdered to protect the Security
Branch from scrutiny. Marion
is of the opinion that the cover-up and
staging of suicide was done either to conceal the abuse and brutal
torture of Hoosen, or
to mask the fact that he died during
interrogation. The police version before the first inquest was
accordingly concocted to deflect
attention from what actually took
place at Brighton Beach Police Station between 2 and 3 August 1977.
More about his evidence later.
[221]
In the
Timol
inquest the court found that the Security Branch routinely invented
cover-up stories to “shield police from blame”
and
cover-up crimes committed by members of the Security Branch:
[40]
‘
314.
…In order to implement this cover-up strategy, the assistance
of some selected members of the prosecuting authority,
medical
profession and magistracy were roped in to be part of the sham.
Officials from these professions were carefully selected
to support a
cover-up version in the case of any judicial proceedings.’
[222]   The
first Hoosen inquest was no exception. The evidence before this court
clearly demonstrates that the apartheid
State concocted an elaborate
scheme to cover up the circumstances surrounding Hoosen’s
death, which will be dealt with in
detail below. Gopal testified that
he was asked to cover-up and stick to a specific story. It was also
his evidence that Du Toit
and Taylor lied under oath and that Hoosen
did not get injured while being placed into various vehicles.
Torture of other
detainees
[223]   In the
re-opened inquest, substantial evidence of torture at Fischer Street
and other venues in Durban was presented
by several former detainees
who were interrogated and tortured during the 1970s and 1980s. The
summary of similar fact evidence
follows here-under.
Kambadasen Subramony
“Coastal” Govender
[224]   Coastal
was a member of the NIC and a former police officer with the rank of
Major in Crime Intelligence. He was
arrested in the second week of
September 1977 under s 6 of the Terrorism Act. Coastal was taken to
the Security Branch headquarters
in Fischer Street for interrogation.
[225]
According to Coastal, the officers present included Taylor, Gopal, VR
Naidoo and Major Benjamin. Coastal says
he was hit a few times;
ordered to take his clothes off; kicked by four or five people at a
time; fell on the floor several times;
ballpens were put between his
fingers and squeezed his fingers on both hands; was made to sit with
hands outstretched on an imaginary
chair; and was kicked under his
arms.
[226]   If he
fell, he would be kicked until he got back on his feet. He also
recalled having his private parts squeezed.
Coastal recalled one
evening having some form of electrical device applied to his genitals
and being shocked. He said he was held
by his hair and his head
pushed into a toilet, at least twice, by Taylor. According to Gopal,
Taylor meted out the same treatment
to Hoosen.
[227]   While
he was assaulted, one of the Indian officers in the interrogation
said to him that the white officers will
kill him like they killed
Hoosen. Coastal could not recall whether this was Gopal, VR Naidoo or
Major Benjamin. Coastal testified
that the Indian officers did
assault him, but their assaults were milder than that of the white
officers.
[228]   During
the evening of the first day, Coastal was again stripped naked and
further assaulted. The assaults ended
sometime after 21h00. Coastal
was then taken to Mayville Police Station for detention. He testified
that he could not walk and
had to be carried out of the car.
[229]   The
next morning, he was taken back to Fischer Street where he was
stripped again and heavily assaulted. His abuse
included forced
squats. The same Security Branch officers were present. He said the
officers used slaps on his face, as opposed
to punches to avoid
visible injuries. His torture stopped at around 15h00 when a senior
officer, Coetzee, walked in.
Mohammed Timol
[230]   Mr
Mohammed Timol (“Timol”) is a former ANC struggle
activist and brother of the late Ahmed Timol
who was murdered by the
Security Branch while in detention at John Forster Square in 1971. He
was a former South African Diplomat
in London and Brussels. Timol was
arrested in Durban by six members of the Security Branch, on 25
October 1971, and taken to Fischer
Street Security Branch offices.
[231]   He was
interrogated at Fischer Street offices from 11h00 to about 23h00. He
was never left alone. The officers
made him to stand on a brick in
the office and was made to hold up two telephone directories for
hours. He was repeatedly beaten
up whenever he became unsteady or
lowered the directories. He received blows to his stomach, legs and
body. Thereafter, he was
taken to Berea Police Station where he was
held in a lock-up cell.
[232]   Timol
was taken back to Fischer Street the next morning for more
interrogation, and was further assaulted. He
was made to sit on an
imaginary chair, which the police called the “golden chair”.
He was beaten up whenever he relaxed.
He was then asked to do the
golden chair until he gave in and told the Security Branch about his
political activities in the United
Kingdom and his contact with Dr
Yusuf Dadoo.
[233]   They
continued to interrogate and tortured him until 23h00 that evening.
The interrogation continued from Monday,
25 October, to Wednesday
evening, 27 October, till about 18h00 each evening. He was not
punched or kicked in the face. He said
this was because the Security
Branch were trying to avoid any visible injuries.
Raymond Sorrel Suttner
[234]
Professor Raymond Sorrel Suttner (“Suttner”) is an
emeritus professor at the University of South Africa.
He was involved
in the liberation struggle in the 1970s and was a lecturer at the
University of Natal, Durban. In June 1975 he
was detained and
tortured by the Security Branch.
[235]   He was
arrested after spending hours distributing illegal pamphlets in
Durban and Pietermaritzburg and was taken
to Fischer Street. He
experienced two events of interrogation and torture by the Security
Branch.
[236]   The
first interrogation happened with the police officers questioning him
in teams of  two or three at a
time. The assaults started after
he said he would not answer further questions. Colonel SC Steenkamp,
the head of the Security
Branch in Durban, came in the interrogation
room and shouted, “this is serious, man”, and he twisted
Suttner’s
nose and then left. Suttner believes that the
twisting of his nose was a signal to “change approach”.
[237]   Shortly
after Steenkamp left, Andy Taylor (not to be confused with Jimmy
Taylor mentioned earlier above) entered
the room. Suttner described
Andy Taylor as a very tall man who was wearing a white butcher’s
apron and carrying handcuffs.
Andy Taylor took off Suttner’s
glasses and put on the handcuffs and said that “this was
serious”.
[238]   Suttner
was ordered to strip off all his clothes and instructed to lie down.
They held him at various points on
his body, by the legs and
shoulders. A cloth was put around his mouth. Electric wires were
attached to his penis. Captain Dreyer
pulled out some of Suttner’s
pubic hairs, and hair from his head, beard and legs.
[239]   The
Security Branch officers began administering electric shocks. They
blocked his shouting with a gag and made
obscene remarks such as “I
want to see him come now”. According to Suttner, the officers
were aware of the danger of
electric shocks, because he heard them
say “this is bad for your heart, you know”. He was also
subjected to anti-Semitic
slurs.
[240]   The
torture continued until 07h00 or 08h00 the next morning. At around
20h00 Suttner was taken to Durban North
Police Station. On his return
to Fischer Street the next morning he was taken to a room on the
fourth floor with two large floodlights
on a table and handcuffs on
the floor. He was asked questions and made to face the lights while
sitting against the wall. He was
forced to sit on the invisible
chair. His arms were stretched and he had to balance what they called
“his Bibles” (books
on Marx and Lenin) on each arm.
Drawing pins were placed on the floor to prevent him from falling.
When he dropped the books or
fell on the floor, the books would be
picked up and additional volumes were forced on him.
[241]   Suttner
experienced further modes of torture, which included stamping on his
toes; kicking his shins; threats
that he would be “fucked up”
properly, that they would put the “kaffirs” onto him;
that he was a “fucking
Jew”; a threat to place a rat
under a pot on his stomach; and other degrading treatment.
Yunis Shaik( Shaik)
[242]   Shaik
is a non-practicing attorney and an executive director of Hoskin
Consolidated Investments Ltd. Between the
late 1970s and early 1990s
Shaik was active in the ANC underground and held leadership positions
in the trade union movement. He
was detained by the Security Branch
for various periods during 1980 and between 1985 and 1986.
[243]   In his
evidence, Sheik distinguished between two forms of detention:
interrogatory and preventative. Interrogatory
detention was used
primarily to extract information from a detainee, while preventative
detention was to stop an activist from
mobilising people and engaging
in activities detrimental to the apartheid State. It was aimed at
extricating an activist from society.
[244]   While
Shaik experienced both forms of detention, his evidence focused on
interrogatory detention. Shaik highlighted
the following significant
features of security detention:
(a)
Security detention allowed for a detainee to be held in solitary
confinement without any
access to an attorney, family, friends, or
anyone else – other than State officials such as police
officers, a magistrate,
or the district surgeon.
(b)
The period of detention was unlimited, and release was at the
discretion of the investigating
officer. The jurisdiction of the
courts was excluded.
(c)
A detainee was generally treated as an enemy of the State and
suffered intense animosity
and antipathy by the police, as well as
from magistrates and district surgeons. If you were a member of the
ANC or SACP, you were
subjected to intense hatred and vilification.
(d)
Information was often extracted from a detainee by means of torture
and wanton acts of cruelty
that resulted in a detainee suffering
trauma, severe physical injuries, and sometimes death.
(e)
Typically, the Security Branch claimed that the cause of the trauma,
physical injuries or
death were self-inflicted. This necessitated
collusion between members of the Security Branch and at times, other
members of the
erstwhile SAP.
[245]   Shaik
was detained at Brighton Beach Police Station for 14 days in 1980 and
interrogated at Fischer Street, before
being held for six months’
preventative detention at Modderfontein Prison. He was not seriously
mistreated during these periods
in detention. He recalled the hourly
inspections at the police cells at Brighton Beach Police Station.
[246]
Shaik was detained at CR Swart Square Police Station on two separate
occasions, under s 29 of the Internal Security
Act.
[41]
The first was from 3 to 19 July 1985 (“the first period”)
and the second was from 3 August 1985 to the following year
(“the
second period”).
[247]   He was
ordered to strip naked. A wet hessian hood was placed over his head
and the interrogation began. He was
ordered to strip naked in order
to prevent any evidence of blood or other fluids staining his
clothing.
[248]   The
assault began with punches, knees and elbows to various parts of his
body, his head, back, gut and solar plex.
He could not see who was
assaulting him because he was hooded. A Sergeant Visagie (“Visagie”)
pinned him down to the
table and gripped his head and hands. His
hands were bound by a rope and a bicycle tube like substance.
[249]   After a
while and after no information was given, there was a dramatic change
in the method of torture. He had
to get dressed and was led to
another room where he again had to strip naked. He was hauled onto a
table and forced to kneel, with
his head and hands held against a
tabletop. His hands were bound by rubber tubing and his head was
still covered by a damp hessian
hood. The soles of his feet and back
were repeatedly struck with fists and what felt like a wooden club.
While all this was happening,
he was still being questioned.
[250]   While
in this position, an instrument was inserted into his anus and pushed
into its far recesses whilst at the
same time, he was struck on his
lower back. These brutal assaults caused him to suffer excruciating
pain. The more he was assaulted,
the more he struggled to pull free
from having his hands and head pressed against the table. The more he
tried to pull free, the
harder Visagie tightened his grip on him.
[251]   The wet
hessian bag held tightly on his head and face was causing him to
suffocate. He testified that if that
torture had gone on for a while
longer, he believed that he would have died by asphyxiation. Shaik
described the experience of
being hooded as a “dice with death”
because of the inability to breathe while being hooded and tortured.
[252]   After a
while, the assaults became random. During the torture, he lost
consciousness several times and was revived.
At times, he was dragged
to the toilet and had water thrown on him. As he had soiled himself
due to the ferocity of the torture,
he was required to clean up. He
suffered internal bleeding, bleeding through his rectum and lost
hearing in one of his ears.
[253]   Shaik
made the following observations from his experiences in detention:
(a)
Typically, the station commander or duty officer would conduct
inspections of the cells
every hour. A police officer would be
stationed in the courtyard of the cell block and detainees would be
under regular and frequent
surveillance.
(b)
Notice would be taken if a detainee was in obvious distress. It was
the responsibility of
the station commander to attend to the needs of
a detainee when held in his station. An appropriate entry was
required to be made
in the occurrence book. At the very least, a
detainee would be observed at mealtimes, changing shifts and
scheduled cell inspections
and patrols.
(c)
A death in detention would result in the Security Branch
orchestrating a cover-up
of what happened. Police officers would
typically deny that detainees were assaulted or badly treated and
claim that injuries were
self-inflicted. A culture of brotherhood
existed amongst these Security Branch officers which involved total
secrecy and never
implicating each other.
(d)
District surgeons and magistrates would pay little attention to you
and would ask you questions
as formalities. There was no point in
letting them know that you were assaulted, because the reports of the
magistrate and district
surgeon went straight to the officers who
were abusing you. The reports would not go to an independent party.
(e)
Security Branch officers acted with total impunity. Since detainees
were held
incommunicado,
with no access to lawyers or doctors,
they had a licence to act as they wished with no fear of being held
accountable.
(f)
The uniform branch was subservient to the Security Branch. The
Security Branch effectively
had control over police stations where
they operated and had total control over detainees held in police
stations. If a Security
Branch officer asked uniform branch members
to do anything, they would do so without question.
(g)
Among those in the underground, it was not expected of a detainee to
resist answering questions
or to hold out indefinitely. Shaik noted
that one should hold out for about three days. The option of suicide
or self-harm was
never demanded or encouraged.
Gangat
[
254]
The evidence in relation to the abduction and torture of Gangat has
been summarised above. Gangat died in 2017.
The court relied on the
evidence adduced by his wife, Sacoor. This hearsay evidence was not
challenged in terms of s 3(1)(a) of
the Law of Evidence Amendment
Act,
[42]
and accordingly may
be admitted in terms of s 3(1)(c) of that Act.
Direct evidence of
abuse of Hoosen
[255]   The
only direct evidence of Hoosen’s abuse before this inquest
comes from Gopal. He disclosed that the Security
Branch conducted
interrogations at Fischer Street, but also at private buildings
around Durban that they used as safe houses. This
was particularly so
when they needed to extract information quickly.
[256]
According to Gopal the typical forms of assault and torture used by
the Security Branch included:
(a)
psychological abuse;
(b)
sleep deprivation;
(c)
continuous interrogation over several days;
(d)
physical assault, involving: minor assault by slapping, and major
assault such as “panel
beating” and kicking;
(e)
the helicopter method: the victim of torture is made to stand with
his arms out, balanced
on his toes, with a ruler on his head and
crouched down. If the ruler falls, the detainee would be brutally
kicked;
(f)
electrocution: wires were connected to a dynamo, clamped to the
victim’s body
part such as the nipple, genital, anus, kidney
area, ear or nostril; and
(g)
wooden rulers were used to assault victims on their testicles.
[257]   Gopal
witnessed the following methods of torture being applied against
Hoosen:
(a)
Stripped naked and left in his underpants, but later instructed to
remove his underpants.
The purpose of stripping was to not leave
behind any stains on clothing and to humiliate him.
(b)
Slapped on the face with open palm slaps.
(c)
Kicked on the kidneys, along his back and front, thighs and legs.
(d)
Hit and punched on the legs, ankles, private parts, buttocks, back of
body, neck, arms and
armpits.
(e)
Dragged by the back of the neck to the toilet, with head pressed into
the toilet bowl and
made to drink toilet water.
(f)
Head smacked into a pillar.
[258]   Gopal
described the torture of Hoosen as “
a grotesque feature of a
horrible
nightmare that just unfolded before my very eyes
”.
In his evidence, he recalled that Hoosen could not bend because his
entire body was sore and he had to help him put his
underpants on;
was very bruised all over the body but not bleeding and could see
marks all over his body as he was quite a fair
person.
[259]   Gopal’s
description of the torture is largely consistent with the findings of
the expert medical witnesses.
Medical evidence of
abuse
[260]   The
post-mortem findings of injuries and assessments done by Gordon; and
Lorentz
et al
were catalogued and evaluated herein earlier and
will not be repeated. Further related and allied evidence is
considered below.
Amnesty International
Danish Medical Team
[261]   On 14
October 1977, a confidential request was made by Mr Malcolm Smart of
the International Secretariat of Amnesty
International’s Africa
Department to Professor Albrectsen and members of the Amnesty
International Danish medical team (“the
Danish medical team”)
to assess the images and report of Biggs and to provide an expert
opinion of the nature and causes
of the marks on Hoosen’s body.
[262]   On 19
October 1977, the Danish medical team replied with the following
findings:
(a)
Scattered on the trunk and the extremities are sequelae of blunt
injuries of varying degrees.
(b)
Scattered on the back are well- defined irregular dark-coloured marks
which may be due to
blows or prolonged pressure.
(c)
Similar skin injuries are located around the knees and elbows and in
less degree around
the ankle joints. They are due to some form of
blunt violence.
(d)
Their nature and location might suggest that the victim had been
restrained for some time.
[263]   On 24
February 1978, the Danish medical team released a further report
after assessing the report of Gordon and
the supplementary report by
Biggs. In this report, the team found that the bleedings in the scalp
and the lesions on the body and
the extremities were caused by heavy
blunt violence while Hoosen was alive. The bleeding around the
mesenteries mentioned in the
autopsy indicated blunt violence
directed towards the lower abdomen.
[264]
On 16 March 1978, following the judgment of Magistrate Blunden,
Amnesty International released a statement critical
of the judgment.
The press statement challenged the finding that there was
insufficient evidence to attribute Hoosen’s death
to any
individual since the injuries were sustained in the four to 12 hours
before death, while in the custody of the police.
[43]
Biggs
[265]   Biggs
testified on behalf of the Haffejee family at the first inquest. As
adumbrated earlier, he had, at the request
of the Haffejee family,
assessed Hoosen’s body before he was buried.
[266]   Biggs
was examined in certain aspects of his report and on how his report
found its way to the press. The salient
points of his report, in
relation to evidence of abuse includes:
(a)
There were notable lesions circular in shape and some six mm in
diameter on both sides of
the ankles and on the right knee.
(b)
The floor of the lesion was depressed below the level of the skin.
(c)
On the left posterior aspect of the chest there was a hand sized
discolouration, which
may have indicated bruising.
(d)
The face and neck were noted to be darker in colour than the rest of
the body and there
were subconjunctival haemorrhages in both eyes.
[267]
Biggs produced a further report to explain the unusual and similar
marks observed on the body.
[44]
Biggs took photos of the body.
[45]
He said he had not “
seen
such marks produced in any way
”.
He noted that, as an orthopaedic surgeon, he had never seen such
marks on a person injured in a collision.
[268]   Biggs’
evidence was not considered by Magistrate Blunden since the counsel
for the family stated that they
would not be relying on it.
Naidoo
[269]   As
already stated earlier, Naidoo is an independent specialist forensic
pathologist. He was instructed by the
National Prosecution Authority
to study the medical evidence of the first inquest and provide an
independent forensic medical opinion
on the manner, circumstances and
cause of Hoosen’s death. He compiled a report, dated 23
February 2021, and testified at
the re-opened inquest.
[270]
According to Naidoo, the injuries inflicted on Hoosen’s scalp,
chest and mesentery were caused by significant
forces. He said these
injuries would have been physically incapacitating, causing Hoosen to
be in noticeable pain and in marked
distress until his demise.
[271]   If
these injuries were inflicted in stages, then Hoosen’s
condition would have progressively worsened. Naidoo’s

description of the most serious injuries is set out below.
Head
[272]   The
extravasation of blood (or bleeding from ruptured blood vessels) on
the scalp can be described as deep scalp
bruising. Such extensive
bruising points to several physical impacts that rendered the
bruising as a confluent (i.e., merged, or
blended into one) set of
haemorrhages. This meant that multiple blows were inflicted on
Hoosen’s head. Naidoo could not exclude
brain damage from the
state of concussion.
[273]   Such
injuries would have induced unconsciousness, or a lower state of
consciousness, or drowsiness as seen with
a concussion. This would
have disabled Hoosen, rendering him unable to walk or talk. Such
injuries would not have been caused by
the alleged scuffles, (which
we now know were fabrications designed to mask the torture).
Chest
[274]   The
thoracic contusion, or bruising, is indicative of a heavy blow to the
left lower front of the chest and would
have been intensely painful.
These blows would have resulted in cardiac concussion.
[275]   Such
blows would have left Hoosen winded, breathless and doubled-up in
pain, not just “winded “. He
would have been unable to
sit or stand up or walk upright. It might have restricted abdominal
movements and respiration due to
mesenteric irritation.
[276]   Naidoo
further noted that if there was no observable bleeding, death may
have supervened very shortly after the
abdominal impact, and it
cannot be excluded that the death may have been caused by the
abdominal impact themselves.
General impact of
the injuries
[277]
According to Naidoo, in light of Hoosen’s injuries, it was not
possible that the deceased was awake and
normal when he was last
visited in his cell at 03h00, as claimed in the first inquest. An
objective observer would have found a
seriously injured person in
noteworthy pain and distress if he was alive, if he was not
unconscious or dead.
[278]   Since
these injuries were likely sustained under interrogation, Hoosen
would not have been able to retain an upright
or even a seated
position. Since the injuries were between four and 12 hours old, the
police officers at the charge office would
have been able to discern
that Hoosen was in considerable pain and distress, even if his
injuries were not immediately visible.
Visibility of the
injuries
[279]   Naidoo
believed that the bodily injuries would have been clearly noticeable
when they were exposed to view. Although
the visible injuries do not
necessarily indicate the full extent of physical harm perpetrated on
Hoosen.
[280]   Naidoo
counted between 60 to 75 individual discrete lesions, or body wounds.
He said there could have been about
120 strikes, although 60 of them
fell below the wounding threshold. Many of these wounds/lesions are
in clusters and groups which
may have occurred in single impacts, or
with repeated impacts to the same body part. Strikes, such as
open-handed slaps to the
face, would not pass the wounding threshold
and would not produce a visible injury.
[281]
According to Naidoo, the injuries around the elbows and knees
appeared to suggest a distinct “pattern or
set of patterns”
that are difficult to reconcile with usual causes of injury. They
indicate a specific directed application
of force, strongly
suggesting restraint or constraint by an object or surface with a
patterned configuration.
[282]   Naidoo
stated that the possible use of electrodes cannot be excluded or
easily dismissed. The injuries of the
lower back do not reconcile
with incidental injuries of falls, sliding on the ground or being
forced into a vehicle. The linear
marks at the back of Hoosen’s
knees indicate the possibility of him having been suspended from a
piece of wood under his
knees.
[283]   Naidoo
was of the view that the general wound age was at widest range
between six and 24 hours, but that there
was concurrence of a period
of between eight and 12 hours – which was the most likely. This
placed the age of the injuries
squarely within the period Hoosen was
being interrogated.
[284]   Naidoo
was critical of Gordon’s view on the injuries. Gordon viewed
the injuries as superficial and refused
to comment on how the
injuries were caused and the type of force used. Naidoo found that
such an approach was unhelpful to the
court and unbecoming of a
senior state pathologist.
[285]
Following the provision by Gopal of his affidavit, Naidoo was asked
by Advocate Shubnum Singh (“Singh”)
of the NPA to prepare
a supplementary report, that considered Gopal’s version of the
abuse of Hoosen. That report is dated
24 February 2021 and was
entered as exhibit “L5”.
[286]
Pursuant to that report Naidoo made the following remarks:
(a)
The nature of the assaults as described by Gopal are very much
aligned with the injuries
noted in the post-mortem examination.
(b)
The nature of the assaults is also in keeping with his observations
of multiple impacts
in multiple positions and in keeping with the
estimated age of the injuries of between eight and 12 hours before
death.
(c)
The deep scalp bruising could have occurred with any type of blows,
including Hoosen
striking his head against the wall when he was
plunged into the toilet.
(d)
The number of injuries in clusters around the elbows and knee suggest
the possibility of
shackling, as mentioned by Gopal in his affidavit
when describing the practices of the Security Branch.
(e)
The injuries behind Hoosen’s knees raises the possibility that
he was subjected to
the helicopter method, while Gopal was not in the
room.
(f)
There were no genital injuries observed by Gordon in his post-mortem
report, but unless
one specifically dissects and looks for bruises,
they may easily be missed.
(g)
The abdominal blunt blow, as well as the chest bruising, could be in
keeping with the possibility
that a mule kick was administered to
Hoosen.
(h)
Gopal’s description of Hoosen being in pain, exhausted and
unable to stand and speak
properly is in keeping with his (Naidoo’s)
assessment of what Hoosen’s state would have been.
Dr S Holland (Holland)
[287]   Holland
is the Principal Specialist in Forensic Pathology at the Diepkloof
Medico-Legal Laboratory. She prepared
a specialist report on Hoosen’s
death, dated 27 February 2020, which is exhibit “G28”.
[288]
According to Holland, the injuries on Hoosen’s body were not
related to the cause of his death. Holland
noticed a large scalp
haematoma over the top of Hoosen’s scalp. She believed that it
was caused by a blunt force impact to
the head that may have occurred
just prior to death. Hence, the possibility that Hoosen was
incapacitated prior to death must be
taken into consideration in
determining the circumstances of his death.
[289]   Holland
questioned the explanations given by the various police members in
their testimonies at the first inquest,
citing “scuffles”
as the reason for Hoosen’s injuries. Holland stated that such
injuries were inconsistent with
the findings of  Magistrate
Blunden. Instead, she stated that the unexplained injuries of the
limbs should raise the suspicion
of a homicidal death.
[290]   Holland
agreed with Naidoo that it was a possibility, based on the
post-mortem report, that Hoosen suffered thoracic
contusion following
a heavy blow to the left lower chest which could lead to cardiac
concussion. She also agreed with Naidoo that
it is a blunt force
injury that caused the injuries on the intestines. And she also
agreed that the extravasation was limited.
[291]   Holland
however did not see evidence of electrocution, nor evidence of
hypoxia, or of brain injury in the report.
She did concede that it
was a possibility but could only rely on the post-mortem report.
[292]   From
the foregoing I am implored to find that Hoosen was indeed tortured
during his period of detention. The submission
is meritorious since
there is an eyewitness’s (Gopal) factual account and forensic
evidence to support the same.
Mechanics and
instrument of death
[293]   Hoosen
was found “hanging” in his cell with a trouser around his
neck. The trouser was tied to the
lowest rung of the cell grille. The
crotch of the trouser was around his neck and the trouser was twisted
to create the compressive
force. The ends were tied around the grille
in a knot. A handkerchief was then tied over the knot.
Evidence of Thivash
[294]   Thivash
is a Mechanical and Aeronautical Engineer with the firm TMI
Dynamatics. In 2018, he was requested by Singh
to conduct simulations
and report on the death of Hoosen. His first report, dated 6 April
2018, is before this court as exhibit
“G25”. The
photographs taken during the simulation are contained in exhibit “G
25.1”, while his final report
dated 6 August 2019 is exhibit
“G25.2”; and the video of his simulation is exhibit
“G25.3”. The final report
includes the report of the
simulation conducted in relation to death by suffocation. Thivash
concluded that it was possible but
unlikely that Hoosen died from
self-strangulation.
[295]   Thivash
first considered the Magistrate’s finding that Hoosen “died
by hanging”. He observed
from the photos that Hoosen’s
legs, pelvis and abdomen were on the floor. The noose was fixed
around the lower section of
the neck. The height of the knot on the
first horizontal bar of the jail door was 493 mm above the ground.
Only the head, thorax,
neck, and upper arms were suspended off the
ground.
[296]   He
noted documented findings that a person would need approximately 15
kilograms of compression of force around
the neck to block their
arteries and cause death. Hoosen had a tall frame at 1.75 metres but
weighed only 49 kilograms. He concluded
that the tensile force in the
trouser is equivalent to a suspension mass of 11.72 kilograms which
is approximately 24 per cent
of Hoosen’s total weight. He was
of the opinion that the suspended mass was too low for Hoosen to have
died from hanging
or sudden arterial occlusion.
[297]   Thivash
and his team conducted simulations dealing with four scenarios. He
concluded that two of the scenarios
were within the realm of
possibility.
[298]   In
scenario one:
(a)
Hoosen tied the ends of the trousers to the lower vertical bar of the
jail door (grille)
and then tied the handkerchief around the knot and
placed the crotch of the trousers around his neck.
(b)
He then turned himself until the pants were twisted so tight around
his neck that he suffocated
and died. A fourth or fifth turn would
have likely resulted in suffocation.
(c)
The re-enactment demonstrated that it would have been considerably
easier for Hoosen
to twist the trousers around his neck by rotating
his head whilst kneeling in front of the jail door.
(d)
However, it is likely he would have been suffocated and died in a
kneeling position. To
have been found in a lying position, he would
have to stretch out and lie down while in the process of suffocation.
[299]   In the
second scenario, which was scenario four in the simulation:
(a)
third parties placed the crotch of the trousers around the neck of a
live or an already
deceased Hoosen;
(b)
then twisted the trousers;
(c)
then pulled Hoosen to the door and tied the trousers to the lowest
horizontal bar
of the jail door;
(d)
tied the handkerchief to the knot of the trousers to ensure the
trousers cannot be untwisted;
and
(e)
then closed the door and exited.
[300]   Thivash
noted that it was the first time he had seen a handkerchief being
used to secure a knot. He stated that
the handkerchief was used to
make sure that the knot of the pants would not slip open. It was also
to maintain the compression
force when the pants twisted. If the knot
of the pants loosened compressive force in the pants would have been
lost.
[301]
Regarding the staged suicide scenario, Thivash said that third
parties could have tightened the ligature without
necessarily having
to roll the body over because they would twist it in their hands
while the body was in a complete stationary
position. Thivash was of
the view that it was likely that a third person was involved because
“
it could be very easy to use the lowest bar, strangulate
the person, tie them to the lowest bar and then close the door behind
them
”.
[302]   Thivash
noted that the position in which Hoosen’s body was found would
have made suffocation difficult to
achieve, so it was suggested that
third parties may have been involved in his death. If there was no
involvement of a third party,
it would have involved great effort to
have suffocated himself in that position, and he would have chosen
the most difficult position
to suffocate himself.
[303]   If
suffocation as opposed to hanging was the preferred option of
suicide, Thivash maintained that it would have
been immeasurably
easier to kneel or stand up since “
you would require a lot
less
rotation of the body on the ground, like twisting on the
floor and you could literally stand up straight and just turn around
in
a direction to keep twisting that knot
”.
[304]   In his
report, during the inspection in loco as well as his testimony,
Thivash said the entire situation intrigued
him, since the cell door
was approximately two meters high, it would have been immeasurably
easier to commit suicide by simply
hanging oneself from the highest
bar. This would have allowed his entire body to be suspended. This is
especially so in light of
the version advanced by all the police
officers, that Hoosen was able to walk with ease from the charge
office to the cell.
[305]
According to Thivash, even hanging himself from the second or third
horizontal bar of the grille gate would have
been an easier method of
suicide because more body weight would have been suspended than just
his head and shoulders. Aside from
higher vantage points on the gate
grille, Thivash noted that he had the option of attaching the
ligature to the higher parts of
the cell door or on either of two
windows that were available. In this regard, see photos numbered 22,
23, 27 and 28 of the inspection
in loco report. Thivash founded it to
be “weird” that a person would choose the convoluted
manoeuvre involved in strangling
oneself from the lower bar of the
door.
[306]   Thivash
agreed that if the death was the result of homicidal strangulation,
then rigging the deceased to the lowest
rung off the ground was the
“simplest and easiest” method. That is so since if higher
rungs were used the deceased
would have to be lifted, requiring two
or more persons to hold him and another to tie the knot. Also, it
would have been simple
enough for the perpetrators to step out of the
cell and then just pull the door behind them.
[307]   Gopal
conceded in cross-examination that Hoosen was too weak to have
crouched or rolled around to strangle himself.
He added that if
Hoosen was able to stand and walk, and if he intended to commit
suicide, he would most likely have done so from
the highest rung of
the cell bar, or from the grille on one of the cell windows. If the
suicide was staged, Gopal agreed that it
would have been easiest to
attach Hoosen to the lowest rung on the cell door, because it meant
no lifting and holding him while
carrying out the manoeuvre.
Medical evidence
supporting staged suicide version
[308]   In
support of Thivash’s view that third parties were most likely
involved in causing the death through a
staged suicide was the expert
opinions of the two forensic pathologists who testified in the
inquest. They raised the distinct
possibility that Hoosen was
incapacitated prior to death. The two pathologists are Holland and
Naidoo who noted serious injuries
caused by a blunt force impact to
the head which either led to unconsciousness or a lowered state of
consciousness or a drowsiness
as seen with concussion. Naidoo also
noted that thoracic contusion is indicative of blows to the left
lower front of the chest
which would also cause the person to be
winded, breathless and in pain. Such a blow could also cause cardiac
concussion. Also,
to be factored in are abdominal injuries arising
from the mesenteric extravasation of blood which would have seriously
incapacitated
Hoosen. As indicated earlier, Naidoo was of the view
that such a massive abdominal blow would have been potentially
life-threatening
if the spleen or liver had been damaged, and death
may have supervened shortly thereafter.
[309]
So, the medical evidence suggests that Hoosen was most likely
incapacitated prior to death and would have been
in no position to
carry out the strenuous exercise of strangling himself as alleged by
the police. Naidoo even questioned the need
for an additional knot
with a handkerchief over the trouser, which he viewed as somewhat
redundant and superfluous, especially
since the legs of the trousers
were of “ample length” to tie a knot. He commented that
the knot appeared to have been
extremely tight, as observed by Gordon
who was at the death scene. In this regard he referred to the report
by Robert Chisnall’s
MEd titled “
Distinguishing
between homicide and suicide notes and ligatures: A comparative
analysis of case and survey data”.
Naidoo
considered the findings of Chisnall in a short commentary which was
made available to the court and the parties.
[46]
[310]   While
noting that he was not a knot expert, Naidoo drew attention to the
finding that strangulation was “more
likely” in external
tying cases and “not likely” in self-tying. He noted that
the Chisnall’s article did
not consider ligature twists and
number of twists, but did investigate ligature tension and found:
(a)    ‘In
all homicides involving strangulation with knotted ligatures, the
neck ligatures were tight or extremely
tight – smaller than the
relaxed circumference of the neck…’
(b)
‘Suicides were more frequently characterized by loose neck
ligatures and the presence of an inverted
“V” mark in the
soft neck tissue…’
(c)
‘The incidence of tight, self-tied neck ligatures was lower
than loose ligatures’.
[311]   Naidoo
noted that there was no presence of an inverted “V”- mark
which is the typical hallmark of
a suicide.
Forensic cause of
death
Gordon
[312]
According to Gordon’s post-mortem report, the official cause of
death was “consistent with hanging”.
Biggs
[313]
According to Bigg’s report, it seemed likely that Hoosen’s
death was caused by a tight constriction
of the neck. It further
appeared to be death by suffocation rather than by sudden arterial
occlusion. He explained that this was
because the knot was so tight
that it had to be cut open.
Naidoo
[314]   Naidoo
concluded that the cause of death may have been the consequence of
pressure upon the neck, arising from
the consequence of neck
constriction by ligature or ligature strangulation. He excluded
actual hanging by suspension.
[315]   Naidoo
found that the possibility of “terminal reflex neurogenic
cardiac arrest” cannot be excluded.
He noted that it was also a
possibility that such cardiac arrest could have occurred under
torture.
[316]
According to Naidoo, if Hoosen had died following cardiac arrest,
this would not have been picked up at the post-mortem
as there would
be no signs that this was the mechanism. While Naidoo accepted that
neck constriction could have been self-applied,
he found it odd that
the deceased attached himself to the lowest rung and not one of the
upper rungs of the cell door grille, which
would have made
self-constriction easier.
[317]   He
testified that he had seen several examples of suicide by
self-constriction from a standing position and that
this case was the
first time he had seen an alleged suicide employing this method so
close to the floor. He found the ligature
contraption on Hoosen to be
extremely unusual.
[318]   He
could not determine whether this was a self-inflicted neck
constriction or whether it was caused by another
party. The available
objective evidence does not exclude other persons applying the
constriction. Naidoo however excluded throttling,
which he defined as
the manual strangulation by hands or fingers, as opposed to the use
of a ligature.
[319]   In
relation to the short linear abrasion on Hoosen’s neck,
contrary to Gordon’s repeated claims that
such injuries are
usually due to the deceased’s own fingers and fingernails
attempting to adjust the ligature in suicide,
it appears unlikely
that a person intent on committing suicide would have a reason to
adjust the ligature in the process of suicide.
Such adjustments to
loosen the constricting ligature likely happen in instances of
homicidal strangulation.
[320]   Naidoo
concluded that it “cannot be resolutely determined that the
ligature constriction of the neck was
caused either before or after
death or before or after a state of unconsciousness has occurred”.
Naidoo disputed Gordon’s
assertion that the possibility of
post-mortem hanging (or more accurately constriction) is “completely
excluded”. Naidoo
noted that except for two areas of bruising
on the neck (at the inner aspect of the right side of the mandible
and the anterior
edge of the sternomastoid muscle), no other deep
vital reaction was observed. Accordingly, both haemorrhages could
have been post-mortem,
as much as they could have been perimortem or
antemortem.
[321]   Naidoo
testified that there was no way a pathologist could say:
‘
that
the ligature was not placed after death or constricted, or if the
person died before or whether he was still alive, and the
ligature
was placed, or he placed it himself”.
The
two bruises, referred to above, he said “are more likely
related to the ligature itself, they are superficial” and
such
bruising “can be seen in some cases where a person is strung up
very shortly after death.’
Holland
[322]   Holland
concluded that the cause of death, based on the findings documented
in the post-mortem report ought to
have been “consistent with
pressure to the neck”. She highlighted that the post-mortem
report indicated that examination
of the internal neck structures
showed “bruising of the subcutaneous tissues below the inner
aspect of the right side of
the mandible”. She stated that an
assessment of the presence and shape of the ligature mark is the most
crucial factor in
determining a case of “hanging “versus
a case of “strangulation”.
[323]   She
concluded that:
(a)
The presence of marks in the internal neck structures of Hoosen were
not consistent with
hanging.
(b)
Since a pair of trousers were allegedly used as a ligature, such
material is a “soft
broad type of ligature”, which would
not be expected to cause injuries to the neck.
(c)
The presence of submandibular (which is the side of the jaw, under
the ear) “bruise”
is not consistent with hanging, but
usually indicates blunt force applied directly to that area and is
more consistent with the
manual application of pressure to the neck,
i.e. manual strangulation.
[324]   Holland
noted that the post-mortem report described at least 46 “abraded
bruises” on the back, groin,
both arms and both legs.
Histological analysis on some of these wounds was done (from the
back, right groin, right knee and base
of the neck), which suggested
that the wounds were between four and 12 hours old. She stressed that
these wounds displayed a “vital
reaction”, confirming
that they were sustained during life.
[325]   As
explained earlier, she disputed the Magistrate’s finding that
the injuries were not related to cause
of death, and that they did
not need to be explained. In her view explaining these injuries was
“crucial in excluding or
confirming a homicidal manner of
death”.
[326]   Holland
noted that since Hoosen only weighed 49 kilograms it would not have
taken much for multiple Security Branch
officers to subdue him. She
noted further that untangling of hair in the knot of the ligature, as
was the case here, is generally
associated with homicidal hanging.
Time of death
Gordon
[327]
According to Gordon, the probable time of death was between 03h00 and
04h00. He examined Hoosen’s body at
06h59 and recorded his
temperature at 35.3 degrees centigrade. He used a method which
calculated the time of death by using a decrease
in temperature. He
claimed that his estimation of the time of death was based on “
the
collation of the temperature and rigor mortis, and the lividity and
so on. It hasn’t got absolute accuracy; it can’t
possibly
have. But it is an estimate.”
Naidoo
[328]   Naidoo
disputed the finding of Gordon. He was of the view that death
occurred several hours earlier, possibly
around midnight or earlier.
Due to the technical nature of the calculations, Naidoo attached
annexure A (titled “Notes on
the Estimation of Time Interval
Since Death”) to his report to explain his conclusions.
[329]   Naidoo
doubted the reliability of core body temperature as an accurate
measure of time of death. The reading of
35.3°C at 06h59 at the
death scene was approximately 1.7 degrees lower than the assumed
rectal temperature of 36.9°C.
[330]   Naidoo
noted that in theory, it is assumed that the normal core temperature
is 37°C and there is a post-death
temperature plateau of between
one and two hours, and thereafter there is a steady post-mortem
temperature drop of approximately
1°C per hour. Using the first
temperature reading of 35.3°C, this is a 1.7°C drop from
normal core temperature. This
must be added to the plateau which
extrapolates to between 2.7 to 3.7 hours since death, which is close
enough to Gordon’s
estimate. However, this method does not take
environmental and other conditions into consideration and is a very
rough rule-of-thumb
process.
[331]   If the
formula is applied to the temperature reading of 27°C, which was
recorded at 10h23 at the beginning
of the autopsy, the rough
calculation would be an interval of some 11 to 12 hours since death.
This would bring the time of death
to between 22h23 and 23h23 the
night before.
[332]   Naidoo
applied the most stringent “Henssge’s nomogram method”
to Gordon’s first and second
temperature measurements,
employing an average environmental temperature of 18.5°C and
arrived at the result of a time-lapse
of seven and 11 hours
respectively since death.
[333]
Naidoo viewed the state of full development of rigor mortis as a more
reliable measurement of the time of death.
Gordon’s finding in
annexure D of the post-mortem report was that rigor mortis “had
developed completely” and
“fully developed in all the
joints” he described. Naidoo concluded that complete rigidity
happens between six to 10
hours after death – with a mean at
eight hours, relying on the well- researched text of Henssge.
[47]
[334]   In his
testimony Naidoo narrowed his estimates to time of death to be
between 22h00 and 00h00 with a possible
mean of 22h50. He concluded
that the evidence given in the first inquest by Naude and Madlala,
who claimed to have seen Hoosen
alive at 03h00 and only dead at
04h00, must be “seriously doubted” and challenged.
Holland
[335]
In her report, Holland noted that in the post-mortem report, the
Post-Mortem Interval (PMI) was stated as “3
to 4 hours”.
However, she noted that Gordon only considered the changes in the
body temperature to assess the PMI. This contrasted
with Gordon’s
scene report which described that the upper limbs, and the lower
limbs were in full rigor mortis. Relying on
the research of Shkrum
and Ramsay,
[48]
she noted that
the time rigor mortis is established in all joints varies from two to
20 hours with a mean eight plus minus one
hour.
[336]
Referring to Saukko and Knight,
[49]
she noted that rigor mortis in ’average’ conditions might
be expected to reach a maximum within six to12 hours. The
finding of
full rigor mortis in the large muscles like the upper and lower limbs
would significantly increase the PMI.
[337]   Holland
concluded that the longer PMI was not consistent with the explanation
of the circumstances of death as
given by the police witnesses in the
first inquest. If the evidence of the two forensic pathologists is
accepted, then Hoosen died
while in the hands of the Security Branch
i.e. under interrogation.
Contrasting the expert
evidence with the police evidence
[338]   All the
police officers who testified in the first and re-opened inquests
insisted that Hoosen died in cell number
2 at Brighton Beach Police
Station sometime after he was locked up around midnight. The charge
office members who were present
claimed that Hoosen died between
03h00 and 04h00. Their evidence is in direct conflict with the expert
evidence of Naidoo and Holland
who asserted that Hoosen must have
died several hours earlier.
[339]   Gopal
insists in his evidence that Hoosen was alive when taken to his cell
at midnight and that he was likely
murdered in his cell sometime
thereafter. Gopal asserted that the evidence of Naude and Meyer ought
not be accepted because they
would have collaborated with whoever
inflicted the injuries on Hoosen in his cell. Gopal appeared to be
adamant that Hoosen did
not commit suicide but was murdered. This was
because: Hoosen was strong psychologically and did not break down in
interrogation;
he was very thin and after being beaten he was weak;
and it was suspicious that Major Benjamin shushed him when he
enquired about
how Hoosen died. The Security Branch would not go to
such lengths if it was actually suicide.
[340]   It
appears then that Gopal accepts that Hoosen  was murdered and
did not commit suicide. However, he insisted
this did not take place
in his presence.
[341]
Notwithstanding the conflict between Gopal’s version and the
views of the aforesaid pathologists, Gopal
and his lawyer did not
seek to rebut such evidence with their own expert report, nor was any
application brought to re-examine
Naidoo and Holland.
[342]   The
legal team for the family carried out an exercise to align the age of
Hoosen’s injuries with the possible
times of death. In this
regard Holland and Naidoo did not challenge the age of the injuries
in the histology report attached to
the post-mortem report. The
histopathological investigation estimated that the ages of the
injuries were between four and 12 hours
before death.
[343]   Gordon
claimed that Hoosen died between 03h00 and 04h00 in the morning. If
we do the subtraction of 12 hours,
the outer limit, or the earliest
time that the injuries could have taken place on Gordon’s
estimation of death at 04h00 would
have been 16h00 in the afternoon.
If death occurred early, say at 03h30 then the earliest injuries
could only have taken place
at 15h30.
[344]   Holland
and Naidoo both concurred that based on the assessment of fully
developed rigor mortis, that death had
occurred between six and 12
hours prior to the declaration of death by Gordon at 06h59 in the
morning. The mean time would have
been approximately eight hours,
working back from that time. On their estimations the latest time of
death would have been at 01h00
in the morning and the earliest time
of death would have been at 19h00 the night before. The mean time of
death would have been
at 23h00 the night before.
[345]   If one
takes the mean time of death as being 23h00 and subtract 12 hours,
then the earliest injuries would have
taken place at 11h00. If we
subtract four hours from 23h00, then the latest time injuries were
sustained was at 19h00. So, on the
mean time of death, we have
injuries being inflicted between 11h00 and 19h00. It is thus
submitted by counsel for the Haffejee
family that this appeared to be
an acceptable range because it is consistent with Gopal’s
evidence in the statement and his
testimony.
[346]   If one
takes the latest time of death as 01h00 and we subtract 12 hours,
that takes us to 13h00. This would not
accord with Gopal’s
evidence that Hoosen received serious assault at least from
mid-morning. On Gopal’s version at
about midday Hoosen was
already doubled over in pain. So, the infliction of serious injuries
must have taken place well before
13h00 which means he could not have
died at 01h00.
[347]   If one
takes Naidoo’s report when he considers the time of death based
on core body temperature measurements,
his calculation is that the
time of death was between 22h23 and 23h23. If one subtracts 12 hours
from 22h23, that gives us infliction
of serious injuries at 10h23.
But if we subtract the four hours, that give us 18h23 which seems to
accord with Gopal’s evidence.
If the time of death was at 23h23
then you get the earliest infliction of injuries at 11h23 and the
latest at 19h23.
[348]   The
expert evidence on the question of time of death also materially
contradicts the evidence of the charge office
personnel i.e. Meyer,
Naude and Madlala. It is submitted by the family’s counsel,
that the court must accept the evidence
of the two forensic
pathologists which has not been rebutted. It is also submitted that
Gordon made fundamental errors in his post-mortem
report, most
notably in relation to time of death and that it must be asked
whether Gordon was simply incompetent, or whether he,
like Magistrate
Blunden, was politely averting his gaze.
[349]   On
returning to the police cover-up, the aspect already dealt with
earlier, it is Marion’s strong opinion
and view that the SAP
investigation was not only sub-standard but aimed at concealing what
really happened between 2 and 3 August
1977. In his scathing
assessment of the investigations carried out he found that minimum
standards of investigation were not adhered
to in regard to the whole
investigation: from the crime scene; collection of evidence;
identification of potential witnesses; going
right through to
securing of the exhibits collected.
[350]   In his
opinion, the shoddy investigations were a deliberate attempt to cover
up the truth about what actually
happened. The investigation was
fixated at covering up the crime committed.
Evaluation
[351]   What
appears not to be in dispute are the approximate times of Hoosen’s
arrest, arriving at Brighton Beach
Police Station and the
commencement of the interrogation. Hoosen’s interrogation seems
to have commenced between 09h20 and
09h35. These involved open palm
slaps, punches and kicks. It seems to have gotten progressively worse
from 10h00 and continued
into the evening.
[352]
Gordon’s estimate of time of death must be dismissed because on
his estimate, the earliest injuries would
only have taken place
between 15h00 and 16h00, which does not accord with Gopal’s
account. Gopal’s version of torture
is the only version
available and cannot be jettisoned simply because he might not be
seen credible on other aspects. I am however
not going to dissect his
evidence to expose such disconcerting aspects as one would do to
establish guilt beyond reasonable doubt
in a criminal trial. Suffice
to say that his testimony was believable on multiple points of
torture and he probably downplayed
the extent and his role in it (as
he seemed to distance himself from other unrelated interrogations of
political detainees as being
merely an observer).  His version
regarding Hoosen’s torture is largely supported by credible
medical evidence tendered
by the medical experts, although his
version did not get to explain for example the burn marks seen on
Hoosen’s body, by
Biggs.
[353]   The
main issue to be determined is the cause and time of Hoosen’s
death. Time of death becomes paramount
because from it one can infer
at what stage Hoosen might have died. Although suggested times of
death are varied, one can work
out the most likely time of death,
taking a cue from Gopal’s testimony and working on the
uncontested histological evidence
which placed the ages of the
injuries at four to 12 hours before death.
[354]   What
emerges from the objective evidence is that Hoosen was killed much
earlier than postulated or claimed in
the police testimonies. His
death was then followed by an elaborate scheme devised or designed by
the police involved to cover
up the cause of his death, which death
was likely to have been directed or carried out with subjective
foresight.
[355]   The
estimated mean time of death of 23h00 by Naidoo, puts the earliest
injuries occurring at 11h00 and is aligned
with Gopal’s time of
when the terrible abuse was inflicted. Naidoo’s estimate of
time of death (based on temperature
reading) at 22h23, which brings
the earliest inflicted injuries to 10h23 is even closer to Gopal’s
account of when the serious
assaults began.
[356]
Therefore, the most probable time of death was between 22h23 and
23h00 on the night of 2 August 1977. One would
be stretching it too
far to put the time of death at 01h00, 3 August 1977 simply because
it does not accord with the rigor mortis
findings made by the
forensic pathologists. That means Hoosen died while in the hands of
the Security Branch of either cardiac
concussion during interrogation
or of cardiac arrest from neck constriction in the cell.
[357]   If
Hoosen died during interrogation, which cannot be excluded, it means
suicide was staged to mask the death under
torture. That is very much
a reasonable possibility in view of the cover-up, since there would
have been no need of one if he died
through a genuine suicide. If he
was still alive, as Gopal asserted, apparently barely alive from
long, barbaric, unrelenting extensive
torture when he was lodged in
the cell, I find that his death in the cell was not, as Magistrate
Blunden found, self- induced or
suicide. He was most likely
strangled/strangulated by third parties (none other than his
torturers) using his garment. Taking from
Thivash’s reliable
testament; the Security Branch members’ elite and feared status
which gave them full access to the
cells anytime; and applying sheer
common sense, it seems improbable in the extreme that Hoosen
committed suicide by strangling
himself to the lower rung of the
grille while in the cell alone. Hoosen appeared to have been a
religiously and politically principled
man who stuck to his
principles through thick or thin. This, apparently, is what enraged
his interrogators even more as he was
not, as Gopal stated,
forthcoming with information useful to them. Such extra-judicial
killings and cover-ups were the order of
the day during the apartheid
era policing methods.
[358]
Therefore, what the police conjured up in their testimonies must be
rejected. They could not even explain about
the garments which Hoosen
died wearing. Clearly it must have been garments they provided to him
for reasons best known to them
before he died. There is also no
evidence of an Occurrence Book entry to show that he was lodged in
the cell at midnight, or indeed
at all.
[359]   Whether
Hoosen died “on the table”, or in the cell, as it were,
one thing is very clear and that is
that the Security Branch officers
who were involved in his kidnapping and torture were very much
responsible for it. It does not
matter that possibly a few had to do
the dirty job of physically torturing him as others present assisted.
It was teamwork and
all those present participated in one way or
another.
[360]   Counsel
for Gopal submitted that Gopal was merely a bystander or an observer.
I do not agree since his evidence
does show that he played a role,
minimal or minimised as it may have been, but nevertheless a positive
one and he thereafter conspired
to conceal the truth. He may not have
pulled the proverbial trigger but he participated in a common design
to round up, interrogate,
assault with intent to extract information,
acting together with his colleagues. The extent of the assaults
clearly shows that
the interrogators and those assisting them must
have foreseen, and by inference did subjectively foresee that death
would or might
follow. Despite this fact, all of them went ahead with
their unlawfully designed objectives and reconciled themselves with
the
foreseen consequences or were reckless of the fatal consequences
that could flow from it.
[361]   Counsel
for Gopal also submitted that up until September 2021, Gopal was
under the impression that he would be
used by the State as a s 204
witness against his colleagues who tortured Hoosen. She contends that
if common purpose was permitted
to apply to him, he would not have
the right to a fair trial as he was initially promised the protection
of being a s 204 witness.
As a result, it was argued, he forfeited
his constitutional right to remain silent and not incriminate
himself. Obviously, one
is not dealing with a criminal trial and
these proceedings do not attract the s 204 provisions. I therefore,
cannot decide his
fate based on those provisions.
Findings and
recommendations
[362]   I have
established that there are sufficient reasons to set aside the
original inquest findings. This court is
now required to determine
whether there is prima facie evidence before it upon which a
reasonable person might convict a person
of an offence arising from
Hoosen’s death. The ultimate decision, whether to prosecute or
not, will rest with the Director
of Public Prosecutions after the
record of the proceedings is referred to her in terms of ss 17(1)(a)
and (b) of the Inquests Act.
[363]
In
Freedom
Under Law v National Director of Public Prosecutions and Others
[50]
Murphy J aptly held as follows regarding the purpose of an inquest
and what should ideally follow after a finding has been made:
‘
[72]
An inquest is an investigatory process held in terms of the Inquests
Act which is directed primarily at establishing a cause
of death
where the person is suspected to have died of other than natural
causes. Section 16(2) of the Inquests Act requires a
magistrate
conducting an inquest to investigate and record his findings as to
the identity of the deceased person, the date and
cause (or likely
cause) of his death, and whether the death was brought about by any
act or omission that prima facie amounts to
an offence on the part of
any person. The presiding officer is not called on to make any
determinative finding as to culpability.
…
[77] … The only
question for the magistrate, in terms of  16(2) of the Inquest
Act, was whether the death was brought
about by conduct prima facie
amounting to an offence on the part of any person. A prima facie case
will exist if the allegations,
as supported by statements and real
documentary evidence available, are of such a nature that, if proved
in a court of law by the
prosecution on the basis of admissible
evidence, the court should convict.…’ (References
omitted.)
[364]
In
Re Goniwe and Others
(2)
[51]
the court held that the standard of proof required to make a finding
in an inquest is not that which is applied in a criminal trial.
The
test is less stringent in inquests. The court explained this
rationale as follows:
[52]
‘
Bearing
in mind the object of an inquest it is my opinion that the test to be
applied is not the 'beyond reasonable doubt'
test but something less
stringent. In my opinion the test envisaged by the Inquest Act is
whether the judicial officer holding
the inquest is of the opinion
that there is evidence available which may at a subsequent criminal
trial be held to be credible
and acceptable and which, if accepted,
could prove that the death of the deceased was brought about by an
act or omission which
involves or amounts to the commission of a
criminal offence on the part of some person or persons
.’
[53]
[365]   I
therefore make the following findings:
1.
The finding and judgment of Magistrate TL Blunden dated 15 March 1978
in Inquest
No. 951/77 is set aside.
2.
The cause of death of Dr Hoosen Mia Haffejee is attributable to
either of the
following two possibilities:
(a)
Hoosen died following a cardiac incident while under torture;
alternatively,
(b)
Hoosen died from a cardiac incident caused by ligature constriction
applied by the Security
Branch members either while less conscious,
unconscious or debilitated after torture.
3.
Time of death was not in the early morning but late on the night of 2
August
1977, the most likely time range being between 22h23 and
23h00.
4.
The Security Branch officers primarily responsible for torturing and
murdering
Hoosen are Captain Petrus Lodewikus du Toit and Lieutenant
James Brough Taylor.
5.
While Du Toit and Taylor played the leading roles in causing the
death of Hoosen,
those who played various other roles in the
interrogation, torture and cover-up must also be held responsible for
acts connected
to Hoosen’s murder. They associated themselves
with what happened to Hoosen and did not raise the alarm. These
persons are:
(a)
Brigadier Steenkamp, Commander of Security Branch, Durban;
(b)
Colonel Ignatius Gerhard Coetzee,2IC Security Branch, Durban;
(c)
Major Joseph Benjamin (formerly Moonsamy);
(d)
Lieutenant Vic MacPherson;
(e)
Warrant Officer Shunmugam (Schrewds) Govender;
(f)
Sergeant Veera Ragalulu Naidoo (VR Naidoo); and
(g)
Mohan Deva Gopal.
6.
The former SAP uniform branch members stationed at Brighton Beach
Police Station,
who turned a blind eye and helped to facilitate the
Security Branch cover-up, defeated the ends of justice and are
accessories
after the fact to murder. They include former Constables
Johannes Nicolaas Meyer, Derek Hugh Naude and Shadrack Madlala.
[366]   As
stated earlier, Du Toit died on 15 April 2008; Taylor died on 19
August 2019; Vic MacPherson died on 20 April
2017; and Joseph
Benjamin died on 16 December 2010. Except for VR Naidoo and Gopal all
other security branch members have either
died or could not be
traced, while of the charge office uniform branch members, Madlala
has passed on.
[367]   It is
thus recommended that certain charges be considered by the National
Prosecuting Authority (NPA) against
the following persons:
1.
Surviving members of the Security Branch:
(a)
Mohan Deva Gopal – Murder (by common purpose); and possibly
telling lies under oath
in his testimony (i.e. perjury).
(b)
Veera Ragalulu Naidoo – Further investigations to be done to
establish whether he
was present or establish his whereabouts during
the periods of Hoosen’s interrogation and death with the view
to include
or exclude him in the murder by association.
2.
Derek Hugh Naude and Johannes Meyer – accessory to Hoosen’s

murder (from participating with the Security Branch in the cover-up
and giving false testimony before the first inquest court;
and be
investigated for perjury in providing multiple false statements under
oath before this court, knowing them to be false with
regard to
Hoosen’s physical state (i.e. “perfect health”) and
in the handling of cell no. 2 keys.
3.
Matheevathinee Benjamin – perjury, for giving false testimony

under oath with regards to e.g. finding bits of metals and nails that
looked like shrapnel for bombs while cleaning Hoosen’s
flat;
denying giving Security Branch members a key to Hoosen’s flat;
denying meeting Gopal and other members of the Security
branch at
Delhi Restaurant; denying being entertained with booze and cash by
the Security Branch members; and claiming to having
been threatened
by the Haffejee family after Hoosen’s death.
[54]
Without her handing over Hoosen to the Security Branch, he possibly
would still be alive today or would have progressed in his

profession; spent a long quality life with his family; and possibly
made more invaluable contributions to our hard-fought freedom
and
democracy. However, her demeanour during her testimony appeared
entirely un-repentant.
[368]   In
conclusion, may I convey my deep gratitude to all counsel involved
for their invaluable and professional hard
work to get this re-opened
inquest concluded and the truth be exposed to afford the Haffejee
family some semblance of closure.
I am advised that there are many
more families awaiting the inquests of their loved ones to be opened
or re-opened to get to the
truth of how they died while in Security
Branch detention.
[369]   In the
KwaZulu-Natal list, we can mention the names of Joseph Masobila
Mdluli who died at the Durban Security
Branch, Fischer Street offices
on 19 March 1976, allegedly from falling against a chair and hitting
his head and chest on a door;
Samuel Malinga who died at
Pietermaritzburg Prison, on 22 February 1977 allegedly from natural
causes; Aaron Khoza, at Pietermaritzburg
Prison, on 26 March 1977
from alleged suicide by hanging; Bayempini Mzizi at Brighton Beach
Police Station on 10 August 1977, allegedly
from suicide by hanging;
and Ephraim Mthethwa at Durban Central Prison on 25 August 1985,
allegedly from suicide by hanging.
[370]   With
regard to Bayempini Mzizi, I am advised that attempts were made to
also re-open his inquest and consolidate
it with this inquest but it
has not happened since there was still no decision taken in that
case.
ZP NKOSI J
CASE INFORMATION
EVIDENCE
LEADER:
ADV.
D C MCDONALD
(Instructed
by National Prosecution Authority
FOR
THE HAFFEJEE FAMILY:
ADV.
H. VARNEY
ASSISTED
BY:
ADV.
MZF SULEMAN
(Instructed
by ASJ Attorneys 1
st
Floor
372
Kandahar Avenue, Ladysmith)
FOR
THE FORMER MEMBER OF THE:
MS
KESHAV
SECURITY
BRANCH
(Instructed
by State Attorney, Durban)
[1]
Volume
K, page 2637.
[2]
Volume
K, items 4, page 2641 (2681 of PDF).
[3]
TRC
Final report, Volume 3, Chapter 3, page 179.
[4]
Nkadimeng
v National Director of Public Prosecution
and
Others
,
Case Number 3554/2015, Gauteng Division; and
Rodrigues
v National Director of Public Prosecutions
and
Others
2021
(2) SACR 333
(SCA) paras 21-23.
[5]
Rodrigues
ibid.
See also the 2019 representations of Lukhanyo Calata and other
families to the Judicial Commission of Inquiry into Allegations
of
State Capture, Corruption and Fraud in the Public Sector, including
Organs of State.
[6]
Inquests
Act 58 of 1959.
[7]
Volume
B2, pages 783-789.
[8]
Volume
B8, pages 822-829.
[9]
Volume
B6, page 788.
[10]
Volume
B 11, page 842.
[11]
Volume
B 11, page 841.
[12]
Volume
B 11, page 843.
[13]
Volume
B11, pages 844-845.
[14]
2021
Transcript Bundle, page 36.
[15]
Volume
A1, page 1.
[16]
2021
Transcript Bundle, page 70, lines 16-18.
[17]
S
v Chabedi
2005 (1) SACR 415 (SCA).
[18]
A
Bellengere
et
al
The
Law of Evidence in
South
Africa: Basic Principles
1 ed (2013) Oxford University Press Southern Africa, Cape Town at
60.
[19]
Ibid
at 61.
[20]
Welz
and
Another v Hall and Others
1996 (4) SA 1073
(C) at 1079C-D.
[21]
Volume
L3, page 2673.
[22]
Volume
E, page 1135.
[23]
Magistrates’
Courts Act 32 of 1944
.
[24]
Aggett
Reopened Inquest
exhibit “G1”, pages 4-19.
[25]
The
re-opened
inquest
into
the
death
of
Ahmed
Essop
Timol
(
IQ01
/
2017
)
[
2017
]
ZAGPPHC
652
(
12
October
2017).
[26]
Newspaper
photos of Du Toit and Taylor, Volume H1, page 1828.
[27]
Volume
A3, page 186 (finding at page 165 lines 1-5 as converted to
centimeters).
[28]
Volume
A3, page 40 line 27-page 41 line 17.
[29]
Volume
A3, page 594, line 20; and Taylor at TRC
section 29
hearing, Volume
E10, paginated page 1054 (pg 47).
[30]
S
v Le Grange and Others
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA).
[31]
S
v Dube
and
Others
2009 (2) SACR 99 (SCA).
[32]
The
re-opened
inquest
into
the
death
of
Ahmed
Essop
Timol
(
IQ01
/
2017
)
[
2017
]
ZAGPPHC
652
(
12
October
2017).
[33]
Terrorism Act 83 of 1967.
[34]
The
re-opened
inquest
into
the
death
of
Ahmed
Essop
Timol
(
IQ01
/
2017
)
[
2017
]
ZAGPPHC
652
(
12
October
2017).
[35]
Ibid.
[36]
Ibid.
[37]
Ibid.
[38]
TRC
Report, Volume 2, Chapter 3, page 206, para 77.
[39]
Police
Act 7 of 1958.
[40]
The
re-opened
inquest
into
the
death
of
Ahmed
Essop
Timol
(
IQ01
/
2017
)
[
2017
]
ZAGPPHC
652
(
12
October
2017).
[41]
Internal Security Act 74 of 1982.
[42]
Law
of Evidence Amendment Act 45 of 1988
.
[43]
Volume
C2, pages 872-873; Volume C4, pages 877-878; and Volume C5, pages
881-882.
[44]
Volume
B3, pages 794-795.
[45]
The
photos can be seen in Volume B6-B9 at pages 801-837.
[46]
Volume
L7, page 2755.
[47]
C
Henssge and B Knight
The
estimation of the time
since
death in the early postmortem period
(1995),
E Arnold, London at 152 and Table 5.3.
[48]
M
Shkrum and David Ramsay
Forensic
Pathology of Trauma
:
Common
Problems for the Pathologist
(2007) 10. 1007/978 – 1 – 59745 – 138 – 3).
[49]
P
Saukko and B Knight
Knight’s
Forensic Pathology
3 ed (2004), Oxford University Press, London at 39-40, 421.
[50]
Freedom
Under Law v National Director of Public Prosecutions and Others
2014 (1) SA 254 (GNP).
[51]
In
re Goniwe and Others
(2)
1994 (2) SACR 425 (SE).
[52]
Ibid
at 428C-E.
[53]
Also
see
Padi
en ‘n Ander v Botha NO en Andere
1995 (2) SACR 663
(W) at 670D-E.
[54]
Volume
G11, pages 1453, para 19; page 1456, paras 25 and 26; page 1455,
paras 25-27.