Refuge

by Andrew Brown

  ‘What? For fuck’s sake! Did he say why?’ Richard was immediately running through his appointments for the day in his mind. An unscheduled day in court would cause havoc with his diary. ‘Did Dumbela explain what’s going on?’ He knew that this was a pointless question. The prosecutor would never have volunteered such information and Nadine would not have asked.

  ‘No. Just said that it was serious. He wants to hear from you urgently,’ she said. Richard heard her tapping on the computer keyboard. ‘I’ve shifted your morning appointments around. Mrs Heath will come in tomorrow. Lionel Jowdry has moved his to this afternoon.’

  ‘Ja, good … Thanks.’

  ‘I haven’t phoned the Russian,’ she said, ringing off.

  ‘Of course not,’ he said out loud to himself.

  He called up Svritsky’s number on his phone and pressed the dial button. His client sounded half-asleep, his voice groggy and slurred. But he soon woke up when he heard that the State wanted to revoke his bail.

  ‘They just try to fuck me around, Richard,’ Svritsky boomed. ‘Nothing has happened. You tell them to fuck off and leave me alone, okay? I’m not coming to court. This is rubbish. Tell them I say that.’

  ‘Don’t be ridiculous, Stefan,’ Richard countered. ‘You’re on bail and they call the shots on this one. If you’re not there, they’ll issue a warrant for you. Then no one’s going to get you back out.’ His phone vibrated again, registering a waiting call from Dumbela. ‘Look, the prosecutor is trying to get hold of me. Just be at court. Leave now.’ As he accepted the second call he heard the beginnings of an expletive before the phone cut Svritsky off.

  ‘Bradley, what the hell is this about revoking my client’s bail?’ The adrenaline made Richard abrupt.

  ‘Your client has intimidated one of the witnesses.’ Dumbela was no less abrasive. ‘If he’s not in court by nine o’clock this morning, I’m going to ask Magistrate Abrahams to revoke his bail and the police will pick him up. Make sure he’s there.’ The call went dead before Richard could respond.

  He glared out at the trundling traffic, furious at the turn of events. ‘What the fuck have you done now, Svritsky?’ His voice sounded hollow and tinny in the enclosed space of the car. He leant forward and punched the power button on the radio, bouncing his left leg impatiently on the clutch as the car jerked along.

  Magistrate Shirley Abrahams gave Richard a stern look from the bench when he walked into court, Svritsky at his side. They were ten minutes late and Abrahams had started with the postponements on her roll. She waited for them to sit down before pointedly asking Dumbela to continue with his roll. The prosecutor gave Richard a thin smile before calling his next matter. The postponements took another half-hour, during which time Svritsky hissed and sucked next to Richard like an over-pressured steam engine.

  Finally the postponements came to an end and Abrahams beckoned to Richard. He picked up his briefcase and made his way to the defence table.

  ‘Mr Svritsky, in the dock please.’ Abrahams held up her hand to stop Dumbela proceeding while she waited for Svritsky to labour his way into position. The Russian sighed heavily as he sat down.

  Dumbela stood up and announced the case. Richard rose to place himself on record but the magistrate was quick off the mark. ‘Yes, yes, Mr Calloway. You’re on record already. All as before. Now, what’s this about? Are you bringing an application?’

  Richard shook his head and pointed his chin in Dumbela’s direction. He sat down once Abrahams had turned her attention to the prosecutor.

  ‘Your Worship,’ Dumbela began, ‘the State is bringing an application in terms of Section 68 of the Criminal Procedure Act for the cancellation of the accused’s bail on grounds that he has threatened a material witness, or has caused others to threaten such witness, to the extent that the witness has broken off contact with the investigating officer and his whereabouts are now no longer known.’

  ‘I see,’ Abrahams said, carefully writing down some notes. The court waited in silence until she was finished. ‘And the evidence to be tendered?’ Although the question was addressed towards the prosecutor, Richard was aware that she was now staring directly at Svritsky.

  ‘I shall be calling the investigating officer.’

  Richard half-rose to interrupt the proceedings, but Abrahams glared at him before saying: ‘Right then, let’s proceed, shall we? You’ll need to satisfy me on urgency and the necessity for a full withdrawal of bail, Mr Dumbela. But you may call your witness. Let’s hear what he has to say.’

  The investigating officer, Captain Riedwaan Faizal, swaggered to the front, stepping up into the witness box and closing the low swing-door behind him. He looked disdainfully across at Richard before smoothing his zipped leather jacket and adjusting the obvious bulge of a firearm on his hip. His performance brimmed with aggression, and Richard felt his resolve tighten. There could be only one victor.

  Abrahams administered the oath, and Faizal raised his right hand almost defiantly. He stood to attention as the prosecutor started his examination. Yes, he was a captain in the police force. Yes, he was the investigating officer in the case against Svritsky. Yes, he was intimately involved in every aspect of the investigation. The questions were standard, but Faizal answered with contrived seriousness, his voice booming across the courtroom. Richard thought he could detect the scent of his Old Spice aftershave.

  ‘Now, Captain, can you please tell us why we are here today?’ Dumbela asked. Behind him, Richard heard Svritsky snort. Faizal turned and stared at him, before giving his evidence to the bench.

  ‘Your Worship, Mr David Matsuku is a car guard who worked outside a club that is owned by the accused. The club is situated at the bottom of Loop Street in the city centre. Mr Matsuku provided me with a statement in the investigation. Mr Matsuku identified the accused …’ – Faizal paused and turned again to Svritsky, as if to make sure that he was still the right man – ‘getting into a motor vehicle, a green Ford, just shortly before the accident occurred. Mr Matsuku is a material witness in the State’s case, particularly as the accused alleges that the motor vehicle we believe caused the accident and the death of the deceased had in fact been stolen earlier that day.’

  ‘Yes,’ Dumbela nodded, encouraging his witness to continue.

  Faizal rocked slightly on his feet, squaring his shoulders before continuing: ‘Mr Matsuku was initially reluctant because of his fear of the accused. But we managed to find him another area to work in and he agreed to give us a statement.’ He stopped and looked at Svritsky. Richard held his breath, sure that his client was making some inappropriate gesture and that the magistrate would notice. But Abrahams was writing notes and did not look up.

  ‘Your Worship,’ Faizal continued, ‘we have reason to believe that over the weekend Mr Matsuku was visited by the accused. On Saturday night, the accused was seen parking his car in the area where Mr Matsuku now works as a car guard. We are not aware of any reason for the accused to be in that area. He does not work or reside in that area. Yesterday I went to find the witness, Mr Matsuku. I was informed by his associates who work the same street that he has left. They told me that they do not know where he is.’ Faizal was looking straight ahead into space, reciting his monologue in even, clipped phrases. Richard had to concede that he presented the evidence well.

  ‘When I asked them why, they informed me that a man had threatened him on Saturday night. The description of that man matches the features of the accused. We accordingly believe that the accused has broken his bail conditions. Your Worship, we believe that the accused has approached a witness and has threatened that witness directly, causing him to flee. We cannot rule out the possibility that the witness has been harmed—’

  ‘Objection, Your Worship.’ Richard was on his feet. He had anticipated an attempt by Faizal to slip in a statement like this. ‘Good grief, this is pure speculation,’ he said in an exasperated tone. ‘A policeman of this witness’s experience should know better than to try this kind of trick.
’

  Abrahams turned a cold eye towards him. ‘And Mr Calloway, you should also know that this judicial officer is far too experienced to take note of such a statement. So please, keep the melodrama for someone else’s court.’ She sighed and gestured to Faizal to continue.

  ‘Thank you, Your Worship,’ Faizal said, his mouth set in a thin smirk. Abrahams did not bother to react to his attempt to ingratiate himself, but Richard still seethed.

  ‘Your Worship, we also have reason to believe that the accused is actively seeking out the identity of the main eyewitness to the fatal incident. We have discovered that the accused, or his associates, have been actively questioning the car guards and the informal traders. They have been attempting to ascertain the identity and whereabouts of the witness. We are concerned by this. Given what has happened to the witness Matsuku. We are concerned that, should the accused learn the identity of this witness, he too will be intimidated and will refuse to give evidence.’ He stopped and looked Richard straight in the eye before adding, almost under his breath: ‘Or worse.’

  Richard huffed in frustration; there was nothing he could do.

  ‘Does the State still not have the location of the eyewitness?’ Abrahams asked. ‘With less than a week to go before trial?’ She was clearly irritated and had stopped writing, squinting at Faizal instead.

  ‘No, ma’am … Your Worship, I mean.’ Faizal maintained his bombastic attitude, puffing his chest. ‘We believe that we know who the witness is. We are confident that within the next day or two we will be able to locate him. We are working hard on this, Your Worship. My men understand the critical importance of this witness.’ The suggestion of a phalanx of tough men working under Faizal’s control seemed to placate Abrahams.

  Richard rose and prepared to cross-examine. ‘Captain Faizal.’ He smiled encouragingly. ‘Can you just clarify for me, is this application brought under Section 68 (1) or Section 68 (2)?’

  He heard Dumbela’s chair clatter as the man jumped to his feet to object. But as Richard had hoped, Faizal was keen to impress and started to answer the question before Dumbela could intervene. ‘Well, Mr Calloway, I think it would be clear to you that since we are all here in court, together with your client, then it is an application under Section 68 (1) for the cancellation of your client’s bail due to his interference with a state witness.’ Faizal’s sneer revealed the tips of his teeth. Dumbela settled back into his chair, seemingly satisfied with his witness’s answer.

  ‘Yes,’ Richard responded, still smiling, ‘that’s what I had thought. But listening to your evidence now, it started to sound as if in fact you were relying on Sub-section (2).’

  Faizal’s face darkened, but he said nothing.

  ‘You see, Captain, Sub-section (1) …’ Richard paused and picked up his copy of the Act, extending the moment by pretending to search for the passage. ‘Yes, here it is: the sub-section requires that the prosecution tender “information under oath” and the evidence here—’

  ‘Well, Mr Calloway, are you suggesting that I’ve done something else? That is precisely what I have given this morning: information under oath.’ Faizal looked up at Abrahams with a pained expression.

  ‘No, I don’t think so …’ Richard knew that his response was argumentative. Legal representatives weren’t supposed to debate the law with witnesses. He was not surprised to hear Abrahams clear her throat. ‘Sorry, Your Worship, I am getting to the point,’ he countered, looking up at the bench. She returned his look sourly, tapping her pen on the page in front of her.

  ‘Captain, the point is simply this: Sub-section (1) requires “information under oath”, which can only be understood to mean direct evidence of the facts relied upon. It cannot mean anything else. And in fact a recent judgment from the Cape High Court confirms this obvious fact.’ He paused again, picking up a photocopy that he had asked Nadine to make. The photocopy of the case was the reason they had been late, but he had not wanted to explain this to Abrahams; otherwise he would have been required to give Dumbela a copy in advance. The relevant portion was highlighted in yellow translucent ink.

  Richard made a show of reading the document, pointing at the relevant phrases as if alighting upon them for the first time: ‘Acting Judge Salie stated quite clearly in his judgment that Sub-section (1) requires “direct evidence”, while only Sub-section (2) can be used where the investigating officer relies on his “reason to believe”. Now, as you correctly say, Captain, this application is necessarily brought under the first sub-section.’

  Faizal had flushed with anger and was leaning forward in the witness box.

  Abrahams picked up her pen. ‘Citation of that case, Mr Calloway, please.’

  Richard gave her the citation slowly and then handed extra copies to the orderly to pass on to her and Dumbela. She scanned the case for a few minutes and he waited. When she nodded he continued: ‘Captain, do you have any direct evidence … in other words, evidence of facts that you are personally able to testify to before this court? Do you have such evidence to tender? Because, sir, I must put it to you that you have tendered no such evidence thus far. We have not heard evidence from anyone who saw, heard, talked to or identified my client in any way whatsoever. All we have had this morning is your conjecture as to what might have happened, an insipid concoction of hearsay and speculation.’ Richard was pleased with his lucidity and thought he saw Abrahams purse her lips in a restrained smile, but it could just as easily have been a grimace.

  Faizal’s mask slipped. ‘Your client has intimidated a witness,’ he growled from the witness box, hunching his shoulders forward. ‘He may even have had him killed for all I know. I worked bloody hard to get that witness to talk to us. He was terrified of your client, terrified. Your client is nothing but a gangster, Mr Calloway. A bloody gangster.’ Abrahams now tapped her pen unhappily on her desk, glaring icily at Faizal. His indiscretion would mark him for ever in her court.

  But before the moment was lost by her intervention, Richard followed up: ‘Yes, Captain, we hear what you say. But you see, that is really the sum total of your evidence in this application: your view that my client is a gangster. And, with respect, sir, your personal view is simply not good enough.’

  Richard looked up at Abrahams in triumph. Despite the fact that Dumbela had not yet had a chance to re-examine the witness, he seized the opportunity: ‘Your Worship, I ask that the application be rejected. On the basis of Judge Salie’s decision, there is simply no merit in this application and the State’s request must fail.’

  Abrahams turned to Dumbela. ‘Do you wish to ask this witness anything in re-examination, Mr Dumbela?’ The emphasis made it quite clear that she did not expect him to resurrect his application. He acquiesced and remained seated. ‘I take it you have no further evidence at this time?’ she asked. Dumbela shook his head dejectedly. ‘Right then: application for cancellation of bail is not granted. Mr Calloway, your client remains on bail on the same conditions as before. I will see you all again at trial. Good day.’

  Faizal pushed the swing door open with a clang and stormed out of court without looking at Richard again. A resigned Dumbela called the next case while Richard packed up his documents and also headed for the door. He was boyishly pleased with himself, feeling the familiar exhilaration of victory returning. But instead of acknowledging Richard’s efforts, Svritsky was contemptuous of the State’s attempt to deprive him of his freedom. He dismissed the application as ‘fucking nonsense’, making sure that all could hear as they walked along the passage towards the lifts.

  Richard was annoyed to see Max Bernberg, a fellow criminal lawyer, waiting in the lift. Bernberg’s victories in the courtroom were a source of envy to most of the legal fraternity and he was a prodigious braggart. ‘Interesting case, Richard?’ Bernberg’s rotund face was perspiring.

  ‘Just the usual resounding successes, Max,’ Richard replied. His competitor grunted but made no effort to continue the exchange. He bundled out of the lift as soon as it reached
the ground floor, as if on urgent business.

  Svritsky lit up a cigarette even before they had exited the court building. He offered one to Richard, although he knew that his lawyer did not smoke. As they turned to walk to the parking area, a white Volkswagen Polo drove slowly past. The hard-faced driver watched them closely. Faizal was sitting in the passenger seat, talking on his cellphone, no doubt informing Du Toit of the bad news.

  ‘Pigs!’ Svritsky shouted, pushing his grubby middle finger into the air. The car slowed further, then pulled off and turned the corner. A court reporter, lazily sunning himself against a parking meter, took out a notebook and scribbled something down.

  ‘C’mon, Stefan.’ Richard said, concerned that his client’s antics would attract bad publicity. The Quantal deal loomed large in his thoughts. ‘I know you think that was easy, but I promise you, next time they’ll get their act together. If they get evidence from people who saw you intimidating a witness, you’ll spend the whole trial in jail. Just remember your bail conditions and stay away from all the witnesses. All of them, okay?’

  ‘What, you do not trust me?’ Svritsky said, feigning hurt. ‘My own lawyer, he does not trust me? My God, what is the world coming to?’ The plaintive expression turned into a dark scowl, and he gripped Richard’s arm, the red nipples of his tattoo pointing at the lawyer like two fire-points. ‘You worry about your job, my friend. I will worry about mine. Then we have no worries, okay?’ He stubbed out his cigarette with his shoe, swivelled around and headed for his car.

  Richard was pleased to see the back of his client. Despite Svritsky’s acidity, Richard still retained the excitement of the win. It made him feel reckless and young, a master of his boundaried universe for the moment.

  As if sensing his captured virility, his cellphone beeped with an SMS: ‘I am free now. Wd like to see u again. A.’

  Richard climbed into his car, starting the engine and flooding the interior with cool air from the air conditioner. ‘Just what the doctor ordered!’ he replied, punching in the letters spontaneously, but checking his spelling before pressing the ‘send’ button.