Palace of Justice

56

Our second expert was Marianne Schlebusch, a psychologist who looked younger than her years, a smallish brunette with closely cropped hair. She gave detailed evidence of all the tests and evaluations she had performed before we turned to the topic of automatism.

‘Dr Schlebusch, could you please explain the phenomenon of automatism to the Court? We are interested in its medical and psychological aspects, please.’

Marianne Schlebusch closed her report and gave us a lecture.

‘Automatism is related to conditioned responses,’ she said. ‘You can condition a person to behave in a particular way in any given set of circumstances. At the same time,’ she cautioned, ‘you cannot do something in a state of automatism that you cannot do in a normal, functioning state, such as riding a bicycle, playing the guitar or driving a car.’

They must have wondered where we were going when she got closer to the point.

‘Killing can become a conditioned response, even killing on a grand scale,’ she said. ‘That is what we do with soldiers not far from here, just on the other side of the hill where the reservoir stands,’ she pointed out. ‘We train soldiers so that they will instinctively behave in a desired way when they are on the battlefield. The problem,’ she said, ‘is not so much in the training; almost all men can be conditioned to that extent. The problem lies in the unlearning. The problem reposes in the inability of the returning soldiers to adjust to civilian conditions when they come home after lengthy periods of combat.’

I asked her to give some examples and she said she would mention three.

‘After the First World War,’ she told the Court, ‘a disproportionate number of returning soldiers were hanged in Britain for crimes they had committed shortly after their return. At the time their condition was not understood and they were treated as ordinary criminals and some of them were executed. The second example has its roots in the Vietnam War. Returning American soldiers exhibited such varied and severe psychological disorders that the War Veterans Administration was still struggling to cope with their treatment nearly twenty years later. These men could suffer consequences for a very long time, from an inability to sleep or to concentrate or to maintain a conversation. They have violent mood swings, and react to the slightest provocation with excessive violence. They relive their experiences in the jungles of South-East Asia in the form of flashbacks day and night, at the most unpredictable times. Many resort to drugs and large numbers have committed suicide.

‘The same problems became apparent here in South Africa as soon as the first of our soldiers started returning from the war in Angola,’ she said. ‘That was in 1975, but we only started taking notice in about 1980.’

I didn’t have to prompt her and took the opportunity to watch Judge van Zyl and the Assessors closely. The journalists on my left were scribbling furiously.

‘It is now more than thirteen years since we got involved in that war,’ she said, ‘and at 1 Military Hospital we have whole wards dedicated to the treatment of the psychological scars of those soldiers. Do you want me to explain?’ she asked.

I wasn’t sure whether she was asking me or the Judge, but Judge van Zyl nodded and she continued.

‘Let me explain in more detail what happened to them,’ she said.

I looked behind me to see how Pierre de Villiers would react to this evidence. He sat entranced, his eyes on the witness box. I saw the man next to him digging an elbow into his ribs and Pierre frowning, irritated at the interruption. I had to turn my own attention back to the witness box.

Marianne Schlebusch spoke evenly, in a soothing tone, sure of her way and confident in her knowledge. ‘First we train them to handle their weapons expertly, in all conditions,’ she emphasised. ‘We drill them night and day until they can literally fire their weapons with deadly accuracy under any circumstances. We make them practise in wet and dry conditions, in sunlight and in the dark, to fire slowly and also quickly, at visible and also at hidden targets. We make them practise shooting at static targets, and then we teach them how to shoot accurately at moving targets and targets that appear suddenly, by surprise. They learn to live, eat, sleep and even to go to the toilet with their weapons always at the ready.’

I was concerned that she was taking too long to get to the point, but when I looked at the Judge and his Assessors they were watching her intently. I let her give her evidence free of interruptions from me.

‘In the second phase,’ she said, ‘we train our soldiers to react in a particular way to the circumstances they would encounter in the field. Every man in the platoon is given a specific role and not only must he perform under all conditions, the rest of his platoon must know that they can rely on him to do his job while they do theirs. For example, they are taught that if they are on patrol at dawn, they must set up a perimeter and arrange their sleeping bags so that they form the spokes of a wheel with every soldier facing outwards. And then we train …’ She corrected herself, ‘No, we order them to shoot everyone and everything that moves outside their circle. In the field at night they lie in that situation of heightened tension and anticipation of danger and we have found that they do shoot anything that moves outside their circle, whether it is a genuine threat or not. The training pays off, but now and then it has unintended consequences. Soldiers conditioned in this way have shot members of their own platoon who had slipped out for a cigarette and they have shot many innocent civilians who just happened to be in the wrong place at the wrong time.’

The Judge was beginning to fidget. Marianne was taking a bit longer than I had planned and I asked her to deal more specifically with Leon Labuschagne’s case.

‘What I think happened here is very similar,’ she said. ‘Over the last eighteen months before the events at the reservoir Labuschagne was invested with a conditioned response. He had already become expert at handling and firing his pistol, but the prison also conditioned him to kill. It doesn’t matter that the killing was lawful; he still had to overcome the natural inhibition we all have to killing a human being.’ She slowed down as she spoke with emphasis. ‘His active and very physical participation in the killing process, coupled with the tasks he had to perform in preparation for the killing, such as taking the measurements and calculating the drops to the nearest inch, cleaning and servicing the gallows equipment, turned him, in his subconscious mind, into a killer. In his own mind he sees himself as a killer.’

I stole a glance at Labuschagne to see how he was reacting to the evidence. He sat with his head up and eyes closed, but I could not help noticing that he was on the edge of the wooden seat in the dock. He might have feigned disinterest, but he wasn’t fooling me. He had stopped rocking.

Marianne took a sip of water before she continued. I had to lead her evidence by asking the appropriate questions, but she needed very few cues from me.

‘How did you say he sees himself? And could you explain, please?’

‘He sees himself as a killer,’ she said, ‘but he is at war with himself over that. And then we have the disintegration of his psyche in the weeks before the incident at the reservoir. This escalated dramatically in the last two weeks before the tenth of December. His wife left him together with their child and all his efforts to see them were thwarted. His emotional attachment to Wessels made matters worse when he was required to assist with that execution. The sheer number of executions and the other things that went wrong in that last week brought him closer and closer to the point of breakdown. His emotions were running amok and, to top it all, he had suffered a head injury that was severe enough for him to lose consciousness. He was dehydrated after all that physical exertion in the sun at the cemetery, then there was the drive in the rainstorm, the aggressive response from the other driver and their reckless game of tag all the way to the reservoir. All of these contributed to bring him to the point where he was on the verge of a mental breakdown. He was,’ she said, ‘at the end of his reach and on the verge of the disintegration of his psyche.’

She paused again and took another sip of water.

The spectators craned their necks to hear better as Marianne explained that something must have happened at the reservoir to push Labuschagne over the edge into an abyss of such depth and blackness that even psychologists and psychiatrists could not predict with any degree of accuracy how he would respond to any new stimuli.

‘Some event must have occurred that triggered a violent, conditioned response,’ she said. ‘The fact that the dead bodies were arranged in a neat line next to each other shows that in his subconscious mind he was at work in the gallows chamber. The trigger event does not have to be an important or otherwise significant event. It could be something ordinary, an everyday occurrence, entirely innocent on its own.’

I waited for Judge van Zyl to finish his note taking and then asked Marianne for her concluding opinions.

She started by expressing the opinion that Labuschagne had acted in a state akin to an acute catathymic crisis. She explained that as a condition where the person in the grip of the crisis acted in accordance with the overwhelming dictates of his emotions and lost intellectual control over his actions.

‘Such a person would have no memory of the events because the memory function of the mind is an intellectual function,’ she explained, ‘and when the intellect is turned off, the memory is also turned off. That is why he cannot remember what happened at the reservoir, his mind was literally absent,’ she said.

‘Were there any other indications of a loss of memory?’ I asked.

‘He also has no memory of the newsworthy events of that week,’ she added. ‘We had three significant events and during our psychometric testing he has demonstrated no memory of any of them. But that loss of memory is of a different nature. It had been caused by Labuschagne’s progressive loss of grip on reality. His mind was too preoccupied with other things to concern itself with the world outside.’

Judge van Zyl asked what the events were. She mentioned President Reagan’s historic meeting with Mr Gorbachev in Reykjavik; the South African Airways 747, the Helderberg, crashing into the sea near Mauritius; and a female spy who had been caught and tortured by the Zimbabwean police. These events had made the news worldwide, but when she ran her tests Labuschagne had no memory of them.

‘This shows,’ she said, ‘that he was no longer in touch with reality during that last week; he was disengaging from the reality with which he could not cope. His memory of events that week is fragmented.’

I thanked her and sat down in anticipation of the cross-examination, but Judge van Zyl asked a question I had not considered.

‘What do you say about his interaction with Tsafendas? How did that affect his state of mind, in your opinion?’

‘M’Lord,’ she said, ‘the fact that he believes what Tsafendas told him, and that Tsafendas appears to him to be sane, shows that what the rest of us know to be insane nonsense, he experienced as logical and truthful. His mind was beginning to play tricks on him, a very sure symptom of the beginning of dissociation, the breakdown of the psyche that led him to complete psychological disintegration at the reservoir.’

After a long and pensive pause the Judge told James Murray that he could start his cross-examination.

It was war, but not one fought with anger and aggression. No, James Murray was too good for that. He employed subtlety and guile. We were in for a torrid afternoon and would have to wait and see if our expert witness could defend her opinion.

‘There had to be a trigger event, you said, a final trigger event that set in train this cascade of killings, right?’ Murray looked at Marianne Schlebusch for confirmation.

‘Yes,’ she said calmly. ‘Although the stress had built up over time and through a number of different events and circumstances, there still had to be a final event or stimulus that caused his psyche to break down completely. It doesn’t have to be a big event, but it has to be significant in the sense of being in consonance with the cause or causes of the disintegration of his psyche.’

‘And he says,’ Murray paused and pointed with his arm in the direction of the dock, but without looking, ‘he claims that he does not remember what happened at the reservoir to cause him to act as he did.’ It was a statement of fact rather than a question, and we could all still remember the defendant’s evidence vividly.

‘Yes,’ she confirmed.

‘So you can’t say with any degree of certainty what the trigger event was, can you?’

‘No, I can’t,’ Marianne conceded. ‘I have said so from the beginning. It’s in my written report too.’

‘And it follows,’ said Murray, the terrier in action, ‘that if you can’t say what the trigger event was, you can’t be sure there was a trigger event, doesn’t it?’

‘No,’ she said, ‘there must have been a trigger event. Something must have happened that in his mind was linked to his work in the prison.’

‘Even though you can’t tell the Court what that trigger event was?’ said Murray. Sarcasm and incredulity dripped from his words.

Marianne Schlebusch whispered the answer but stood her ground. ‘Yes.’

‘Your opinion depends to a large extent on the credibility of the defendant, doesn’t it?’ Murray suggested.

‘Yes.’

‘And he could easily fake a lack of memory, couldn’t he?’

‘He could fake it, but not easily,’ she said, responding to the challenge. ‘All of our tests have built-in lie detection processes.’

Murray leaned down to speak to Sanet Niemand. She handed him a slip of paper and he studied it carefully before he read the question she had given him.

‘And if he has successfully misled you, as you have just conceded was possible, then the meticulous arrangement of the bodies at the reservoir after he had killed them would take on a very sinister aspect, wouldn’t it? It would mean that he was sending a message to the world, wouldn’t it?’

Marianne considered the question carefully before she responded. ‘Only if he has successfully misled me and had beaten all the subtle traps in our tests,’ she said. ‘But the prospects of that happening are remote.’

Murray shrugged – I don’t think he meant anyone to notice – and tried another approach.

‘There is also the accuracy of the shooting to explain,’ he said. ‘You’ve not explained that. How could anyone fire with that degree of accuracy while acting in a state of automatism?’

She had watched him intently as he framed the question. ‘M’Lord,’ she said slowly, ‘in a situation like this, when mental functions are disintegrated, the accuracy of his actions would depend on the mental explosion and the force of the explosion and the ingrained or learnt behaviour. Once the explosion has occurred, the learnt behaviour takes over. The accuracy of the shooting is learnt behaviour, which is a conditioned response, and the fact that the shooting was so accurate actually demonstrates that there had been such an explosion.’

Murray could not believe his ears. ‘Are you saying that the accuracy of the shooting actually supports your theory that he didn’t know what he was doing?’

‘Yes, M’Lord,’ she said. ‘Who would be able to shoot so accurately in the circumstances that must have prevailed at the reservoir, unless the shooting was a conditioned response?’

Murray tried to retrieve the situation. ‘But you would still have to have a trigger event that sets the conditioned response in motion, don’t you?’

‘Yes, I’ve said so.’

‘And you have said that you don’t know what the trigger event was.’ He was rubbing it in.

‘Yes.’

Murray started a new line of cross-examination quietly and without fanfare. ‘You only have his word for what happened at the reservoir, don’t you?’

Marianne Schlebusch took her time before she replied. ‘I don’t know that anyone else can tell us what happened there,’ she said.

‘What I’m getting at,’ said Murray, ‘is that if his version is found to be untrue or unreliable your opinion will have been based on an incorrect set of facts.’ It was a statement, not a question, but it invited an answer.

‘I haven’t caught him in a lie.’ She shook her head and wiped a hand across her brow. ‘Everything I have heard during the trial is consistent with what he has told me.’ She gave Murray a small concession, ‘But what you say is true in principle.’

Murray turned a page in his notes. Marianne Schlebusch watched him with the eye of a trained observer. I wondered what she thought of him and, for that matter, of me. She stood watching Murray and her eyes drifted down to the notes on his lectern. Her attitude said, How many more questions do I have to answer? We were all exhausted; I wasn’t the only one.

Murray took his time before he embarked on his next topic. ‘The defendant collected a washer from the coffin of each prisoner he had escorted to the gallows. That we know from his own evidence. My first question is this: did he tell you about that?’

‘No.’

‘So you heard about that here in court for the first time?’

‘Yes.’

‘The defendant withheld that information from you.’

‘He didn’t tell me and I didn’t know to ask.’

‘His collection of those washers is inconsistent with your evidence that he was traumatised by the hanging process, isn’t it?’ It was a good point, I thought, but not unanswerable. What if collecting the washers was entirely consistent with his steady descent into inappropriate behaviour? And for that we could blame his work.

I watched Marianne closely. She scratched the side of her nose and turned towards Murray to engage him in the debate, but the Judge intervened to remind her to face the bench.

She obeyed immediately. ‘I disagree, M’Lord. Obsessive-compulsive behaviour of that kind is entirely compatible with the trauma that he suffered. In the beginning he might have collected the washers because his peers were doing it, but later he would have been unable to stop himself. The culture of the prison had become part of him.’

Murray was entitled to be displeased. This was the last thing he would have anticipated. He had to change the topic of his questions or sit down on an unfavourable answer. He did the former.

‘There are parallels between this case and the cases of the two soldiers in the Eastern Cape and the two Johannesburg policemen who went about killing black people, aren’t there?’

It was a question that had preyed on my mind from the first day when Roshnee had come to my chambers to ask me to undertake the defence. Our witness had to concede.

‘Yes,’ she said.

Murray wrapped the point up quickly. ‘And if what the defendant told you is untrue, then we would have every reason to think that he’s no more than a racist murderer, wouldn’t we?’

‘That is for the Court to decide,’ she had the grace to concede.

‘I have no further questions for this witness, thank you, M’Lord.’ Murray sat down after the favourable answer.

I was about to say that I had no re-examination when the Judge spoke. ‘I wonder if I could ask you to elaborate on a few matters that are still unclear to me.’

‘Certainly, M’Lord,’ said Marianne. I sat down and watched.

Judge van Zyl started with an observation. ‘I watched the defendant very closely when he gave evidence and I don’t know whether he was acting or not when he said that he couldn’t believe that he could have done what he did at the reservoir. He said it more than once. How would that fit in with your theory, if that reaction is not faked?’

‘M’Lord, this is a known phenomenon in psychiatry and very typical of a catathymic crisis. We say that the patient experienced events as unreal, ego dystonic. In other words, the patient cannot understand how he could have done something like that. The event clashes with his own perception of himself.’ She looked at the Judge. ‘I hope I’ve made it clearer rather than confusing the issue.’

‘Thank you, I think I followed that,’ said the Judge. ‘My next question relates to the defendant’s behaviour after his arrest. We learned here that he wouldn’t speak to anyone, not even his parents, for months. Why would he do that?’

‘It is not uncommon in this kind of crisis that for a long period the patient is devoid of emotion and withdraws into a cocoon of silence. We have to treat that, of course, because the patient cannot hope to be able to deal with the reality of the current, post-crisis situation unless he learns to accept what he has done and to live with the consequences.’

Judge van Zyl looked up at the spectators in the balcony at the back of the court, but his eyes were not focused on them. Something was troubling him, it appeared.

‘How certain are you that the defendant has told you the truth about his work?’ he asked at last.

There was an even longer pause. Marianne bit her lip and I saw just the slightest shake of her head.

‘You don’t appear to be certain,’ said the Judge, but his tone was not unkind.

She sighed and a small crack opened in the facade of our case. The Judge opened it wider. ‘Please tell us what doubts you have.’

‘I think his work gave him satisfaction,’ she said. The answer was as enigmatic as it was vague.

‘He did his job willingly and it made him feel good, is that what you think?’

‘Yes.’

Wierda whispered under his breath, close to my ear, ‘Fuck!’

Judge van Zyl had not finished either. His next series of questions had nothing to do with guilt or innocence.

‘I’d like to hear your comments on another aspect, Dr Schlebusch,’ he said.

Marianne was an attractive woman and Judge van Zyl had turned his charming side to the witness box.

‘It appears from the evidence that the gallows escorts are all young men in their early twenties. How is the work they have to do going to affect them in the long run, in your opinion?’

It was a question Wierda and I had been afraid to ask. The answer could so easily go against our client. What if the other warders coped perfectly well with their situation?

‘M’Lord,’ she said, ‘how this type of work would affect an individual escort would depend on a number of circumstances, of which two factors are perhaps more significant than the others. The first is that they may develop a dependency on the adrenalin rush the process induces. The other is whether they receive appropriate counselling on a regular basis.’

The Judge watched her as she added, ‘I could elaborate if you want me to.’

‘Thank you,’ he said. ‘Perhaps you could tell us what you mean by developing a dependency? Are you saying that a person could become addicted to killing in this way?’

The question had come out in a particularly menacing way, for the defence, but the Judge’s tone was inquisitive, not suggestive, and I didn’t quite know what to make of his line of questioning. Wierda and I knew very well that Labuschagne had confessed to us that he had become addicted to escort duty.

Marianne Schlebusch gave another lecture. ‘M’Lord, you can develop a dependency on killing just as you can become dependent on alcohol, or drugs, or tobacco, or even sex.’ There was a semi smile on her lips when she continued, ‘A dependency can be created deliberately or accidentally. It is created accidentally when repeated use of the substance or participation in the event leads to an addiction to the effects that the substance or activity produce. It is deliberately created if the subject is manipulated in such a way that the dependency is created in a controlled fashion. I could give two examples. The first is a medical example. Some orthopaedic surgeons deliberately create a dependency on opium-based painkillers in patients who have suffered severe injuries that produce chronic pain of such severity that the patient is in danger of suffering psychological damage. The opiate dependency is not in itself the desired end result but a means to treating the patient. The philosophy behind it is that it is easier to cure the patient of the opiate dependency later than to cope with the psychological fallout from chronic, unbearable pain.’

The court had again become very quiet. Marianne did not speak very loudly and her voice could not have carried beyond the first few rows in the public gallery. Everyone was straining to hear. She waited for a hint from the Judge and when he lifted his pen, she continued, ‘The second example is in the training we give our soldiers, especially the men in the Special Forces such as the Parabats, the Navy divers and the Recces. We train them for special activities that produce large amounts of adrenalin in their bodies and they become addicted to those activities or, should I say, they become addicted to the adrenalin and in order to obtain it they initiate the activities concerned. They want to jump out of the aircraft when every sane person – I should not use that word, because they are all sane soldiers – when every ordinary person would baulk at the thought of jumping out. The same goes for the divers, they want to go down into those cold, murky and dark waters when the rest of us are too scared to go anywhere near.’

She wanted to say more but the Judge stopped her. ‘We get the point,’ he said. ‘What these specially trained men do is to participate in extraordinary and dangerous activities and they look forward to it. Is that what you are saying?’

‘Indeed, M’Lord.’

Judge van Zyl received a nudge from the Assessor on his left. ‘What was the other factor you mentioned?’ he asked.

‘It is whether counselling is available, M’Lord,’ she said.

‘Tell us about that, please.’

Wierda had stopped taking notes. I pretended to write down every word but was more concerned about the direction of the Judge’s questions. I did not like the idea that control over the evidence was slipping away from me.

‘The escorts should have received regular counselling and should not have been threatened with dismissal or punitive duties or any form of disciplinary action if they availed themselves of counselling.’ Marianne turned her head to look directly at the Warrant Officer, but he avoided her eyes and sat staring at James Murray’s back.

‘How would counselling help them? I mean, can a counsellor really do anything for someone with this kind of job?’ asked the Judge.

‘They can indeed, M’Lord. They can help by encouraging the subject to speak, to talk about his experience and by talking about it to start processing it and coming to terms with his fears and anxieties and feelings of guilt or even inadequacy. You must remember, M’Lord, that what is expected of these escorts in the prison is an attitude and behaviour that would not be acceptable outside the prison gates. Inside they are expected to be controlling, harsh, even cruel, and then, as soon as they are outside the gates, they have to turn into sympathetic husbands and dutiful fathers, or into obedient sons. To make that change is not easy to manage without counselling. In fact, I think it’s impossible and this case is proof of that.’

At last she had come up with a fact clearly in our favour.

The Judge had no more questions and invited us to ask any questions we might have arising from the exchanges between him and our psychologist.

I had one question. ‘How is the evidence you have given about counselling to be applied to the defendant from this time forward?’

‘Oh,’ she said, ‘M’Lord, I think he’s the lucky one, the one who has escaped from the oppression of the code of silence they have in the prison. He has escaped by talking, first to his lawyers, then to me, and now to the Court. He has by the force of his circumstances been compelled to confront his own actions in open court, here in front of his parents and the public, and in front of the relatives of his victims. He has progressively told more and more, disclosing the most intimate details of his actions and his life. He has been castigated in cross-examination.’

Marianne stood silent for a good ten seconds before she added, ‘I would never have thought of cross-examination as therapy, but I think the court process may have been as good a psycho-therapeutic session as my profession could ever hope to achieve. He has been forced to talk about his worst experiences and to do so in public. It doesn’t matter that he had no choice; what matters is that he has talked about it.’

I sat down immediately.

James Murray had only one question. ‘He told his lawyers more than he told you, and he told the Court more than he told his lawyers. It would appear that there is probably a lot more that he could tell, but hasn’t. Do you agree?’

She did not have to think long about the answer. ‘Yes, of course,’ she said, driving another nail into our case.

Judge van Zyl conferred briefly with his Assessors before he told Marianne that she was released from further attendance. When she walked past me I held up my hand and whispered for her to wait. It was just as well, because James Murray asked for permission to recall Dr Shapiro for further cross-examination and the Judge granted it.

I took notes as the battle of wits continued.

Murray wasted no time after Dr Shapiro had been reminded that he was still under oath. ‘You were in court while the previous witness gave her evidence?’

‘Yes.’

‘You heard her opinion that the defendant enjoyed participating in the killing process and that it was addictive.’

Dr Shapiro nodded his answer.

Murray didn’t wait for an audible answer. ‘It follows that the defendant’s evidence here was not true when he said that he did not and only took part because he had no choice, doesn’t it?’

Dr Shapiro was stoic in his response. ‘Yes.’

‘You must have noticed too that Miss Schlebusch changed her own evidence. She first said that she had not detected any untruthful answers and that her tests did not reveal any. Yet she admitted to having some doubts and that she formed the view that the defendant probably enjoyed participating in the hanging process.’

‘What is the question?’ asked Dr Shapiro. He stood upright but very still in the witness box, his eyes on James Murray, his hands held together in front of him. ‘What is the question you want me to answer?’ he insisted.

Murray obliged. ‘I would like to suggest to you that you cannot form a reliable expert psychiatric opinion in this matter when the defendant has been untruthful in some respects and has not taken the Court completely into his confidence.’

Dr Shapiro turned very slowly towards the bench and when he spoke it was in even, professorial tones as if he was lecturing a class of undergraduate students.

‘Your Honour, there is something I should perhaps explain before I answer.’

Murray shifted and was about to interrupt, but the Judge stopped him with a raised hand and a shake of the head. When Dr Shapiro spoke again I wrote down every word. I was glad to see that the Judge and both Assessors were doing the same.

‘You see, Your Honour, when you have to report to the Court on the mental state of a person the process you adopt is at once scientific and intimate. Where it is scientific it is objective, but where it is intimate it is subjective. Indeed, one has to form an intimate relationship, for want of a better word, with the patient in order to gain a complete understanding of his psyche. When one does that, I mean the psychiatrist or psychologist who conducts the investigation, one cannot help but become subjectively involved with the patient’s dilemma. No one, except perhaps a psychopath, a person without feelings for others, a person without the ability to connect with others on an emotional level, can avoid being affected by the crisis that the patient faces.’

Dr Shapiro’s eyes swept the room from corner to corner. ‘What happened here is that in Miss Schlebusch’s initial opinion the objectivity to which we strive may have given way to that subjective element I’ve tried to explain. But we are trained to resist and overcome that kind of personal involvement – call it taking sides, if you will. And it appears to me that she did just that when the prosecutor’s questions steered her in the direction where she made the concession that the defendant in her opinion probably enjoyed his work in the gallows chamber.’

‘So the truth eventually came out?’ said Murray.

Dr Shapiro had been cross-examined before, and by lawyers in a far more sophisticated system where capital cases were handled by only a select few, the most gifted and skilled, the most experienced members of the legal fraternity. He had the perfect answer.

‘Yes,’ he said, ‘our systems are designed to achieve exactly that, for the truth to be revealed.’

The thought crossed my mind that the legal process was designed to do much the same, to uncover the truth, but we had the same weaknesses, having to work with unreliable evidence and with our own loss of objectivity. We are particucarly vulnerable when we have to decide who or what to believe, and we are so easily misled. I looked up at Judge van Zyl to determine whether he might have noticed the parallels between his job and that of the psychiatrist, but he gave no indication either way.

James Murray wrapped up quickly.

‘So the defendant enjoyed participating in the hangings, and he was untruthful in his evidence on that score. Would that be a correct summary of your opinion?’

Dr Shapiro was slow and deliberate in his answer. ‘I prefer to say that he gained some satisfaction from his participation in the execution process, that he probably did his job very well and received recognition for that, which satisfied his Calvinistic sense of duty. But he did not enjoy it in the sense that a sadist enjoys inflicting pain. And that is why in his own mind he cannot admit that he has participated willingly in all those executions. His mind looks for an excuse and he finds it in the idea that he was forced to do it, or had no choice.’

Murray left his final point unspoken, and was later to use it in his closing address. If Labuschagne could be untruthful about his willingness to participate when the killing was lawful and sanctioned by a death warrant issued by a Court of Law, how much greater the motive to lie about the killings at the reservoir, which were not sanctioned by the law and did not occur in circumstances of self-defence?

Nevertheless, the American had served our cause well and I nodded my appreciation as he came past.

It had been a long session, and I had been operating at the extreme limits of my concentration and stamina. Although we had reached the end of the defence case as we had prepared it, we had one more task to take care of before we could move on to argument. It would be the last roll of the dice for us, but I was confident that no matter how the dice came to rest, our case couldn’t get any worse.

I asked the Judge if we could see him in chambers.

Wierda and I walked through the back passages to the Judge’s chambers with the prosecutors, the usher leading the way.

Judge van Zyl’s chambers were furnished with the same heavy wooden furniture as the courtroom. The wall behind his desk was covered from the floor to the ceiling with solid bookshelves filled with Law Reports, textbooks and journals.

‘What’s the problem?’ he asked. He was undoing the cummerbund of his elaborate scarlet robes. When he’d finished at last he sat down.

‘I would have thought you’d close your case now.’ He was looking at me.

‘I need another inspection, Judge,’ I said. ‘At the reservoir this time.’

‘Won’t the police plan and photographs do?’ he inquired.

‘No, I am afraid not,’ I said. I did not explain.

He turned to James Murray. ‘What do you say, James?’

‘It’s their case,’ Murray said.

Judge van Zyl smiled at me. ‘You heard that – it’s your case,’ he said. Then, as an afterthought, ‘You know, I grew up in the southern parts of the city, but I’ve never been up there. Maybe it’s time for me to see the place.’ He spoke softly, in his chambers voice. There was none of the formality of the courtroom and no need for his voice to carry to the last row of spectators.

‘May we make transport arrangements for you and the Assessors then?’ I asked, but the Judge said that they would make their own arrangements.

Murray then cleared his throat. ‘Judge, we would like to call an expert witness in rebuttal, but he can only attend in the morning, so I was hoping that we could take his evidence before we go on another inspection.’

‘How long will he be?’ asked the Judge.

‘No more than an hour, I think.’

‘And the inspection, how long do we need for that?’ The Judge looked at me.

‘We’ll finish by lunchtime,’ I answered immediately.

I was keen to get agreement without having to explain why I wanted to go to the reservoir, but I saw Murray shaking his head. The Judge must have seen the slight shake of the head too and he asked, ‘You don’t agree?’

‘It is not that I don’t agree, Judge, it is that I have a second witness to call in rebuttal and I think he will be a while.’

‘Oh, who do you intend to call?’ Judge van Zyl appeared as surprised as I was.

‘We want to call the Warrant Officer.’

For a moment I did not know what to say. Wierda and I had toyed with the idea that the prosecution might call the Warrant Officer at some stage, but we had dismissed the thought because the Warrant Officer’s name did not appear on the list of prosecution witnesses and no mention had been made of his evidence during the prosecution’s opening statement or cross-examination of our witnesses. It must have been an afterthought.

‘I would object to that,’ I said, thinking on my feet as I was speaking. ‘You can’t call witnesses in rebuttal except where the defence bears the burden of proof on a special defence, or where the evidence is of a technical nature or involves expert opinion in response to defence expert evidence.’

‘I’m going to call him on the facts underpinning the expert opinions, yours and mine.’ Murray sounded confident and addressed me directly.

Before I could respond Judge van Zyl intervened. ‘I’m going to allow that.’ He looked down at his hands. They were palm down on his desk with his fingers spread wide. ‘I am going to allow it unless you convince me otherwise tomorrow when we start. And then you had better have good authority that says I can’t do this. I would like to hear what the Warrant Officer has to say.’

I wanted to continue arguing the point, but there was something in his eye that made me stop. I could address him on the point in open court in the morning; it would not be so easy to silence me then. But it would not be easy to persuade him to change his mind either.

‘We’ll resume as usual in the morning then, and take it from there,’ he said. ‘We’ll hear the rebuttal expert James wants to call, and then go on the inspection. We can hear what the Warrant Officer has to say when we get back.’

We walked back in silence to the robing room. Murray and Niemand must have been wondering what we were plotting as much as we were with regard to them.

Wierda and I had been working on the closing argument from our first meeting months before. Up to now all we needed to do was to finalise a few details, but now we would have to think of the different angles that might be introduced by the further evidence.

We left Murray and Niemand in the robing room.

Wierda walked me back to my hotel and told me about our last case as we strolled among the workers and shoppers on their way home. We had had a relatively good day and the city was serene in the late afternoon, but we still had a lot of work to do and the forthcoming evidence of the prosecution expert and the Warrant Officer added an element of uncertainty I could have done without.