Fraenkel’s final witness was Talifang, who Tammai had claimed had bought a medicine bottle at the same time as him:
I live at Nekate and I know Tammai well. I know the bottle Tammai had, but it is not one of the ones in court. He got his bottle in Nonga from Patsima three or four years ago. I was not present when he bought it. The mixture had hair and threepence in it and it was contained in a Vaseline bottle.
As with Matammai, Roper wanted to know how Talifang knew it was three or four years, especially when the court had been told that Basarwa could not count days:
This is the fourth year because we have ploughed three times since. I am Masarwa and, although we do not count days exactly, we know the seasons.
After asking whether Talifang had discussed the case with anyone, Roper turned back to the bottle and its contents:
I have not discussed the case with anybody, including Mamorobe. Patsima had a big bottle of fat, this is where the fat in Tammai’s came from. I can now see the bottles here in the court, one of those bottles is mine. The bottle with sixpence in was Rekisang’s and the one with thre’pence was Tammai’s. The hair in the bottle was definitely European and white. I know because I have seen it on their heads. There was red medicine in the bottle too. The whole mixture was watery enough to see the hair was white, even in the bottle.
I had my bottle for three years and Tammai bought his from Patsima at the same time. I kept my bottle in Matammai’s basket and Tammai kept his in a pair of socks at Mamorobe’s. Matammai never kept Tammai’s bottle, it was always with Mamorobe.
The final question of the defence witnesses was asked by Mackenzie, the District Commissioner. This was to shed light on whether Talifang was actually present when Tammai bought his bottle:
I was in Nonga when Tammai bought his bottle, but I was not present because I was at the Kgotla. Tammai put the money in the bottle himself.
Although technically Talifang was the last defence witness, Fraenkel took the opportunity to recall Sergeant Preston-Whyte in order to cast doubt on Keree’s testimony. This was despite the fact that Fraenkel was Keree’s attorney.
Witness – Sergeant Robert Preston-Whyte
Preston-Whyte was asked about the well where Keree had suggested the remains had been hidden:
We searched the well thoroughly. It is about two hundred yards from the campsite at Kuaxaxa and it is about fifteen feet deep. We had to remove sediment before we collected more water from the well. We did not find any human remains.
And with this last piece of evidence the defence rested their case and lunch was taken, ready for the start of the summing-up in the afternoon.
SUMMARY OF THE CASE
FOR THE PROSECUTION
The Attorney General decided to split his summing-up into two distinct parts, choosing to deal with the five women accused before moving onto the men who were at the centre of the alleged crime.
Roper started by stating that, with the exception of Temee’s evidence, all the witnesses placed the women in their shelters at the time of the discussion between Twai Twai and Tammai, when the murder of the airmen was decided. This meant that the only evidence against the five was that they had helped dispose of the bodies. In view of this, Roper asked for a verdict of being accessories after the fact to the murder.
All of the five had made statements in Francistown that corroborated the prosecution case and Roper now presented examples of these to the court. Bene, the fourth accused, had described how she had arrived at Kuaxaxa on the day the search party left to look for the aeroplane and how this party had returned to the campsite with two white men. During that night, she was woken by the sound of rifle shots and was too afraid to go and look, but was told that the white men were dead and that she had to help carry the bodies. Her statement then went on to describe how the bodies were burnt and how the possessions were shared out. Finally, she told of how the dress, water container, and axe that Tammai had kept were hidden when the police arrived at Nekate. The other four had told very similar stories, although the details were not read out in court.
Next, Roper turned to the point of culpability. The main issue here was whether the women had acted under compulsion. The Attorney General’s claim was that while the women were told to move the bodies, they were not threatened into doing so. This led to a discussion of where this stood in contemporary law. Roper claimed that marital compulsion did not apply to the case, as none of the accused were formally married and that customary marriage should not count. The judge, de Beer, disagreed with this point and also suggested to Roper that a command by a chief, holding power of life and death, was sufficient excuse and likened this to a soldier acting under orders. The Attorney General claimed this was not relevant and, without a specific threat attached, a simple request to move the bodies was not sufficient reason to absolve the accused.
The judge then used Captain Langley’s evidence that ‘these people are in a wild and semi-nomadic state … where the men have considerable power over the women; that they beat them for disobedience; and that orders were implicitly obeyed’ to suggest that an active threat did indeed exist. Roper responded by pointing out that the latter points applied, perhaps to a lesser extent, to European women and that ‘One hears of wife beating … it has not died out in all classes of society’, but this does not excuse the women. He argued that the law must be applied consistently across society and that none of the women had claimed to feel threatened when they gave their evidence. Not even Autwa, who was customarily married to Keree, had claimed any compulsion from her husband.
Having dealt with the women, Roper now moved onto the main accused, Twai Twai, Tammai and the dreamer, Keree. The Attorney General began by outlining the prosecution case against the three men and where the evidence against them had come from.
Starting with Temee and Toi Toi’s evidence describing the search party and the finding of the missing airmen, through Rekisang’s, Morobe’s and Kico’s recounting of the airmen returning to the camp and being offered the giraffe meat, to the recalling of the conversation where Twai Twai and Tammai discussed the killing of the missing pilots, Roper gave a clear account of who had said what and reminded the court that giraffe were considered royal game.
Before moving onto the actual murders, Roper looked at possible motives. He pointed out that while the only motive to come out in evidence was the covering up of the illegal giraffe hunting, there were other possible reasons. Roper suggested the airmen may have been killed for their belongings, their money or for muti or medicine. He claimed that in crimes of this sort there is rarely a single motive, but rather a combination of several.
Returning to the actual crime, the Attorney General then walked the court through the killings as described by Temee, Rekisang, Morobe, Toi Toi and Kico, admitting that there was some discrepancy over which body was finished off with the axe. Morobe and Kico had told the court it was the tall man, but the other witnesses had said that it was the shorter man who had survived the initial gunshot and was struggling on the floor until the axe fell. Roper retold the burning of the bodies and suggested that only Kico, Rekisang and Morobe had told of the rendering down of the fat taken from the bodies, as the younger members of the group were attending to the donkeys at the time.
Turning to the evidence of the main accused, Roper pointed out that it simply consisted of a flat denial of the events described in court and a claim that the prosecution evidence was nothing more than fabrication. Given this accusation, Roper then went through his witnesses looking for possible reasons for them giving false evidence.
The brothers Temee and Toi Toi were the first to be considered, with Roper explaining that they were related to Twai Twai and Tammai as well as Chenda, who was their sister. The boys were on good terms with the accused and there was nothing to suggest their evidence was influenced by ill-will.
Kico and Morobe were also dealt with briefly, before Roper turned to Rekisang, who Tammai and Twai Twai had both accused of lying because of the treatment her mother ha
d received from the two men. Roper suggested to the court that if this hatred existed then it would have been unlikely that Rekisang would have been invited on the hunting trip. He also tried to suggest that Rekisang had claimed not to see blood on the clothes in order to minimise her part in the murder, perhaps subconsciously as she had made no bones over carrying the hair and fat back from the fire. Roper also admitted it was likely that Rekisang had discussed what had happened with others, probably including Kico, as most witnesses to an event like this would. This did not mean she had tried to influence Kico’s evidence.
The biggest problem in the prosecution case was the inconsistency in small details and it was this Roper addressed next. While admitting discrepancies in the descriptions of the pilots’ clothing, Roper offered a suggestion that the pilots could well have taken peaked caps with them to protect them against the sun, especially given the heavily glazed cockpit of the Oxford. The different description around details of the murder, such as who had carried what, could be explained by the extreme circumstances, claimed the Attorney General. Indeed, when people had been woken in the middle of a moonless night by gunshots and had found a shocking murder had been committed, it would have been very extraordinary if there had been no discrepancies.
Roper then moved onto what had happened to the possessions of the airmen, starting with the axe that was missing from the aeroplane. He pointed out the descriptions of the axe matched the type that was missing and that most of the witnesses claimed Tammai had taken possession of it. Awekeca had seen this axe in Tammai’s skin bag, before later seeing it hidden in the rafters. It was unlikely that she would confuse this unusual axe with the differently shaped adze. Roper then cast doubt on Matammai’s evidence, recalling how she had claimed the bag was empty before changing her mind in the next sentence. He also found it suspicious that Matammai would remember a specific occasion of looking for tobacco when she would have done this on a regular basis. He also pointed out that Matammai had originally claimed to have seen the axe and that when the police came she said it had been given to Letsami, Twai Twai’s brother, for safe keeping.
The water container that was missing was Roper’s next problem as the witnesses had not described the missing large cylindrical object with any accuracy. The Attorney General put forward the idea that the container may have been removed from the aircraft after the murder and that the airmen had said in their logbook note that they had ‘little water’. Roper’s idea was that they would have taken what water they had with them, but that they might have used personal water containers to do this.
The parachute was dealt with next, with Roper emphasising that at least some of it had ended up as a dress for Chenda before it was hidden when the police came. The watch Toi Toi had claimed to have seen Tammai with must have come from the airmen as they had left an exact time on their note. The money Rekisang had was clearly not from her husband, Roper said, for if her husband had given her such money she surely would have bought a dress rather than using it to give false evidence. The fact that her currency matched that of the Rhodesian coins in the pots of fat was strong corroboration of the prosecution’s tale.
It was then pointed out that none of the witnesses had described the Very pistol or the compass and that these were also missing from the aircraft. Roper took this to support his theory that somebody had been to the aircraft during the month it sat on the pan and taken anything of value, including the water container.
The Attorney General then returned to the jars of fat, referring to the fact that the lab report confirmed the presence of animal, possibly human, fat mixed with other substances. He then rubbished the defence witnesses’ explanations as to where these jars had originated from. Matammai saying the bottle was empty and nothing but Vaseline was added, but changing her story later to say the hair and coin had been there all along. Talfang’s evidence had been ‘contradictory’ and ‘confused’, especially the fact that she could tell the colour of the hair inside the bottle, despite the fact the Vaseline in her bottle was supposedly red.
Roper then provided a possible explanation for the lack of bones, inferring that Twai Twai and Tammai had opportunity to dispose of them, both after the women returned to camp when the bodies had been burnt and the men had returned a short time later, and also when the two men had separated from the group returning to Kombe for several hours to ‘go hunting’.
Twai Twai and Tammai’s evidence was then considered in detail, with Roper casting doubt on not only their denials but also picking up on the inconsistencies. One of the main areas was around the timing of the finding of the plane, with Twai Twai and Tammai having told the court it had been there a long time, yet this was impossible, even though it would account for the lack of spoor. The fact they had been in the area and not heard the plane was also odd, Roper thought.
Roper finished his summing-up of these two witnesses by putting it to judge de Beer that the prosecution witnesses were consistent in their story and they had no reason to lie. If the court was convinced the airmen had reached the campsite then the rest of the case followed. Justice de Beer then pointed out that this simply reduced the case to a question of the credibility of the two sides. The Attorney General agreed this was so.
Finally, Roper assessed the final male defendant, the decidedly odd Keree. He pointed out the similarities in Keree’s rambling statement and the prosecution case and puts it to the court that Keree had wanted to give King’s Evidence and so gave an incomplete account that minimised his role. Keree, Roper asserted, was present at the murder even if he did not take part in the attack – perhaps due to the fact there were only two guns.
His final summation was:
For all of these reasons I submit, my Lord, that the Crown has proved its case against not only against the five women accused of being accessories after the fact of this murder, but also against Nos. 1, 2, and 3 accused that they actually carried it out, and if Keree did not take a share in the killing of the deceased he was at least an accessory after the fact.
SUMMARY OF THE CASE SUMMARY OF THE CASE FOR THE DEFENCE: KELLY
With his clients now facing the lesser charge of ‘accessory after the fact’, Kelly was given the first opportunity to speak for the defence and for the five women whose future depended on his presentation. At the end of a long week, a hot and dusty Friday afternoon is perhaps not what the lawyer would have wished for.
Kelly had been placed in a difficult position by his clients’ statements in the Francistown hearing, for they effectively were a confession to the crime they were now accused of. As Roper had stressed during his summing-up, these statements confirmed all the main points of the prosecution case. To ensure the court was aware of the limitations this imposed on his defence, Kelly read from Gardiner and Lansdown (Criminal Law and Procedure, volume 1, page 230 – this book was effectively the bible of criminal law in South Africa), outlining that ethically he could only argue that there was insufficient evidence for a conviction or take advantage of any exception which might relieve the accused from criminal responsibility.
Kelly’s first argument was a simple one, as Roper had admitted that the only charge his clients could face was accessories after the fact of murder. If there was insufficient evidence to convict the men of murder then it would be impossible to charge the women. His second, and slightly contradictory argument, was that while there was evidence that the women had helped move the bodies and brought firewood to help remove traces of the crime, the charge of accessories was the most they could face. He then used the case of Rex v. Mloi as an example of where a native had helped to dispose of a murder victim, but had been excused completely.
The next argument employed was that of coercion. Kelly referred to the earlier description of the Basarwa as ‘rude, semi-nomadic, uncivilised’ and claimed that womenfolk of such races are subject to the whims and orders of not only their husbands but of men in general. At this point Justice de Beer asked if Kelly thought a specific threat needed to be made. Kelly ad
vanced the idea that the fear of reprisal was there, even without a further threat. Furthermore, this threat of reprisal was covered by law, as according to Gardiner and Lansdown the coerced party does not need to be married but just to have a domestic relationship in order to diminish responsibility. Kelly contended that the extended family relationships of the hunting party constituted such a situation. Morobe’s evidence that the women were ‘ordered’ to help and, according to Rekisang, Keree was also told to carry the bodies, was evidence of coercion. The fact that Keree, a man, was forced to help, showed how much more pressure would be upon the women, Kelly asked.
Kelly finished his submission by conceding that his clients had confessed to the crime, but that they were acting under orders and were being coerced, even if they were not verbally threatened. This should be taken into account when punishment was dispensed. Kelly suggested that the nine months the women had spent in gaol was already sufficient penalty if the defendants were found guilty.
As Kelly rested his defence, the Attorney General rose to his feet and raised a point of law. Using page eighty of Gardiner and Lansdown as a guide, Roper reasoned that while the presence of a husband could imply a threat and reduce complicity, it did not completely excuse a woman of her actions. Using Rex v. Kybers, a case from the Orange Free State, de Beer stated that the presence of a husband could indeed constitute a threat, and that this threat was magnified in a primitive society where a woman could be expected to be chastised if she did not comply with her husband. Kelly ended this discussion by pointing out that there was not just the presence of the males, but that there were definite orders given.
SUMMARY OF THE CASE FOR THE DEFENCE: FRAENKEL
The Kalahari Killings Page 15
