Palace of Justice

46

James Murray had more surprises for us when we resumed.

‘You collected beads?’ he said. He was looking at his notes and was still not making eye contact with Labuschagne.

Labuschagne hesitated. ‘No,’ he said, but it was a rather tentative no.

‘One of your special tasks was to order the coffins required for each execution.’

‘Yes.’

‘And you said that you had attended every execution last year, is that so?’

‘Yes.’

‘You didn’t volunteer for the job as escort, you did it because the Warrant Officer allocated you to that duty, you said?’

‘Yes.’

Murray immediately followed with a short jab. ‘And you were the only escort who was present at every execution last year, weren’t you?’

Labuschagne took his time answering. ‘Yes, I think so.’

The delay in answering only lent emphasis to Murray’s point.

‘Come on,’ he said. ‘Don’t play games with me. We know this from your own evidence. You had to be, because there were occasions when you had only one prisoner to hang, and you said you were present at every hanging.’

Labuschagne did not answer. The Judge scribbled in his notebook. I feigned indifference. Wierda muttered, ‘What a fucking bully.’ I didn’t see it like that. James Murray was being efficient.

After a while Murray turned a page. ‘The coffins came with screws for the lids, with pre-drilled holes and with the screws lightly set in them, is that right?’

Light was beginning to dawn in Labuschagne’s eyes. He looked hard at the Warrant Officer, but the Warrant Officer was putting on a show of looking at his fingernails. There might have been just the slightest hint of a smirk on his ruddy face.

‘Yes,’ said Labuschagne. He was still looking at the Warrant Officer.

Murray opened the folder on his lectern and took out a photograph. He pretended to study it as he asked, ‘And the screws came with little plastic beads.’ He squinted as he leaned forward to study the photograph from close up. ‘Yellow ones and green ones and white ones.’ He looked up. Then he looked at the photograph again. ‘Oh, and little pink ones too.’

For a moment Labuschagne stood with his eyes closed. Then he started rocking again, slowly. ‘No, they were washers,’ he said, his eyes still closed.

‘They were washers, you say?’

‘Yes, washers.’

‘That’s what I mean,’ said Murray. ‘You collected those washers. You kept one washer for every prisoner you escorted to the gallows, didn’t you?’

‘It wasn’t like that.’ The answer came late and half-heartedly. The Judge and both Assessors were looking at Labuschagne. He didn’t make eye contact with them.

‘Well, how was it then?’ asked Murray. ‘You tell us how it was then.’

Labuschagne stared at the floor. There was no answer. Murray moved on. No answer was as good as an affirmative answer.

‘You kept one washer from each coffin; they were like notches on a gunslinger’s six-shooter!’

‘I said it wasn’t like that.’

Murray repeated a question he had asked a few minutes earlier. ‘You were the only warder who attended every execution last year, weren’t you?’

‘And the six months before that,’ said Labuschagne. He was not making his case any better by volunteering the additional information.

‘I stand corrected,’ said Murray, feigning sincerity. ‘You did so because there was a competition between the warders to see who could collect the most beads –washers, I mean – didn’t you?’

‘No, I was ordered to do that work.’ Labuschagne sighed heavily.

‘Take a sip of water,’ the Judge said, then watched as Labuschagne drained the glass. The usher filled it immediately from the carafe on the prosecutors’ table.

‘Carry on,’ said Judge van Zyl, and Murray was at it again like a terrier.

‘Please look at this photograph.’ He handed a batch of photographs to the usher and waited for the usual distribution process to be completed. I studied mine. It showed a necklace of sorts with coloured beads. Labuschagne glanced at his copy and put it down on the front edge of the witness box. He had paled significantly in the last few minutes.

‘These are the washers you collected over the eighteen months before you were arrested, right?’ The implication was that there would have been more but for Labuschagne’s arrest.

‘Yes.’

‘The photograph was taken at your house when the police searched your house for the murder weapon. You kept the washers in your drawer.’

I stood up to object but the Judge pre-empted my effort. ‘Refer to it as the pistol or as Exhibit 1. We’ll decide if it is a murder weapon.’

‘As M’Lord pleases,’ said Murray, but he had made his point.

‘You were paid extra for every execution you attended, weren’t you?’ he said. The Warrant Officer had obviously been a mine of information.

‘Yes.’

Niemand became agitated and pulled at Murray’s gown. He leaned down to listen to her and when he straightened up, said, ‘M’Lord, I am sorry, I need to clear up one more thing before I proceed along this line.’ When the Judge didn’t react he returned his focus to Labuschagne. ‘And when you were arrested, you had one of those washers in your pocket, didn’t you, from the tenth?’

Labuschagne nodded. I spoke to Wierda from the corner of my mouth. ‘Did you know this?’ He shook his head.

‘You had already placed the washers from the executions on the eighth and ninth on the string, hadn’t you?’ said Murray.

Labuschagne nodded again, signalling defeat on this issue. He could no longer bring himself to speak. The record would reflect that there had been no answer.

Then Murray came at him from a different direction. ‘You were keen to receive the extra money, weren’t you? That’s another reason why you volunteered for this work.’

Labuschagne came to life again. ‘It was only five rand.’

Murray left the topic as abruptly as he had introduced it.

‘I suggest that you’ve exaggerated the resistance shown by prisoners during the execution process.’

Labuschagne squinted at the change of direction. ‘They resisted.’

‘I am not suggesting no one ever resisted. I am suggesting that you have exaggerated the frequency with which that happened and the extent of the resistance.’

‘No, that is not true. They often resisted. It didn’t happen every time, but it happened often. Why do you think we had four or five warders on standby each time? To watch?’ he asked.

‘You are not to ask questions,’ said Murray. ‘That is my job.’

Labuschagne looked up at Judge van Zyl. ‘Sir, do you really think they would go quietly? That’s why we didn’t tell them what was going to happen; they would be on the trapdoors with the ropes around their necks before they knew what was happening. Does anyone really believe they would go up without resisting?’ He looked around the court, but no one answered.

Judge van Zyl listened patiently to this outburst. ‘The prosecutor is right; you should not ask him questions. Please confine your answers to what is being asked, no more,’ he said, but his voice was kind. ‘Can you do that?’

‘I’ll try, sir.’

Murray was not going to let go. ‘I suggest that the prisoners may have been slow to follow orders, but generally they went along calmly.’

‘That is just not true. They were not calm. They were taut as wire. They were shaking and shivering. They cried. They prayed aloud. They wet themselves, and … many fainted. They had to be pushed and prodded every step of the way.’ Murray held his hand up, but Labuschagne paid him no heed. ‘We had to drag some of them every single step from the chapel to the top floor, up fifty-four steps, and some we had to carry up because they had fainted. We took up some of them tied to those aluminium chairs we used, and we put them on the trapdoors in their unconscious state and dropped them, chair and all.’ He paused for air. ‘It is just not true.’

‘May I have a moment, M’Lord?’ said Murray and the Judge nodded. Murray conferred briefly with the Warrant Officer and turned back to the witness box.

‘I am instructed that in the eighteen months you were there, there was never an incident of extraordinary resistance.’

‘No, that is not true. There was a lot of resistance,’ said Labuschagne. ‘We hanged about two hundred people in that time and there was a lot of resistance.’

The Judge intervened. ‘Mr Murray, are you saying that all those prisoners went to their deaths quietly and without causing any trouble?’ Murray had overplayed his hand.

‘Generally yes, M’Lord,’ he said after a pause.

‘And what do you mean by extraordinary resistance?’ asked the Judge. ‘I would have thought that it implies that a certain amount of resistance is taken for granted. Are you and the defendant not perhaps sparring with words?’

‘May I take instructions, M’Lord?’ said Murray.

‘Yes, go ahead.’

Murray again conferred with the Warrant Officer. When he turned back to face the bench he abandoned that line of cross-examination with a curt, ‘I won’t pursue that line any further, M’Lord.’ He closed his trial notebook and I quickly gathered my notes for re-examination, but it seemed he hadn’t yet finished. ‘Let me put my case to you step by step,’ he said without reference to notes.

‘You got involved in an argument on the road with the deceased in the minibus. Am I correct so far?’

‘Yes.’

‘You drove to the reservoir, as we discussed earlier, in terrible conditions, but you got there safely. Correct?’

‘Yes.’

‘Then you got out of your bakkie and you emptied your pistol into the seven deceased.’

‘Yes.’

‘Then you ran away when you found that you couldn’t start your bakkie.’

Labuschagne looked up sharply. ‘No, I never tried to start the bakkie. I just ran.’

‘You killed them because you were angry.’

‘No’.

‘You knew very well what you were doing, and that is why you refused to speak to the police or to anyone after the event.’

The question was argumentative but I let it go. ‘No,’ said Labuschagne, ‘I was just so ashamed and I didn’t know what to say. What could I tell them?’ he asked. ‘What could I tell them? I still don’t know what I can say.’

It struck me that he could speak of the events in the prison, but couldn’t face what had happened at the reservoir.

‘You didn’t tell anyone what had happened because you knew all too well that you had killed those young men in a fit of anger and you had no excuse for what you had done.’ Murray stood with his arms folded across his chest.

There was no reply.

Murray stood for a while, paging through his notes; then he placed them face down on the lectern and looked up at Labuschagne. ‘Let me tell you what I’m going to argue really happened that afternoon.’

I picked up my pen to take notes. I saw Judge van Zyl doing the same. Murray was about to put his case to Labuschagne and we would have a preview of his argument. I put my notebook on the arm of my chair and leaned back. I wrote down every question and answer verbatim.

Murray was looking at a spot above and behind the witness box. He held his left arm low across his waist and his right elbow resting in his left palm. He spun a pen between his fingers like a conjurer’s coin, around and around. He spoke slowly, at dictation pace, knowing that the Judge would take detailed notes.

‘After the skirmishes on the road, the two vehicles ended up at the reservoir, correct?’

‘Yes.’

‘You were angry?’

‘Yes,’ but after a pause.

‘You took your gun, the pistol, didn’t you?’

‘Yes.’

‘The seven deceased, the men who are now dead because you shot them dead, came out of the minibus, correct?’

‘Yes.’

‘And you shot them all dead, all seven of them?’

There was a much longer pause this time. ‘Yes.’

‘One by one, you shot them, some more than once, correct?’

‘Yes,’ in a very low voice.

‘One by one you shot them, and you shot them all dead, didn’t you?’

There was no answer at first. Murray waited until the silence became obvious and then asked the same question in exactly the same tone of voice. When the answer came it was hardly above a whisper.

‘Speak up, please,’ said Judge van Zyl. Labuschagne did not acknowledge the admonition and Murray took the opportunity to make his point a third time.

‘You shot them all, one after the other, and you shot them dead.’

‘Yes.’

‘They were unarmed, weren’t they?’

‘Yes.’

Labuschagne looked at me as if to say, ‘What is this about?’ I knew what it was about but I couldn’t come to his assistance.

‘Then you arranged the bodies neatly in a row next to the minibus, didn’t you?’

‘I don’t remember that,’ said Labuschagne.

‘I am not asking about your memory,’ Murray admonished. ‘I am asking about your actions.’

‘I don’t remember shooting them.’

That was not what Murray wanted, but he carried on as if the answer did not matter.

‘Then you fled from the scene.’

‘Yes, I can remember running.’

‘Across the road that goes up the side of the hill, on the side where the monument is, am I right?’

‘Yes.’

‘Then you ran further down the hill until you got to the highway?’

‘Yes.’

‘And you made your way across six lanes of traffic, didn’t you?’

‘Yes, I must have.’

‘Then you got to a fence and you climbed over it?’

‘Yes.’

‘And you went into hiding?’

‘I wasn’t hiding. I fell asleep.’ After a pause, noted by the Judge I am sure, Labuschagne added, ‘Or passed out, I don’t know.’

‘But you ran away as soon as the security patrol from the monument found you there the next morning, didn’t you?’

There was no response and Murray did not press for an answer. He had made his point. There was a faint twitch at the corner of Labuschagne’s mouth, but Murray was not watching him and the moment passed.

‘I have no further questions,’ Murray said suddenly and sat down. He leaned back in his chair and flung his arm over the backrest. His attitude said: Is this the best witness you have?

I wondered why he hadn’t asked more questions about the monument.

I had told Wierda earlier that he would have to do the re-examination, but it turned out too delicate a task to leave to him. It could go wrong very easily and then he would bear the blame for it. I stood up and waited for the Judge’s signal.

‘May it please M’Lord,’ I said when he nodded.

I thought long and hard before I faced the witness box. Re-examination is an important phase of the evidence, but it is somehow paradoxical. If your witness has been demolished in cross-examination there would be no purpose in re-examining. All the King’s horses and all the King’s men couldn’t put Humpty-Dumpty together again. If the cross-examiner has done no harm to your case, you don’t need to re-examine either. But if the cross-examiner has done some harm that could be repaired, re-examination is essential. I had some work to do.

‘Mr Labuschagne, Mr Murray has asked you about your silence afterwards. I need to clear up some aspects of that period,’ I said.

Labuschagne stood with his head bowed and gave no indication that he was listening. I did not want him to appear furtive, so I admonished him gently. ‘Please look at me when I speak to you.’

He looked up. There were tears in his eyes and his face was puffy.

‘Let’s take it one step at a time,’ I suggested. ‘Let’s start with the ambulance. You were taken to hospital in an ambulance. Did you speak to anyone in the ambulance about what had happened?’

‘No.’

‘Why not?’

‘I wasn’t sure what was going on.’

‘Did you know at that time what you had done?’ I asked.

‘I suspected.’

I took a chance with the next question. ‘What did you actually remember of the incident at that time?’ I held my breath.

‘I remembered the trapdoors and the thunder and lightning, and the colours, and then later seeing the bodies.’

I let my breath out slowly. ‘Let’s go to the next stage. You were in hospital for three days. Did you tell anyone in hospital what had happened?’

‘No.’

‘Why not?’

‘No one asked, except the policeman who came to arrest me.’

‘Did you tell the policeman?’

‘No.’

‘Why not?’

‘He said I had the right to remain silent, and I didn’t know how to explain to him what I could remember. I thought he would think I was mad, and that they would lock me away until I was old and confused like Mr Tsafendas. I thought he wouldn’t believe me if I said I didn’t remember.’

‘Then you appeared in the Magistrates’ Court for a number of remands. Did you tell anyone at or in court what had happened at the reservoir?’

‘No.’

‘Why not?’ I asked for the umpteenth time.

‘I also felt ashamed. I didn’t know what to do, so I just kept quiet.’

‘Then Mr Wierda came to see you.’ I put my hand on Wierda’s shoulder. ‘He told you he had been appointed as pro Deo counsel for you. Did you tell him what had happened?’

‘No.’

‘Why not?’

‘I didn’t want to speak to anyone.’

‘Did you ever tell your parents what you could remember of the incident at the reservoir?’

‘No.’

‘Why not?’

‘I just couldn’t speak to them.’

‘Who is the first person you told?’ I asked.

‘You,’ he said. I felt all eyes in court turning to me, even Murray and Niemand were paying attention for the moment and dropped their pose of disinterest in the re-examination.

I had asked enough ‘why’ questions. ‘When did you tell me?’ I asked.

‘It was in July, as far as I can remember.’

‘Have you told anyone else, other than here in court?’ I asked.

‘I told the doctors who came to see me.’

It was time to introduce our expert witnesses.

‘Are you talking of Dr Schlebusch and Dr Shapiro, the two persons sitting here behind me?’ I half turned and pointed at them.

‘Yes,’ he said.

That was enough on this topic.

I asked Sanet Niemand to pass me the pistol. It sat on their table. She brought it over to me; she wasn’t going to slide it along the desk like she had done with the documentary exhibits. I thanked her with exaggerated politeness and put the pistol on the lectern in front of me.

‘This pistol, Exhibit 1, belongs to you, doesn’t it?’

‘Yes.’

‘How long have you had it?’

‘It was a birthday present when I turned eighteen.’

‘Had you fired it before the night at the reservoir?’ I asked innocently. I knew full well what he was going to say.

‘Yes.’

‘How many times?’

‘Many times.’

‘How did that come about?’

He explained, ‘I was in the shooting club and we practised.’

Murray objected. ‘M’Lord, this evidence does not appear to arise from my questions.’

I was ready for it. ‘M’Lord, I’ll get to the point in a moment, but I should perhaps mention that my Learned Friend asked some detailed questions about the shooting. The evidence I intend to elicit is relevant to the points my Learned Friend was making, or was trying to make.’

Judge van Zyl quickly made up his mind. ‘Carry on, but see if you can speed things up a bit. We’ve had a long week.’ I couldn’t agree more.

‘As M’Lord pleases.’ I turned to Labuschagne. The next piece of evidence was crucial to the defence’s case, and if Labuschagne didn’t give it we would have to call the instructors at the pistol club to give evidence after the weekend.

‘Can you take this pistol apart and put it back together?’

‘Apart in less than a minute, and I can put it back together again in two minutes. I know it well.’

I picked the pistol up and weighed it in my hand. It was a 9-millimetre Heckler & Koch P7M13. The prosecution ballistics expert who had given evidence earlier had explained its characteristics. The pistol didn’t have an external hammer. You cocked the pistol by squeezing the grip; for that there was a sliding mechanism on the front edge of the grip. It was known as a squeeze cocker, the expert had said, and when you squeezed it, it disappeared into the grip and the pistol would be ready to fire. What is more, you could empty the whole magazine in seconds as long as you kept the pressure on the squeeze cocker and the trigger. It is a unique type of pistol, the ballistics expert had said, one of the very best, and one not many people would have seen before.

‘Have you ever timed how long it takes to empty the magazine in one burst?’ I asked.

‘Yes, it takes less than three seconds.’

I took another risk. ‘Do you have any memory of the three seconds or so it must have taken to empty the magazine at the reservoir?’

He answered before James Murray could object. ‘No.’

Of course, there was no evidence to suggest that the shooting at the reservoir had been over in three seconds. For all I knew Labuschagne could have lined them up against the minibus and shot them one by one.

I had to clear up another matter, but there was some risk attached to it. I needed to ask the question in such a way that I could get the right answer without telling Labuschagne what the answer was. So I did it in a roundabout way.

‘You said the Warrant Officer had you do the drop calculations for him?’

‘Yes,’ he said.

‘Did you do that for every execution last year?’ I asked.

‘Yes.’

‘You also said you were present at every execution last year. Why was that, do you think?’

He got the message. ‘I think it was because I had done the calculations.’

That would answer at least one of the prosecution’s points.

‘I have no further questions, thank you,’ I said, ‘but please remain where you are in case His Lordship or the Learned Assessors have some questions for you.’

I sat down and watched the Judge. He appeared lost in thought as he paged through his notes. Then he turned to each of the Assessors. Both shook their heads. The Judge turned to Labuschagne. He had just begun to tell him he could return to the dock when Murray stood up.

‘M’Lord, I have a few questions arising from an answer given by the defendant in re-examination.’

Judge van Zyl held up his hand and indicated to Labuschagne to wait. He was still in the witness box. Then the Judge turned to me and asked, ‘Do you have any objection?’

I took a neutral position. ‘We leave it in M’Lord’s hands.’

The Judge was too clever for that.

‘Since there is no objection I will allow it. But keep it short,’ he said to Murray.

When Murray turned to face the witness box, I saw disbelief on Labuschagne’s face and his shoulders slumped. His fists were clenched by his sides.

Murray got to the point immediately.

‘You said you did the drop calculations for every execution last year.’

‘Yes.’ The answer was given hesitantly.

‘You also did them on that day when you had to pull the prisoner up, didn’t you?’

‘Yes.’

‘So it was your fault that he didn’t die immediately, and that you had to pull him back up.’

Labuschagne looked at Murray in disbelief. ‘It was not my job to do those things. It was the Hangman’s job.’ He raised his voice. ‘Why did I have to do it? Why did I have to do it?’

The Judge had had enough. ‘If I had known what you were going to ask, I would not have allowed any further questioning,’ he said to Murray.

Murray sat down abruptly.

‘You may step down,’ said the Judge and Labuschagne made his way past Murray and Niemand and squeezed behind the Warrant Officer’s chair on his way back to the dock. They didn’t look at him as he passed within arm’s reach of them.

The Judge adjourned the proceedings for the long weekend. Monday, 10 October, was Oom Paul’s birthday and consequently a national holiday.

I asked Wierda to drive me to the airport so that we could discuss tactics on the way. I asked him why he thought the Judge had asked no questions.

‘We either did a very good job or he has decided the case already,’ he said.

We had four witnesses left to call. We agreed that Wierda would lead the two lay witnesses and I would lead the two experts.

I needed a break and the weekend had come just in time. I was going home.