by Andrew Brown
‘It’s okay, Stefan. She’s just playing tough. That’s her job. Maybe it wasn’t such a good idea to bring you along after all. Let me speak to her and I’ll meet you outside. Have a smoke and I’ll tell you what she says.’
Svritsky did not look at him, but relented, striding down the corridor towards the stairwell. His tennis shoes squeaked on the polished floor and he muttered something under his breath. Richard watched the broad back of his client with a mixture of loathing and apprehension before entering the office.
Du Toit’s workspace was cramped. She was already positioned behind her scratched table, extracting a wad of documents from a Manila envelope. Richard had been here many times before, but it still surprised him to note how ill-equipped a senior controller’s office was. Dockets and files were piled on the desk and the floor, spilling their contents like carcasses. There was no filing cabinet and no shelving to contain the onslaught. He wondered how she managed without a filing clerk or personal assistant. A small area of table top had been kept open against the wall, enough for a brown-stained kettle and a thick coffee mug. Richard glanced at the inscription splayed on the side – ‘Don’t make your problems mine,’ it said in blue capitals – and grimaced inwardly. Granules of instant coffee had formed tacky pools around the base of the mug. The aluminium-framed windows looked out onto grey buildings, and the walls of the room were largely bare, haphazardly adorned with torn and faded departmental posters of sad children and women with bruised wrists. Richard could not imagine working in such a place and yet its stark authenticity was somehow alluring.
He thought of his own firm’s offices situated in a newly renovated building in De Waterkant. The double-volume expanse made use of natural light through a series of cleverly designed portals, allowing the light to filter in without the heat or glare. The roof had been converted into a deck, complete with umbrellas, reclining chairs and a bar counter hewn from a massive slab of wood. The rooftop displayed the full vista of Cape Town, a sweeping view from the base of Signal Hill around the cupped bowl of the city to the harbour and the sparkling bay surrounding Robben Island. The office furniture was modern but friendly, with chrome-and-glass coffee tables, leather couches and broad conference tables surrounded by high-backed chairs. Ice clinked in the pitchers of fresh water, adorned with sprigs of mint. Colourful but unostentatious artwork had been chosen by the interior designer, the wife of one of his partners. A series of highly textured canvases, resembling the bark of trees, greeted the visitor in the foyer. The nature theme was carried through to reception, with a delicate Japanese garden and bonsai tree (changed every week) at the centre of each coffee table. Palm ferns and bamboo reached towards the beamed loft. One partner had gone so far as to suggest releasing a family of doves into the office space, but the prospect of presenting clients with contracts splattered with bird excrement had dampened the firm’s enthusiasm for the idea.
Richard rather wished he was in his office now, skimming off the foam of a cappuccino with a chocolate biscotti. Nophumla, the bustling tea lady, always slipped one onto his saucer, even though they were meant for clients who sat waiting at reception for their expensive consultations to begin. ‘Trinkets and cleavage’ was the office manager’s way of diverting attention from the staggering hourly rates charged by the senior partners. And the receptionist’s breast-line was certainly terrific.
Yet, despite all the attention to detail, there was more fervour in the prosecutor’s grimy room than in the entirety of his own plush offices. Her degraded resources only reminded him of the ferocity of her commitment and his own increasing lack of passion. Du Toit would not need to grandstand, he felt, or tell stories at dinner parties. In truth, he could not imagine her holding a dinner party. She did not have the lightness or mendacity to pursue such things. But in bed, lying alone with her own tired thoughts, she would know what she had achieved. Trite as it was, he felt a gnawing misgiving about the egotistical achievement of keeping his client out of jail. The money and self-aggrandisement no longer sustained his interest.
‘Mr Calloway’ – Du Toit did not let him dwell on his thoughts – ‘if you ever rock up here with your client without first clearing it with me, I’ll have you reported to the Law Society. You know full well that you didn’t advise me that you wished to bring him along. And I’d never have sanctioned it.’
‘Sorry,’ he replied, a little too meekly he felt. ‘It must’ve slipped my mind to mention it to you. Please accept my apology. He’s outside the building having a smoke.’ He regretted his tactic now; she had not been intimidated, only annoyed. The eczema in the joint behind his knees felt dry and itchy – he longed to be able to pull off his trousers and soothe the irritation, rubbing in the cream his dermatologist had given him.
Du Toit grunted, pulling out a creased pack of cigarettes from her jacket pocket. She opened the sliding window, frowning for a moment at the gritty breeze that swirled into the room. The plastic lighter looked flimsy but produced a strong blue flame. She drew on the cigarette, blowing the smoke back out into the warm wind. Richard was repelled by the sight of the smoke trailing over her skin and hair as it blew back into the office. He imagined the smoky acidity of her body by the end of the day.
‘Can’t even smoke in my own office these days,’ she said ruefully, softening slightly.
Richard took the opportunity and moved opposite her across the table. ‘Cerissa, look, is the NPA really going to pursue this one?’ He tried to lower the tone of his voice in order to sound more solemn. ‘I’ve gone through all the statements and it just doesn’t add up to a case. As far as I can see,’ he added, seeing her face darken again. ‘That witness statement … the only eyewitness … I mean, that statement is useless. You can’t go to trial on that. It isn’t properly signed, we all know the name on the statement is false, and it tells us almost nothing about what he supposedly saw.’ He felt he was becoming plaintive and stopped, waiting for her response.
‘Yes, we know the name is false,’ Du Toit replied coolly. ‘That doesn’t make his testimony false, Mr Calloway.’
‘Sorry, are you saying that you’ve found the witness? Have you spoken to him?’
‘No, I am not saying that. I’m saying that if you’d read the statements as you say you have, you would’ve seen that we have a witness who saw your client get into the vehicle outside his club, a matter of minutes before the collision. We have a witness on the scene who describes someone who sounds terribly like your client getting out of his car to inspect the dying pedestrian. Sounds like a case to me. So, if you had indeed read the paperwork as you say, Mr Calloway, you’d know all that. So what are you really saying?’
Richard reddened slightly and changed his approach, trying to harden his voice. ‘Ms du Toit, unless you can find that witness, identify him and provide us with a proper version of his evidence, I’m going to bring an application to have this charge stayed. I cannot, with respect, be expected to defend a man on a culpable homicide indictment when the only real eyewitness is unidentified and says nothing more than “I saw the car run him down.” And I don’t believe that the court will force me to continue in those circumstances, not for one minute.’
‘So what’s your client’s version, Mr Calloway?’ Du Toit folded her arms, the cigarette still gripped between her fingers. ‘He wasn’t there? He wasn’t driving? He didn’t flee the scene?’
Du Toit had pursued Stefan Svritsky long enough to know that this was always a vulnerability. Svritsky never disclosed his defence at trial. Richard’s instructions were unfailingly the same: no admissions, no statements, no explanation of plea. The State would have to prove everything, from the most mundane fact to the essential elements of each alleged crime. Richard was not in a position to give the NPA any version of events. As a result, he could not bargain on a plea or make representations, and he could not provide the court with any guidance as to his client’s contentions. It was a strategy that had served Svritsky well in the past, but it placed his attorney in an i
nvidious position. It was in Richard’s nature to be cooperative; he enjoyed trials where he could form part of a team. He liked to be part of a gathering of legal professionals that dealt with disputes – somewhat paternalistically – between laypeople, those who did not know the law, who needed legal counsel, who might benefit from their joint deliberations and his expertise. But there was nothing like this with Svritsky. Richard was obliged to adopt the approach of a difficult, obstructive trial lawyer, forcing the hand of the State at every turn.
‘Cerissa, you know Svritsky. I can’t give you any version.’
‘Then it seems, Mr Calloway, that we have precious little to talk about. Good day.’ She turned away from him to stub out the cigarette on the outer window ledge before flicking it expertly into the bin. Richard nodded. With nothing left to say, he retreated from the office.
Although, on the face of it, the cursory interaction had been unfruitful, both Du Toit and Richard knew that the purpose of his request for a meeting had been achieved: the defence attorney had ascertained that the eyewitness had not been located and that the State appeared to be no closer to finding him. They both also knew that the State’s case was thin without the witness: there were statements from incidental policemen, from the post-mortem pathologist, from a detective who found the car licence plate where it had come loose a few hundred metres up the road. Forensic evidence linked the blood on the licence plate to that of the deceased. There were photographs of the young man’s disfigured body. The traffic department records linked the number plate to the green Ford and to Svritsky’s fleet of business-owned vehicles. This established a circumstantial case against the vehicle, but it did not constitute a sustainable case against Svritsky himself.
In order to pursue the Russian, the State was reliant on a scrawled statement, taken at the scene by a junior police officer and signed with a scribble at the bottom. The witness was identified as ‘Samora Machel’ and gave an address at ‘Maputo Street, Cape Town’. Both were manifestly false and it was testimony to the policeman’s appalling education that he had not immediately recognised the deceit. The barely legible statement suggested that the witness had seen the accident involving the distinctive Coupe and could identify the driver. Although lacking in detail, the description of the driver sounded chillingly like Svritsky. The State clearly expected that, once found, their witness would be able to distinguish Svritsky in a line-up. Richard anticipated that the man would be extremely hard to unearth and, if found, reluctant to testify.
Armed with this information, he approached his client with a forced smile. ‘Stefan, good news. They don’t have the witness. She still wants to proceed, but they don’t have him. And without him, they’ve got nothing. Anyway, she’s bluffing, I reckon. She’ll throw a plea bargain our way and when we tell her to get stuffed she’ll withdraw.’ Richard’s speech strayed towards slang when he was around the Russian, and he disliked it. ‘She has to withdraw; she’s got no case and she’s got no choice.’
Svritsky smoothed some imaginary hair on his head with his burly hand. ‘In the meantime, I still have to pay you, yes?’ he scowled, handing over an envelope of cash to make his point. ‘Fuck, it costs me money every day, this rubbish. I should just fix her. Then I can get on with my life without all this crap, you know? All the time, this crap. Why always this crap that you cannot fix? Huh?’
Richard had long since learnt not to respond to the barked questions, asked with a lifted chin and smouldering eyes.
‘And that little boy … he fuck up my car, hey,’ the Russian continued, warming to his indignation. ‘I liked that car. It is old but that V8 motor was good. It purred … it was a good ride. I liked that ride. Then he fucking walk into the way. From nowhere he comes, into my beautiful car … Bang!’ Svritsky slammed his two palms together. ‘Then I have to throw it away. Like it is a piece of rubbish. More crap. Now they want to say it’s my fault!’ He shook his head and threw his cigarette into the gutter, still burning.
Richard held up his hands in an effort to calm down his client, but Svritsky was starting to boil. ‘A few drinks I have at the club. Just driving back, minding no one’s business, yes? On my own. Then this boy jumps out into my way. Like he wants me to hit him. It is just crap. You should have seen the bonnet. I’d just paid money to polish it. Cost me fortune. Then it is all cracked, and the windscreen is in pieces and the roof all dirty with his brains and shit. Maybe we could have put it back in shape, but then I realise that the licence plate is gone. So we must dump the whole car. It burns me up. The whole car. For some idiot who can’t watch where he goes. Burns me up. All this shit. All the time. Huh?’
Richard assented with a mumble, already wrestling with the approach he would adopt to comply with his professional ethics. Knowing that his client had indeed been driving the car, had also probably been drunk when the accident happened and had certainly laid a false complaint of vehicle theft – these were not insurmountable problems, provided that he did not mislead the court during the trial. He would have to challenge each witness on the content of their evidence without putting a version to any of them, breaking the trial up into small, isolated parcels of fact, each disjointed from the next, so that when the prosecution put them together, a fractured and incoherent narrative played out. He would have to win his case through pedantic challenges to the state witnesses, ensuring that he tugged at the smallest of inconsistencies until the fabric of the whole case unravelled. It would be laborious and would incur the irritation of the bench. It was not an approach that he relished and it felt far removed from the practice of law. He sighed resignedly as he pocketed the thick folded envelope of cash in his jacket. The back of his knees itched maddeningly.
Richard’s cellphone vibrated in his suit pocket as it registered a new SMS. The phone identified his wife Amanda as the sender. He stood in the shade of a stunted plane tree while he read the lengthy note: she had a book club meeting; Raine must be in bed at a decent time; supper was in the fridge; the dogs must be fed. Richard felt a surge of irritation. The message felt like an intrusion into his rarefied business world, as if his status as breadwinner was slighted by inconsequential domestic instructions. The implication was that he needed guidance to attend to his own family’s needs. Or, perhaps, just that Amanda had enough time on her hands to tap out such comprehensive instructions.
He became increasingly aware of a stale smell as he scrolled down the message. He put the phone away and glanced down at the base of the tree. Among the scattered pieces of chip packet and cigarette butts lay a curl of drying human turd, inches from his right foot. ‘Jesus,’ he exclaimed, jumping back out of the shade into the sunlight. He looked around him, as if he expected the culprit still to be present, walking away and pulling up his trousers. An old bergie was sitting on the low wall, his arms draped over his knees like limp seaweed. He opened his mouth wide, as if he were yawning, and revealed a haphazard assortment of broken teeth. Richard did not wait to listen and quickly strode after Svritsky, trying to elude the odour that trailed after him.
The preliminary hearing was held two days later in front of regional court magistrate Mrs Shirley Abrahams. Abrahams was a middle-aged and experienced criminal-court magistrate who had handled some of the most serious trials to come to the regional court. Her standards were high and she did not adopt the same flexibility towards procedural formalities that had crept into some of her colleagues’ courtrooms. She was known for being tough on crime, but Richard was certain of her impartiality. Several years before, when she was still in the district court, she had presided over a bail hearing where Svritsky was charged with attempted murder. As Richard expected, it was the first matter to be raised in the new case.
‘Mr Calloway, as you are no doubt aware, your client is not unknown to me. I heard a bail application some time ago in case number 1043/06 in the district court. Does your client have any difficulty with me presiding in this matter?’
‘No, Your Worship, thank you. I have discussed the matter in an
ticipation with my client and we are both perfectly happy that you preside.’
Abrahams nodded briefly in acknowledgement. ‘Fine. Now, before we proceed further, I understand you have something to say?’
Richard shuffled his notes in front of him. ‘Yes, thank you, Your Worship, with the Court’s leave.’ He glanced across at his opponent. The NPA had entrusted the prosecution to a relatively junior prosecutor, Bradley Dumbela. Dumbela had risen rapidly through the ranks of the district prosecutors, impressing with his preparation, his courtroom manner and his efficiency. He was a slim, well-groomed young man, an impeccably conservative dresser who never removed his black suit-jacket and wore only a restrained choice in ties. Dumbela was watching Richard closely, his pen poised above a fresh page.
‘Yes, Your Worship,’ Richard repeated, looking up to the bench. He paused, waiting for his thoughts to clear. Once he felt his mind focus, he continued: ‘It is our submission that my client will be prejudiced in his preparation for this trial, and indeed in proceeding with this trial any further, until such time as we have clarity firstly on the identity of the witness referred to in the State’s only eyewitness statement and, secondly, on the content of that statement. Your Worship, if I may hand up a copy of those notes, Your Worship will see what I am talking about—’
‘No, Mr Calloway,’ the magistrate interrupted. ‘No, you certainly cannot start handing up statements or notes or potential exhibits. The trial has not begun. The State is dominus and may elect to call or not call whatever evidence it may have at its disposal. If the State wishes to call a witness who has not previously been identified, or whose statement you feel is insufficient, then you may object on grounds of fairness at that stage. But on what authority can you prevent the commencement of the trial altogether? It may be that the State elects not to rely on or to call such witness. Then your problem is solved. Is that not so?’
