by Andre Brink
“What now?”
“If they can play dirty, we do the same.”
“That’s why I wanted to see you,” said Ben urgently. “I don’t want you to mess everything up at this stage.”
“Me mess everything up?! What you talking about, man? Is Gordon dead or isn’t he?”
“I know, Stanley. But it’s gone far enough.”
A brutal laugh. “Don’t kid yourself. It’s just started.”
“Stanley.” It felt like pleading for his own life, putting his hand on the big man’s wrist on the steering wheel as if to restrain him physically. “It’s out of our hands now. We must let the law run its course. And whoever is guilty will pay for it.”
Stanley snorted. “They all playing the same ball game, lanie.”
Ben preferred to ignore him. “There’s one thing we can do,” he said “One thing we must do. And that is to make sure we get the best advocate in Johannesburg to represent the family.”
“What’s the use?”
“I want you to go with me to Dan Levinson tomorrow. He must brief an advocate as soon as possible. One who won’t allow them to get away with anything, no matter what the cost.”
“Money is no problem.”
“Where does it come from?”
“That’s not your worries.”
“Will you go with me tomorrow?”
Stanley sighed, irritable. “Oh hell man, all right. But I tell you it’s no use.”
They drove back to the filling station, stopping in the same dark nook behind the pumps where the smell of oil hit their nostrils with fresh violence.
“All I’m asking you is to give the court a chance, Stanley.”
A harsh, bitter laugh. “All right. Meet you in our smart liberal pal’s office tomorrow. See if we can get an advocate who’ll bring Gordon and Jonathan back to us.”
“That’s not what I said.”
“I know, lanie.” His voice sounded almost soothing. “But you still believe in miracles. I don’t.”
4
The court inquest into the death of Gordon Ngubene coincided with the school holidays (21 April – 9 May), which made it possible for Ben to attend all the sessions. Most of the public interest stirred up by the funeral two months before seemed dissipated by then. There was a fair number of black spectators in the public galleries – some of them quite noisy and causing disturbances with shouts of “Amandla! – Freedom!” and a bristle of clenched fists – but, apart from the inevitable cluster of journalists, there were very few whites: some students and lecturers from Wits, representatives of the Black Sash and the Progressive Reform Party, a Dutch delegate from the International Commission of Jurists who happened to be in South Africa for consultations, and a small sprinkling of others.
A useful and dispassionate account of the proceedings was published subsequently by the Institute of Race Relations. It was banned soon afterwards, but there was a copy among Ben’s papers.
GORDON NGUBENE (54) an unskilled labourer from Orlando West, Soweto, unemployed at the time of his arrest, was detained on 18 January this year in terms of Article 6 of the Terrorism Act and held at John Vorster Square. On the basis of certain information received by his family an urgent application was made to the Supreme Court on 5 February to restrain the Security Police from assaulting Mr Ngubene or from interrogating him in an unlawful manner, but on 10 February the application was rejected for lack of evidence. On 25 February Mr Ngubene’s death in detention was announced by the SABC and confirmed by the police the following day, although his relatives had never been informed officially. On 26 February a post mortem examination was conducted on Mr Ngubene’s body by the State Pathologist, Dr P. J. Jansen, assisted by Dr Suliman Hassiem on behalf of the family. Mr Ngubene was buried on Sunday 6 March and on the following day Dr Hassiem was detained in terms of the Internal Security Act, which prevented the legal representatives of the family from consulting with him. In anticipation of Dr Hassiem’s release the inquest of Mr Ngubene’s death, originally scheduled for 13 April, was postponed sine die. Soon afterwards the magistrate was informed that there was no likelihood of Dr Hassiem’s release in the near future, and in view of the fact that he had also signed the post mortem report drawn up by Dr Jansen, a new date was set for the inquest and the proceedings opened in the Johannesburg Magistrate’s Court on 2 May.
According to the medical report submitted on the first day Dr Jansen had executed a post mortem on the naked body of a middle-aged Bantu male, identified as Gordon Vuyisile Ngubene, on 26 February.
Mass: 51,75 kilogram. Height: 1,77 metres. Post-mortem lividity dependent on the lower limbs, scrotum, face and back. Some blood-stained fluid from the right nostril. Tongue protruding between teeth.
The report listed the following injuries on the body:
1. Ligature around the neck between the thyroid cartilage and the chin, and a broad ligature mark 4 cm wide below, more prominent laterally. No bruising or haemorrhage of the deep tissues of the neck. Tracheae compressed. Hyoid bone not damaged.
2. Swelling over right cheek bone with bruising of the underlaying tissues and fracture of the bone itself.
3. Three small round abrasions of 3 mm inside left ear and a larger abrasion of the same kind in the right ear.
4. A haematoma over the lumbosacral area.
5. The seventh right rib broken at the costochondral junction.
6. Abrasions and laceration marks on both wrists.
7. Marked swelling of the lower scrotum. A specimen taken from it had a dried-out parchment-like appearance and revealed traces of copper on the skin.
8. Horizontal lacerations and abrasions on both shoulder blades, the chest and abdomen.
9. The right ulna broken about 6 cm below the elbow.
10. Extreme congestion of the brain with small haemorrhages, brain fluid bloodstained. Also moderate congestion and waterlogging of the lungs.
11. A variety of other bruises and abrasions, concentrated on the knees, ankles, abdomen, back and arms.
Dr Jansen found that death had been caused by the application of force to the neck, consistent with hanging. Under cross-examination he conceded that such pressure could also have been exerted in other ways, but insisted it was beyond his jurisdiction to speculate on such possibilities. However, he admitted that some of the injuries had been older than others – several of them as old as fourteen to twenty days, others three to four days, still others of even more recent date. He confirmed that Dr Hassiem had been present at the autopsy and that, as far as he knew, Dr Hassiem’s report had been identical to his in most respects. On a question by Adv Jan de Villiers, S. A., on behalf of the family, Dr Jansen said he did not know why Dr Hassiem would have taken the trouble of drawing up a separate report if he had co-signed the main one.
After that, several Special Branch witnesses were called to give evidence. Capt F. Stolz testified that on Tuesday 18 January, at about 4 a.m., acting on certain information, he had gone to the house of the deceased, accompanied by Lieut B. Venter, Lieut M. Botha and several black Security Policemen. Mr Ngubene had resisted arrest and a certain amount of force had had to be applied to restrain him. Subsequently Mr Ngubene had been interrogated on several occasions. The police had reason to believe that the deceased had been involved in subversive activities and several incriminating documents had, in fact, been found in his house. In view of the fact that state security was involved, these documents could unfortunately not be submitted to the court.
According to Capt Stolz the deceased had declined to cooperate, although he had always been treated with courtesy and correctness. In reply to a question by Adv Louw, for the police, Capt Stolz emphasised that Mr Ngubene had never been assaulted in his presence and that he had always enjoyed good health while in detention, except for sporadic complaints of headaches. On 3 February he had also complained of toothache and the following morning he had been examined by a district surgeon, Dr Bernard Herzog. As far as he knew Dr Herzog had extracted three teet
h and prescribed some tablets, but he had emphasised that he could find nothing seriously wrong with the deceased. Consequently the police continued their interrogation as usual. Asked what he meant by “as usual” Capt Stolz said it had been customary for the deceased to be taken from his cell at 8 a.m. and brought to the captain’s office, where he would remain until 4 or 5 p.m., sometimes earlier. During the period of his detention members of the investigating team had bought food for Mr Ngubene “from their own pockets”. He added that the deceased had been allowed at all times “to sit or stand as he wished”.
On the morning of 24 February the deceased unexpectedly showed signs of aggression and tried to jump through an open window in Capt Stolz’s office. He was acting “like a madman” and had to be restrained by six members of the Special Branch. As a precautionary measure he was then manacled and put in foot-irons attached to his chair. At that stage he appeared quite calmed down and by noon he announced that he was prepared to make a full statement of his subversive activities. On Capt Stolz’s request Lieut Venter took down three pages of the statement in longhand, whereupon Mr Ngubene complained of feeling tired. He was then taken back to his cell. The next morning, 25 February, one Sergeant Krog reported to Capt Stolz that Mr Ngubene had been found dead in his cell. A note found with the body was submitted to the court. It read: John Vorster Square, 25 February. Dear captain, You can carry on interrogating my dead body, perhaps you will get what you want from it. I prefer to die rather than to betray my friends. Amandla! Your friend, Gordon Ngubene.
Cross-examined by Adv De Villiers, for the family, Capt Stolz repeated that the deceased had always been treated well. Asked how he could account for the injuries found on the body he said he had no idea, detainees sometimes deliberately injured themselves in various ways. Some injuries might have been caused by the scuffle on 24 February. Adv De Villiers wanted to know whether he did not regard it as excessive to require six strong policemen to subdue a frail man who had weighed barely 50 kilograms at his death, whereupon Capt Stolz repeated that the deceased had acted “like a madman”. Asked why there had been no bars in front of the window to prevent detainees from trying to jump out, the captain said that the bars had been removed temporarily the previous day for repairs to the window frame.
Turning to the note allegedly found on the body, Adv De Villiers said he found it strange that it should bear the date of 25 February since the body, discovered at 6 a.m. that morning, had already shown signs of advanced rigor mortis.
Capt Stolz: “Perhaps he was confused in his head.”
Adv De Villiers: “As a result of torture?”
Capt Stolz: “He wasn’t tortured.”
Adv De Villiers: “Not even on February third or fourth when he complained of headache and toothache?”
Capt Stolz complained to the magistrate that the advocate was trying to cast unwarranted suspicion on the Special Branch. The magistrate, Mr P. Klopper, asked counsel to refrain from insinuations, but allowed him to proceed with his cross-examination. The witness stuck firmly to his earlier evidence, except for offering some elaboration on the alleged involvement of the deceased with the ANC and “activities endangering the security of the State”. Asked about the portion of the written statement taken on the afternoon of 24 February, Capt Stolz said the document contained material which could not be disclosed in court as it would hamper the Security Police in an important investigation.
Adv De Villiers: “I put it to you that the only ‘subversive activities’ the deceased had ever been involved in were his efforts to establish what had happened to his son Jonathan Ngubene, allegedly shot in a riot in July last year, although several witnesses have been traced who are prepared to testify that in fact Jonathan died in detention in September, three months later.”
The advocate for the police, Mr Louw, objected against the allegation on the grounds that it could not be proved and that it was irrelevant to the present inquest.
Adv De Villiers: “Your Worship, the present witness has gone out of his way to implicate the deceased through wild accusations of ‘subversive activities'. It is my good right to put the other side of the case, especially if it can support my argument that we are dealing with an innocent man who died in the hands of the Security Police under what can only be termed highly questionable circumstances. If the Security Police are interested in clearing their reputation then surely they will not object to the real facts being presented to the court?”
At this stage magistrate Klopper adjourned the court to the next day. Upon resumption he announced that this was an ordinary inquest into the death of a specific person, not a full-scale judicial enquiry; consequently he could not allow Adv De Villiers to present evidence or to make allegations about the death of Jonathan Ngubene.
Adv De Villiers: “Your Worship, in that case I have no further questions to put to Capt Stolz.”
In the course of the second day of the hearing several other witnesses for the Security Police were called to corroborate the evidence given by Capt Stolz. However, under cross-examination there was some difference of opinion on the removal of the bars in front of the window and the reasons for it, as well as on the exact nature of the scuffle on 24 February. In addition, Lieut Venter also conceded under cross-examination that there had been a previous scuffle in the same office on 3 February, the day before the district surgeon had been called in to attend to Mr Ngubene. Asked whether anyone else had visited the deceased before his death, Lieut Venter said a magistrate had paid him a routine visit on 12 February, accompanied by Capt Stolz and himself, but that the deceased had not complained of anything.
Adv De Villiers: “Does it surprise you that he had no complaint?”
Lieut Venter: “Your Worship, I don’t understand that question.”
Mr Klopper: “Mr De Villiers, I have asked you before to refrain from insinuations of this kind.”
Adv De Villiers: “As it pleases your Worship. Lieutenant, can you tell me whether Capt Stolz was also present while the district surgeon examined the deceased on fourth February?”
Lieut Venter: “I wasn’t there, but I presume the Captain was present.”
Next, Sergeant Krog and two constables who had discovered the body on the morning of 25 February, were called to testify. One of the blankets in the cell of the deceased had allegedly been cut into strips with a razor blade (before the court) to form a rope, one end of which had been tied round the bars of the cell window and the other round Mr Ngubene’s neck. The witnesses differed on the way in which the blanket had been tied round the bar and also about the position of the hanging body when they found it. (Sergeant Krog: “I’d say his feet were about six inches from the floor” Const Welman: “He was hanging quite high, his head almost touching the bars, so his feet must have been a foot or more from the ground” Const Lamprecht: “As I remember his toes just touched the floor”.) They agreed that no one had seen the deceased alive after he had been locked inside the cell at about half-past five the previous afternoon. According to Sergeant Krog all cells were supposed to be visited at hourly intervals through the night to make sure everything was in order, but unfortunately this had been omitted on the night in question. “We were very busy and I suppose there was some misunderstanding about whose duty it was to do the rounds.”
Adv De Villiers: “Suppose I put it to you that Capt Stolz or some other officer from the Special Branch had instructed you to stay away from the cell that night?”
Sergeant Krog: “I strongly deny that, your Worship.”
When the enquiry resumed on 4 May, Adv Louw, for the police, submitted four affidavits by detainees, testifying that they had all seen Gordon Ngubene between 18 January and 24 February, that he had been in good health on every occasion, and that they themselves had been treated very well by the same officers responsible for interrogating Mr Ngubene. However, under cross-examination the first of these detainees, Archibald Tsabalala, denied that he had ever met Mr Ngubene in detention, and stated that he had been for
ced to sign the affidavit before the court. “Capt Stolz hit me many times with a length of rubber hosepipe and said they would kill me unless I signed.” Thereupon he pulled up his shirt and showed his bruised back to the court. When Capt Stolz was recalled to the witness box he testified that Tsabalala had slipped and fallen down a staircase a few days before. He insisted that Mr Tsabalala’s original statement had been made voluntarily. After some further cross-examination Capt Stolz was allowed to take Mr Tsabalala back to John Vorster Square.
Following this testimony, Adv Louw, for the police, announced that the other three detainees whose affidavits had been submitted, could not be called for cross-examination as it would prejudice the security of the state. In the face of strong opposition from Adv De Villiers the magistrate ruled that the court would nevertheless consider their affidavits as evidence.
Dr Bernard Herzog, a Johannesburg district surgeon, testified that on the morning of 4 February he had been called by Capt Stolz to examine a detainee, identified to him as Gordon Ngubene. He could find nothing wrong with the man. Mr Ngubene had complained of toothache and as three molars had showed signs of advanced decay he had extracted them and given Mr Ngubene some aspirin for the pain.
The next time he’d seen the deceased was early on the morning of 25 February when he had been summoned to John Vorster Square where he’d found Mr Ngubene dead, lying on the floor of his cell, dressed in grey trousers, a white shirt and a maroon jersey. Sergeant Krog had informed him that he had personally discovered the body about half an hour earlier, hanging from the bars of his window, and that he had taken it down. According to the sergeant the blanket had been tied so tightly round the neck that they’d had to cut it loose with a razor blade discovered in the cell. Rigor mortis had already reached an advanced stage and he’d concluded that death must have occurred as long as twelve hours before.
Adv De Villiers embarked on his cross-examination in a decidedly aggressive manner, commenting extensively on the fact that Dr Herzog had not found it necessary to examine the deceased more thoroughly on 4 February (Dr Herzog: “Why should I? He only complained about his teeth”); and that he couldn’t remember whether Capt Stolz or anyone else had been present during the examination in question. Accused by Adv De Villiers of having been “intimidated” by the Security Police or even of deliberately co-operating with them “in playing their disgusting little games of hide and seek” Dr Herzog objected strongly and appealed to the court for protection. As far as the preliminary examination of the corpse was concerned he declined to offer a definite opinion about the estimated time of death, pointing out that rigor mortis could be influenced by any number of extraneous circumstances. He could offer no explanation for the fact that, when the state pathologist Dr Jansen had performed the post mortem on 26 February, the corpse had been naked. Following a request by Adv De Villiers, Capt Stolz was again recalled to the witness box, but he was unable to say what had become of the clothes the deceased had worn at the time of his death, or why they had not been forwarded to the State laboratories for examination. He did, however, offer on behalf of the Security. Police to compensate the family for the loss of the clothes.
