Re-opened Inquest into the Death of Dr Hoosen Mia Haffejee

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nkosi J
• Judgment Date: 13 September 2023
• Citation: 2023 JDR 3504 (KZP)
• Hearing Date: 13 September 2023
• Docket Number: 01/2021
• Court: KwaZulu-Natal Division, Pietermaritzburg

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

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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:

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‘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.’

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[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 –

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(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

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(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...