Palace of Justice

11

The prosecution’s opening statement was delivered by Sanet Niemand. She was as hard and angular as Wierda was soft and round. Her hair was tied in a bun. She wore no makeup or jewellery. I had sensed some tension between her and Wierda, but on the surface they were polite to each other.

Niemand had stated the facts supporting the prosecution theory coolly, without emotion or argument, reading from a prepared script. The opening statement took less than half an hour. The two prosecutors then took turns to lead the evidence of their few witnesses. James Murray was near my age. He had an ominous calm about him and spoke idiomatic Afrikaans without any trace of an accent. At our first meeting in the robing room I had teased him, asking what a good Scot like him was doing in Pretoria. He’d answered that his ancestors were Scottish missionaries who had fallen in with the local population. He was referring to my ancestors, I had thought.

Pierre was seated a few rows behind us. An untidy middle-aged man sat next to him. They were talking like old friends but I thought nothing of it then. Labuschagne’s family, his parents and his sister Antoinette, were in the first row behind the dock. Labuschagne sat some distance away from them. Despite Wierda’s best efforts Labuschagne would still not allow his parents to see him in the cells. In a dock that could accommodate fifteen people, a dock specially erected for Nelson Mandela’s trial in 1964, Leon Labuschagne sat alone, the focus of all the drama unfolding around us.

On that first day I had taken some time to study the spectators. Members of the public had taken their positions at the back of the court according to the side they supported, I thought. Most of the spectators in the public gallery in that half of the court behind the prosecutors were black; the majority of those behind the defence were white.

Some voices were raised during the prosecution’s opening statement, and again when photographs of the bodies were produced and handed in as exhibits. Each time Judge van Zyl asked the public to remain calm and to allow the Court to do its job.

In the beginning everyone had expected political grandstanding and rioting spectators, but there was neither. The prosecutors had kept their case simple, and we were keeping a low profile. As for the audience, once they had heard the basic outline of the facts as presented by Niemand, they appeared to lose interest. It seemed that everyone, black and white, had become inured to the pain and drama of a murder. It was as if we had had so much of it that even the killing of seven young men could not hold our attention for more than a day or two.

After the opening statement, the State witnesses came to the witness box in a steady stream and left as quickly as they had come. There were no fireworks and no cross-examination to speak of. We avoided confrontation and we did not seek to justify Labuschagne’s actions. We shunned the media and stuck to our plan to reveal only as much of our case as we had to.

During the prosecution case we heard the evidence of a man from the municipal water department about how he had gone up to the reservoir to take the water level and found the bodies in the mud. There were fresh tracks around the bodies, but the bodies were untouched. Various policemen gave evidence about their investigations at the scene, about how they had found the murder weapon, as they called it, sunk into the mud, and how they had traced Labuschagne from the number plate of his bakkie. The key was in the ignition, the policemen told the Court, but the bakkie would not start. The prosecutors were to use this fact against us.

We had offered to admit the post-mortem reports, but instead the District Surgeon was called to give evidence about his findings, no doubt to lay the foundation for an argument that the shootings had been planned and deliberate; in other words, that it had been a cold-blooded execution of the victims. We considered cross-examining him about the execution process at Maximum, but decided against it. We needed to keep our powder dry, and our investigations were in any event still in progress.

Roshnee pointed out to us that we had slipped off the front page of the local newspapers. By the third day we were already on page four. But it would not stay that way. The drama was to come in the defence case.

Wierda had the task of cross-examining the last State witness. When he sat down, James Murray immediately started his re-examination.

We were nearing the end of the prosecution’s case. Our strategy had been not to emphasise or compliment any part of the prosecution’s evidence, and our cross-examination had been short. In the case of some witnesses we had no questions at all. The result was that after a day and about an hour we were set to start the case for the defence.

Murray was on his feet. Sanet Niemand hardly ever glanced in my direction. She also wrote down every word that was said, even during the staccato exchanges when an objection was made. I assumed that she had done the research for their team and was in charge of the administration of the case. We kept a polite distance from her.

The three figures on the imposing bench watched the last prosecution witness intently. The bench was an ornate work of art, a raised, fully enclosed wood-panelled structure approximately three and a half metres wide and three metres deep. Three high-backed swivel chairs stood side by side under a canopy of even more elaborate woodwork. The canopy was in the shelter of an arch, supported on either side by thick wooden columns. Behind the Judge’s chair was the door leading to the Judges’ quarters, out of bounds to all but the lawyers and clerks who had legitimate cause to enter the inner sanctum of the court. In front of the chairs was a polished wooden table, about one metre wide and spanning the full width of the bench.

I thought about the progress of the trial thus far.

The prosecution case had been presented with cold and clinical efficiency, without fanfare. James Murray was effective and professional. While treating me with the courtesy demanded by the etiquette of our profession, he quietly went about the business of putting our client on the trapdoors under the ropes. The exhibits he introduced were of the nature of plans and photographs. He was confident enough to allow his Junior to perform some of the important tasks of the trial, and experienced enough to let the evidence speak for itself. Here are the bodies. See the bullet holes in them. Here is the murder weapon. It belongs to the defendant. Look at these photographs. There is the defendant’s bakkie next to the bodies. See where the bullets have passed through the bodies and into the side of the minibus. When the defendant’s bakkie wouldn’t start he was forced to flee on foot.

The post-mortem reports told their own grim tale of the heights and weights of the deceased, of entry and exit wounds and the tracks of the numerous bullets. And they were all fired by the defendant, Murray pointed out repeatedly.

Sanet Niemand led the evidence of the investigating detective, a Detective Warrant Officer. He gave evidence on Labuschagne’s arrest and his silence when confronted with his pistol. The policeman produced Labuschagne’s statement, but it contained nothing of consequence. The statement was in the policeman’s handwriting:

I have been advised of my rights and that I am being charged with seven counts of murder. I decline to make a statement.

Q. Do you want a lawyer?

A. (The accused gave no reply.)

The registrar coughed behind her hand. She wore robes and sat in the anonymity that her uniform provided, directly in front of the Judge in her own domain of wood panelling and red leather. From her slightly elevated position she could face the assembly of people in the court, from the stenographer, whose table stood in front of hers, to the advocates in the first row of seats. The attorneys’ table and the dock completed the well of the court. Finally there were the public benches behind the dock and in the gallery above.

The media were in a privileged position, occupying the two rows of seats in the jury box. Trial by jury had been abolished because it had become clear that the jury system simply could not work in a society divided by race.

Directly opposite the jury box on the right was the witness box, occupied for the moment by the prosecution’s last witness. I had lost interest in him; he could not make our case much worse than it already was. The witness box was enclosed on three sides by the same dark wood panelling that enclosed the bench. Its floor was just slightly raised – twenty centimetres or so – above the carpeted floor so that a witness always stood slightly higher than counsel, perhaps as an indication of their relative importance in the process of arriving at the truth.

My rambling thoughts were interrupted when James Murray informed the Judge that he had no further questions and Judge van Zyl nodded in the direction of the witness. By this time I had got used to the way he controlled his Court with nods and the inclination of his head instead of words. A tap of his pen on his bench pad meant, wait, you are going too fast. He only had to tap once and I knew what to expect. When he took his spectacles off it meant he needed time to think. We had to watch his pen and his eyes to adjust the pace of our questions. I quickly learnt that I would have to keep an eye on him throughout.

‘You may step down,’ he now said to the witness, ‘and you are released from further attendance.’

James Murray had remained standing and announced the close of the prosecution case. ‘That is the case for the State, M’Lord and gentlemen Assessors.’ Then he sat down.

It was our turn at last, after months of preparation. While I knew the case materials backwards I could still feel some nervous tension in my shoulders. Wierda and I knew that everything we said would be subjected to close scrutiny, that every proposition would be tested, not only by our opponents but by the Judge and also by the media. Every word would have to be weighed and measured to fit exactly into the scheme of the defence we had prepared.

I started tentatively. ‘May it please M’Lord and M’Lord’s Learned Assessors. We intend to call witnesses and we have an opening address.’

‘Yes, carry on.’ Judge van Zyl was not wasting any time; his posture said: get on with it.

I placed my trial notebook on the lectern in front of me and adjusted my robes with a tug at the shoulder. It was a nervous habit. I could feel the focus of the spectators shifting to our table.

‘This is an extraordinary case,’ I opened quietly, ‘where the evidence for the prosecution is undisputed and the prosecution’s case is, in a way, also the case for the defence. The prosecution has been at pains to show what has happened. The defence will explain why it happened. The prosecution’s case has been about the what and the how. Our case is about the why.’

Judge van Zyl and his Assessors did not stir, but they were watching me. There had been so little cross-examination of the prosecution witnesses that they had not seen much of me; I now got the impression that they were observing me very closely. I continued without having to look at my notes.

‘This is essentially a case of taboos.’ I paused for a moment before I explained. ‘First there is the taboo of killing. The killing of a human being is viewed with universal disapproval, and the more brutal the killing, the greater the disapproval with which members of the public view the event and the killer. Multiple killings increase that disapproval to the point where ordinary, right-minded members of society are prepared to cast the killer to the wolves without a trial.’

There was still no reaction from the bench. No one except Niemand was taking notes.

‘The second taboo is the taboo against interracial crime. For decades our courts have viewed interracial incidents, especially in crimes of violence, as more serious and have punished their perpetrators more heavily than the norm for similar crimes where race was not an element. And here we have had a killing across the racial divide: the defendant is white, the deceased were all black.

‘The third taboo is the taboo against the so-called blackout defence. In strict legal theory it is a defence against the actus reus element, although that principle has not always been expressed clearly in our textbooks and judgments. It could also be a defence against the mens rea element. But we are going to lead evidence that there was no legal act, no act to which the law attaches legal consequences in this case.’ I had used old Latin legal terms for the criminal act and for state of mind.

The Judge made a note in his notebook. I waited for him to finish and when he looked up and nodded at me I made sure to engage the two Assessors in eye contact before I resumed.

‘M’Lord and gentlemen Assessors, the prosecution has to prove the following elements on a charge of murder.’ I used technical terms to list the legal requirements for a conviction on a murder charge. I held up a finger for each element as I spoke: ‘Murder is an

one – unlawful

two – intentional

three – act

four – that causes the death

five – of another human being.’

I told them a second time that our defence was that there had not been a criminal act because Labuschagne lacked criminal capacity.

The Judge shifted in his high-backed chair and when he spoke his tone was charged with incredulity. ‘Are you suggesting that there has been no act, when we have seven bodies here?’

He looked sideways at each of his Assessors in turn and said something under his breath. I was sure the reporters nearest to the bench could hear him as clearly as I could. ‘Moenie my vertel perdedrolle is vye nie!’ I got the message.

I played to the mood of the bench. ‘According to case law M’Lord is entitled to be sceptical, as we shall demonstrate to M’Lord and the Learned Assessors when we address the Court on the law during our closing argument.’

When there was no response I carried on, using we to include Wierda in the submissions, ‘We mentioned the third taboo earlier because it is entirely natural to be sceptical of this defence when the killing has admittedly been committed by the defendant’s hand.’

Judge van Zyl intervened. ‘You had better explain very carefully what the defence is as I am at a loss to understand how you can say that there was no act when you have admitted that the accused has killed the seven deceased.’

‘With respect, M’Lord,’ I began, ‘in the statement explaining the basis of the defendant’s case, which we handed in at the commencement of the trial, we explained that the defendant admits that the deceased were killed by his hand but denies that his actions had been, to quote from the defence statement, voluntary and conscious. The issue is whether there has been an act within the requirements of the law, an act which was both a conscious and a voluntary act.’

He intervened again. ‘What you have said relates to the defendant’s state of mind, not to his physical acts.’

I wanted to pacify him by referring to case law and textbooks dealing with the principle that unconscious and involuntary acts are not punishable, but as I reached for a Law Report he stopped me.

‘You may assume that I know the law,’ he said.

I needed a different angle. Before I could speak again, I heard Wierda’s pencil tapping against his teeth. Tap tap tap. I tried not to let it distract me.

‘The underlying facts of the events are common cause and were proved by the prosecution’s witnesses. May we remind M’Lord and the Learned Assessors of the events of the evening of 10 December 1987, as deposed by the prosecution’s witnesses?’

I did not wait for Judge van Zyl to respond to my question. ‘We would like to emphasise that the facts of the prosecution’s case are also the facts of the case for the defence – the events starting at Saxby Road, the car chase all the way down the Old Johannesburg Road, Jan Smuts Road, down to Magazine Street and up to the reservoir on Magazine Hill. All of those events are common cause. It does not matter whose fault those events were. The events at the reservoir are also not in dispute. Even the brutality of the killings is an essential component of the defence.’

As I spoke I could see the Judge studying the prosecution’s exhibit, a photo album.

‘It is the very brutality, the savagery with which the deceased were killed,’ I continued, ‘the scale of the event – seven fit and strong young men killed by a single individual – that calls for closer scrutiny. The ritualistic positions in which the bodies were found is another factor prompting an intensive enquiry. The prosecution has adduced no evidence of a motive and there appears to be none. What we ask for is a rigorous but fair examination of the defence and the defence’s evidence in the light of all the circumstances. We ask for no more than that.’

Judge van Zyl took the bait. ‘I, um, we intend to do just that. Didn’t you say that there is authority to the effect that we should be careful in our scrutiny of the defence evidence in a case like this?’

I caught myself tugging at my robes again. ‘This case is about why the defendant behaved in the way he did and whether he can be held criminally responsible for what happened that evening. The defence contends that he cannot be held responsible. We intend to lead detailed evidence about the defendant’s background, in particular, his work circumstances during the eighteen months before 10 December 1987.’

The Judge looked at the clock and indicated that it was time for the tea adjournment. ‘You can tell us about the defendant’s background when we return.’ Then he rose and left the court through the door immediately behind his chair. The Assessors followed him.

Labuschagne was taken down the stairs to the cells. Members of the public stayed in the courtroom to preserve their seats. Reporters spilled out of the jury box into the corridor, looking for an opportunity to smoke a cigarette while phoning their editors. I left for the robing room with Wierda. I needed some air.

We left our robes in the robing room off the corridor directly behind the courtroom. There were other advocates there and we left quickly. Wierda suggested that we go for a walk on Church Square. ‘We can talk there,’ he added.

We met Roshnee on the steps and rushed across the street to the Square. We sat down on the steps of the monument in the centre of the park-like grounds. Vagrants had occupied all the park benches. We were in the shade cast by the statue of the last President of the Transvaal Republic, Paul Kruger, affectionately known as Oom Paul. We bought some soft drinks from a street vendor. Wierda and I discussed the remainder of our opening statement, refining it here and there and adding bits that arose from the questions the Judge had asked and the attitude he had exhibited thus far. I scribbled a note to myself in the margin next to the relevant paragraphs of the draft.

‘An impressive building, even if it is a bit run down,’ I said, twenty minutes later, as we were making our way back to the Palace of Justice for the second session of the day.

‘My great-grandfather designed it,’ Wierda said with a glow of pride. ‘In 1894.’

Crossing the street, we made our way up the steps in front of the building together. Wierda showed me the plaque at the entrance, on the left.

GEBOUDED IN DE JAREN 1896-1899

S WIERDA J MUNRO H V WERKEN AANNEMER

It was an odd combination, a Hollander and a Scot.

I did not stop to notice the elaborate foyers at the entrance as I was already lost in the details of the opening statement.

I took my time when I sketched Labuschagne’s history and background; it would eventually become an important component of our attempt to explain the events at the reservoir. I spoke slowly and emphasised the salient features without repeating them and without presenting facts as argument.

I next had to deal with the witnesses to be called to give evidence on behalf of the defence. There was three-quarters of an hour left before the lunch adjournment. On the spur of the moment I decided to depart from the prepared opening statement and to give the Judge and Assessors only the most basic outline of the proposed evidence. I closed my trial notebook and spoke off the cuff.

‘The defendant will be called first,’ I said. ‘The second witness will be his wife, Magda Labuschagne. We intend calling the headmaster of the defendant’s high school. Then we intend to call two expert witnesses. First, Dr Marianne Schlebusch, a practising clinical psychologist and lecturer at the University of the Witwatersrand. Dr Schlebusch will say that, in her opinion, when he shot the seven deceased at the reservoir, the defendant’s mental processes had broken down to such an extent that he was neither aware of his actions nor in control of them.’

Wierda passed me a note, but I knew what it said and pocketed it unread. I continued without a pause.

‘Our last witness will be Professor Leonard Shapiro who teaches Psychiatry at the University of Southern California Medical School and is a forensic expert on the panel of psychiatrists of the United States District Court for the Central District of California. The burden of Professor Shapiro’s evidence will be that, after studying the case materials and the several interviews he has conducted with the defendant, he agrees with Miss Schlebusch’s opinion.’

The courtroom had become eerily quiet. We had finally disclosed our hand; in the language of bridge we had made our bid. There were a few minutes left before one o’clock. The moment had finally arrived for Leon Labuschagne to talk, to tell his story and to face the consequences.

‘M’Lord,’ I said, ‘we are ready to call the defendant, but we would ask for an indulgence, namely to adjourn for lunch at this stage.’

Judge van Zyl nodded but did not announce the adjournment.

‘There is a matter that is of some concern to me,’ he said gravely. ‘You mentioned that the defendant worked in Maximum Security Prison and that evidence will be given of his work conditions and of events which took place there, am I right?’

I confirmed that that was our intention.

He thought for a while. ‘In that case,’ he said eventually, ‘I do not want any names to be used, not of the officials or the inmates, no one at all unless it cannot be avoided.’

‘We shall oblige,’ I agreed immediately. It would give the defence greater freedom to make use of the information we had gathered.

Judge van Zyl pointed his spectacles at me. ‘And I expect you to ask me for permission before you use anyone’s name.’

I agreed again, though it was a promise that would not be easy to keep.

‘The Court adjourns until two-fifteen,’ said the Judge and we trooped out to the Square for the second time. Before I left I arranged with the cell sergeant to let us into the cells below the courtroom at half-past one to give our client his final briefing.

As we were walking to the robing room, I took Wierda’s note from my pocket. Why are you abandoning our prepared opening statement?

‘A change of tactics,’ I said. ‘I thought it would be better to leave the explanations for the closing argument.’

Wierda was not convinced. He shook his head in displeasure at my changing course without consulting him. We had spent many hours in his chambers crafting together what we thought was a perfect opening statement, one with a solid mix of logic and emotion, balancing law and fact, evidence and inference, a teasing statement that left the details for later. It was the detail that worried me. Would our witnesses produce the goods?

Roshnee showed no interest in the discussion and, as was her habit, stuck to more practical things. ‘Let’s get something to eat quickly, we don’t have much time.’

We departed promptly and ate our sandwiches in the shade provided by a tree a few yards away from Oom Paul’s statue. I took the opportunity to brief Wierda and Roshnee on the second case I had summarised.