These people.
‘But Judge, I have an alibi for the whole day.’
‘Oh, and your witness has a calendar, does he? Or is it the accused’s wife or mother?’
The judges bullied the prosecutors too.
‘It happened at a party, for God’s sake, man. There must be ECs. Go and draw a statement of agreed facts. And put the ECs in it.’
We fought mostly over the presence or absence of extenuating circumstances. Their absence meant a death sentence, their presence a reprieve. On the defence side we looked desperately for the slightest provocation or evidence of alcohol or cannabis, and we often presented a single beer or a puff at the pipe as an intoxicated stupor that had dispossessed our client of the understanding and control that would ordinarily have attended his actions. Our friends the prosecutors, on the other hand, looked for premeditation, concerted action and lack of remorse. Some we won, some they did.
Yet I cut my teeth on these cases; they were the best training school for those who were newly admitted. Apart from divorce and personal injury cases, murder was all we got as newly admitted members of the Bar. We needed the money badly, even though it was only thirty rand per day, and we needed the experience even more.
When I was no longer obliged to accept capital cases on the pro Deo system, I stopped doing criminal cases altogether, and now I was going to have to explain to my wife why I had accepted this one. I had no clear answer for myself either. I had secretly hoped that Leon Labuschagne would send me packing and that the Judge President would say, ‘Well, if he doesn’t want counsel, that is his right.’
Palace of Justice
8
When I returned to Pretoria for the trial, I went for a run up one of the many hills as soon as we had checked into the hotel that would be our base during the trial. The overwhelming smell of the city was that of the sweet flowers of the jacaranda tree, the oily muck of millions of flowers crushed under feet and wheels. It was October and we were as prepared for the trial as we would ever be, although we could, of course, never be sure that we knew everything we needed to. Every trial is virtually guaranteed to produce surprises for the participants, but for now I was content that we had prepared as well as could be expected.
I ran up to the Union Buildings, the seat of the executive branch of government since 1910. As I bounded up the last few steps to the top plateau in front of the building, it struck me that this was where the Cabinet met twice a week to consider, amongst other matters, who should hang and who should come off the rope. ‘We refer to those who are under sentence of death as being on the rope,’ Labuschagne had told us. ‘When they receive clemency or when their sentences are set aside on appeal, we say that they have come off the rope.’
We also learned that the language of the prison was Afrikaans. The Afrikaans has a much better resonance to it: Aan die tou. Van die tou af.
In Maximum the rope dominates everything.
The windows of the Union Buildings were dark. I turned to look back over the city, over the sprawling lawns where the late Sunday strollers and picnickers still enjoying the last of the weekend were beginning to leave. I leaned against the stone wall to stretch my calf muscles.
Pretoria is also a city of history. The defeat of the British in the first Anglo-Boer War had been organised from here. By the time of the second Anglo-Boer War the British were better prepared. This time they were able to occupy Pretoria long before the war finally ended in 1902. Then they took control and imposed the British model of government on every institution.
I couldn’t say that I had ever been comfortable in Pretoria. On the one hand, it was the symbol of resistance to British imperialism, but on the other, of apartheid repression. It was equally representative of clear African skies as it was of secretive State organs working away behind the scenes. The city’s overwhelming impression was that of rigidy, in thought and in structure. Even the city blocks were all of the same dimensions, and the main street, Church Street, is proudly said to be the longest straight main street in the world. Pretoria was the bastion of Afrikanerdom, yet so English in its buildings and institutions and attitudes. Thousands of its inhabitants were employed in the Civil Service, that huge monster that implemented government policy by keeping its foot on the neck of every citizen.
This was a place where others told you what to do, and how and when to do it, the seat of executive Government.
The building behind me had been designed by Sir Herbert Baker. I was standing on Sir Herbert’s parapet. I could see Magazine Hill in the distance to the south, with Maximum Security Prison nestled at its foot and row upon row of the shiny roofs of Central Prison lower down. The Voortrekker Monument stood squat on its own hill behind the reservoir at the apex of Magazine Hill. When my eyes found Maximum, the hanging tables Pierre had uncovered during our preparation appeared uninvited in my mind’s eye. I remembered, for no logical reason I can think of, that the drop for my weight would be exactly six feet, calculated in imperial measures in the table. It had struck me that I was the template for the formula in the table: Thus a person weighing 140 pounds in his clothing will require a drop of 840 divided by 140 = 6 feet.
As I jogged back to the hotel I reviewed our preparation.
We had taken an early decision to divide the work. Wierda and Pierre were to investigate the facts of the case and Roshnee and I would be responsible for their analysis. We did all of this in secret; Wierda was, to all appearances, the defence team in its entirety. He communicated with the police, the prosecution and the prison authorities. He paid visits to the prosecutors at the Attorney-General’s office and liaised with the junior prosecutor, a sharp but stern woman who gave no quarter and reported to a senior who was older and more experienced, and less intense. Wierda reported them to be polite and competent but a tough team. The woman was the brains behind the prosecution, Wierda reported to me, but the senior was likely to do the talking in court.
Our arrangement worked well. Wierda elicited more information from our client and the prosecutors each week and as Roshnee and I received and analysed the new information we sent suggestions to the two in Pretoria about new lines of enquiry. In ways never disclosed to us Pierre obtained confidential, perhaps even secret, information and documents from government files. We did not need to know, he said enigmatically.
Wierda and I pulled a shroud of secrecy over our preparation. We applied as best we could the only tactics available to us: preparation and ambush.
A picture of a warder’s work in Maximum Security Prison emerged during our months of preparation, though I am not sure that we ever got the full picture from anyone, not even from our client. In fact, we were most suspicious of any information emanating from him. He had, after all, the most obvious of reasons to lie: if you don’t lie in the face of a death sentence, then I don’t know what circumstances could ever force a lie from you.
Roshnee had found a forensic psychologist who was prepared to give evidence for the defence. I had to travel to Johannesburg to meet her at Wits University. Dr Schlebusch – ‘Call me Marianne, please’ – said that she did not have the expertise to deal with all aspects of the defence and that we should look abroad for cover. She referred us to an American psychiatrist, a Professor Shapiro from UCLA. While Marianne was prepared to provide her services for free, the American demanded a first-class air ticket, a five-star hotel and all expenses paid. So we had to raise the funds for a very expensive flight across America and then across the Atlantic, plus the hotel and other costs.
Roshnee somehow managed to persuade Lawyers for Human Rights to provide the funds. They, in turn, must have got the money from their secret foreign supporters. How she came by that piece of information, I couldn’t say, but according to Roshnee, the money had come from Denmark.
The law books were a problem. We needed to find a legal pigeonhole for the defence we wanted to raise, but the law books painted a bleak picture. In case after case we found that the defence we were planning to present ha
d been rejected for lack of evidence. There was resistance to it, not only from the courts but even more so perhaps from the psychiatric profession.
As we worked on the case new avenues of investigation opened up for us as a result of the directions given to us by our expert witnesses. We had to achieve two goals: find out everything we could about our client’s circumstances at work and as much as possible about what had happened in the prison during the last two weeks or so immediately preceding the events at the reservoir. The experts would in due course perform their standard psychometric tests and evaluations before they would give their final reports, but they needed this information as background material.
We gave Wierda the difficult task of speaking to Labuschagne’s relatives and acquaintances in order to build up a convincing picture of his past. Wierda spoke Afrikaans; he was one of them, but they were less than forthcoming, to say the least. Sometimes it felt as if the entire city had conspired to obstruct us. It was far from easy to obtain what we needed. It took time and it took effort. And all along, each of us had our own practice to run and our personal lives to live. But overall, we succeeded in keeping our preparations and plans secret. Our defence was a difficult one, one that did not succeed often, but we were going to be able to spring it as a surprise.
Eventually we felt that we were as ready for the trial as we could ever hope to be, given the circumstances. It was unlikely that the prosecution would have any surprises for us. From their names and job descriptions in the List of Witnesses we could work out what the prosecution witnesses would say. However, the reverse, on the side of the defence, was not going to be so easy – that much we knew. If there were going to be surprises, they would be lurking in the defence case.
Wierda and I had carefully spun a spiderweb of facts and circumstances that would enable us to argue for an acquittal, with each strand of the web strong enough to support the weight it was expected to bear and the web a unit impenetrable to all but the insignificantly small and the overwhelmingly powerful. Every strand of it had to be in balance with every other strand, otherwise weaknesses would make our whole case fall apart.
A week before the trial was due to start Roshnee suggested that it might be useful to know something about the men who had been hanged in those last two weeks before the shooting at the reservoir, and about our client’s relationship with them. This would add another strand to our web.
We sent Pierre off to secure the files, but we were to receive a full set only when the trial was well into its third day and the prosecution’s case was already near its close.
What we found put the case in a completely different perspective, one not even hinted at during any of Wierda’s meetings with our client. We found that in that year, 1987, they had hanged a hundred and sixty-four men in Pretoria, the highest tally for any year in history, and thirty-two of them in the two weeks before the events at the reservoir.
The morning of the first day of the trial Roshnee, Wierda and I met at Wierda’s chambers and walked to the Palace of Justice. Pierre arrived later and kept in the background.
We had a difficult job to do and we did not have a good start.
When we arrived at the Palace of Justice we found a gaggle of media people and scores of policemen in riot gear. The police outnumbered the spectators and journalists and photographers two to one. They were crowding around a dishevelled woman chained to a tree right opposite the entrance to the court. One of the policemen wrenched a placard on a broomstick away from her. She screamed abuse at the man. He threw the placard into the back of the police van before I could read the message on it. We were living under emergency regulations at the time and it was illegal to protest within a hundred metres of a court building, which explained why the riot squad was out in heavy boots and carrying automatic weapons. I saw some policemen, unrecognisable behind the visors of their helmets, confiscating cameras and notebooks. One ripped the film from a camera and held it to the light as if to look at the images on it.
We slipped behind the crowd into the building. Labuschagne was already in the cells, we knew.
‘What is all that about?’ I asked Wierda.
It appeared a man had entered the third-class carriage of a passenger train and shot some people, choosing his victims carefully for their race. The woman was his wife, protesting the fact that he had been refused bail.
In the robing room Wierda introduced me to the prosecutors in our case, James Murray and Sanet Niemand.
I extended my hand. ‘Hello, I am Johann Weber.’
We shook hands. There was a tiny smile on Murray’s lips.
We went with the two prosecutors to be introduced to the Judge and his Assessors. It felt awkward, as it always does, just before the start of a controversial case. We engaged in the customary chit-chat, sizing each other up.
Our judge was J P van Zyl. In Pretoria the advocates called him Japie.
It was van Zyl who mentioned the woman outside. ‘How many did her husband murder?’ he asked.
I did not know, but Wierda did.
‘He killed one and wounded several others, Judge.’
Judge van Zyl pursed his lips and shook his head. It was all we needed – for the Judge to be reminded that we had racist whites shooting black people at random.
‘Are you ready to start?’ he asked Murray and Niemand.
When they nodded he turned to me. ‘And you?’
‘We are,’ I said. What else could I say?
‘Let’s start then,’ he said. His robes lay draped over his desk, still in the dry cleaners’ plastic cover. ‘We’ll enter at exactly ten o’clock, and I expect the proceedings to run smoothly.’
Wierda gave me a I-told-you-so look – the Judge was tough but fair, he had told me. He wouldn’t take any nonsense from anyone.
Murray and I followed Wierda and Niemand down the carpeted passage. ‘I expected someone like you to turn up,’ Murray told me. ‘Wierda is too lightweight for it, and there has been too much activity for a pro Deo.’ He walked with his hands in his pockets and spoke with the assurance of a man who knows what he is doing.
I looked up to see if Wierda, who was engaged in conversation with Niemand, had overheard, but he gave no sign that he had. They were on first name terms but were walking a good two feet apart.
Although we were fifteen minutes early, we took our seats in Court C immediately. I sat at the advocates’ table, contemplating the days ahead. Wierda and I were on the left-hand side of the court with the jury box immediately to our left. The jury box was reserved for the press. Roshnee sat in the row immediately behind us. The prosecutors had claimed the seats closest to the witness box, where they could observe and control the witnesses from up close.
The jury box reminded me that a criminal trial in a South African court was conducted in a style familiar to English lawyers and to English-speaking people across the globe. While we would be speaking Afrikaans throughout the hearing, as the mother tongue of the witnesses and all the other participants was Afrikaans, we would essentially behave like Englishmen. Our rules of criminal procedure were based on English law and so was the law of evidence, but the underlying law was Roman-Dutch, a curious consequence of the history of the country, whose colonial masters had imposed overlaying systems of law on this remote part of Africa at different times. We even dressed like English lawyers, minus the wigs; our climate would have rendered a wig of horsehair on a sweating brow intolerable.
The Judge too would be dressed like an English judge, in scarlet robes, or hanging robes as we referred to them.
We called our judges My Lord and My Lady, as the occasion demanded, even though we had been a republic for more than twenty-five years, harking back to a time when our provinces were British colonies. But now we didn’t have jury trials any more. Instead of a jury of twelve ordinary folk we used two professional Assessors who sat on the bench with the Judge and decided questions of fact with him by majority vote. The Assessors were usually retired magistrates, men experien
ced in the conduct of criminal trials in the lower courts, almost invariably tough, unforgiving characters who had heard every lame excuse or far-fetched defence and every tearful plea for mercy.
Murder trials were a common feature of the South African legal landscape, an unfortunate fact of life for us. We had so many of them that we had become somewhat careless in our handling of them, perhaps even a little blasé. In practice the most junior members of the Bar acted as defence counsel and the prosecutors were usually equally inexperienced.
This trial was different, though. We had senior counsel on both sides, each with a junior to help carry the load of a complex case. While the prosecutors were to be assisted by the investigating police officer, we had the assistance of an attorney.
I listened to Wierda’s breathing. It was even but I knew his pulse must be racing. He was drumming on the table with his pencil. Behind us, Roshnee was shuffling papers and moving the heavy lever arch files around. She had done an excellent job in the preparation. Like a general marshalling her troops she had led Wierda and me to the point where we were ready for battle. Roshnee was in charge of the logistics of the defence and, when we asked to see a potential witness, she would produce the witness along with a draft statement or a list of suggested questions. When we asked for a document she produced the original with copies. When we asked for official records she bullied and harried civil servants until she got them for us. The only place where she could not gain access was Maximum Security Prison, but we had Pierre de Villiers with his military connections to get us that.
Pierre was already in the gallery, talking to a grey-haired man in a suit sitting next to him. His and Roshnee’s work had been done during the preparation stage; the trial was my responsibility. It was about to start. There would be long periods of mind-numbing monotony punctuated with unpredictable bursts of gut-wrenching action.
I looked across at Murray and Niemand. They exuded calm and readiness as they sat there, huddled in whispered conversation. Would we be able to cope with the surprises our witnesses would inevitably produce? I looked up at the bench and the empty seats behind it. What about the Judge? He could deliver some of his own.
Shepherds and Butchers Page 9
