CHAPTER 46: In pursuit of a wider justice: ‘Do it!’

CHAPTER 46

In pursuit of a wider justice: ‘Do it!’

ON THE TUESDAY FOLLOWING THE FUNERAL, HELEN SUZMAN, MP for the Progressive Party, caused a furore in Parliament by reading out Maurice Smithers’s smuggled note. His sister had driven to Cape Town to hand it to her personally. They met at night in the centre of Cape Town, in what Suzman later described as a ‘cloak-and-dagger business’.1 She needed a magnifying glass to read it, and then waited for the parliamentary debate on the Rabie Commission report. Justice Rabie had not spoken with any detainees or ex-detainees before pronouncing his satisfaction that they were adequately protected through visits from magistrates and inspectors. Suzman asked the Minister of Police Louis le Grange whether he could give categorical assurance that ‘inhuman and degrading methods of interrogation’ were not being used by the security police. ‘Yes, I can give that assurance,’ Le Grange replied. Having got the Minister to repeat his assurance, she then asked if he could verify an allegation that had come to her notice. Withholding the name of the note’s author, simply saying that it came from a detainee, she read Maurice’s account of Neil being held naked and beaten ‘with a belt or with a rolled-up newspaper’. Only at the end of the account did she reveal that the man ‘who was allegedly subjected to this inhuman and degrading treatment was Dr Neil Aggett at John Vorster Square. I ask the Minister to investigate the truth of this allegation.’2 Had she mentioned Neil’s name at the beginning, the Speaker would undoubtedly have stopped her on the grounds that the matter was sub judice even though an inquest had not yet been announced.

Maurice’s letter was a bombshell. Le Grange repeated at least twice, ‘that can definitely not be true’. Fully expecting that her speech would be struck out of the Hansard record, she had already handed a copy of it to a reporter from the Argus group. By evening, it was in the newspapers and in the public domain. Both the ministers of Police (Louis le Grange) and of Justice (Kobie Coetsee) were furious, launching accusations that the letter she had read was fabricated. With calls to name her source, Suzman declared she would first require proper assurances that the note’s author would not be victimised. However, the response that she found most ‘extraordinary’ was that of Adriaan Vlok, a National Party MP who would become Minister of Law and Order in 1986. Why should Suzman be concerned about solitary confinement and the loneliness of detainees? ‘In the same breath she says they are interrogated for hours. I want to ask her – in that case when are they lonely?’3

In her terrier fashion, Helen Suzman went on to raise questions in Parliament about the postmortem. Had the Aggett family been informed about the postmortem? What time had it commenced, and had the Aggetts’ private pathologist been present at commencement? Declaring that he was treating the matter as sub judice, the Minister of Justice, Kobie Coetsee, wouldn’t comment. Nevertheless, the pressure was on, and on the same day the Chief Magistrate of Johannesburg announced that an inquest would be held as soon as possible. In a ‘Darling All’ letter the following week to her family abroad, Suzman wrote of being in the government’s ‘dog-box’. She had been obliged ‘to work a very cunning trick’ in order to ‘use this information in Parliament because otherwise it could never have been published owing to the Police Act and the Prisons Act’.4

The Detainee Parents’ Support Committee continued to express concern over the medical supervision of detainees. In a telegram to the Minister of Justice, it pressed that all detainees be examined by, and have access to, an independent panel of doctors. The Minister refused. On Monday 1 March, the DPSC sent the Minister a further telegram:

How many detainees have been hospitalised? For what complaints are they being treated? Have their families been informed? Has the Minister taken any steps to alleviate the conditions leading to their hospitalisation? Has the Minister taken any steps to modify interrogation techniques?

The Minister replied tersely, also by telegram: ‘I am not prepared to take part in a organised question and answer campaign by telegram.’5

The inquest date was set for Tuesday 2 March at the Johannesburg Magistrate’s Court. With a foundation stone laid in 1936, the court building covered the equivalent of four city blocks. Each of the entrances on the north, west and east side was dwarfed by columns soaring up to a three-storey-high lintel. The more ordinary southern entrance, however, was reserved for black people. Despite being constructed before the Afrikaner Nationalists took power, the design consciously reflected everyday apartheid, as in this 1941 comment:

The native and Asiatic witness-rooms are so placed that these people have no need to use the public concourse or the European section.6

Hundreds of thousands of people had passed through these courts for falling foul of the pass laws and other draconian legislation. In the 1950s, the attorney offices of Nelson Mandela and Oliver Tambo had been situated in Chancellor House, directly opposite the northern entrance of the courts in Fox Street. After his arrest in 1962, Mandela was due to be tried here until a last-minute switch of venue to the Old Synagogue Court in Pretoria where he had stated from the dock that he had been made a criminal by the law, not because of what he had done ‘but because of what I thought, because of my conscience’.7

Conscience was what had brought thousands to be sentenced here during the Defiance Campaign and for many subsequent acts of resistance.8 Conscience lay at the heart of Neil’s political choices, which had placed him on a collision course with the apartheid state. Whitehead had dreamt of nailing Neil in the dock, a ‘criminal’. While those plans had gone awry and there was an inquest rather than a trial, the contest was far from over. In Advocate Bizos, the Aggett family could not have asked for anyone who understood more clearly the nature of the battle ahead to lead the team representing the family of a young man of conscience against a brutal, corrupt, depraved security force. The full team was now assembled, with Denis Kuny as junior counsel and Mohamed Navsa as his pupil, while William Lane as senior attorney had David Dison as his junior and a young articled clerk, James Sutherland.

Jill attended the opening of the inquest on behalf of the family. Her parents had returned to Somerset West, having been advised by their lawyers that it would only be a short hearing. The small courtroom was filled to the brim. Local and international reporters crammed into the press benches, while DPSC supporters, who had earlier mounted a placard protest outside the courts, packed the gallery, leaving standing room only in the aisle and doorway. George Bizos opened with an application for a postponement, stating that Neil’s fellow detainees would have ‘vital information’ relating to the inquest, and without access to them and their testimony it would not be possible ‘to make a meaningful contribution to the proceedings’.9 He also wanted the legal team to make an immediate inspection of the cell in which Neil had died, as well as the adjacent cells and the interrogation rooms. The magistrate, Lourens de Kock, baulked at the latter, insisting that the authorities would have to be given time to make alternative arrangements for detainees before any inspection. Bizos made no headway with arguing that the purpose of the inspection was precisely to see things as they were, not rearranged.

It was, as the lawyers predicted, a short hearing. After 35 minutes, the magistrate reluctantly agreed to postpone proceedings until 13 April. At this stage, the family and its legal team had not yet seen the affidavits from both the security and ordinary policemen charged with looking after Neil. The magistrate assured them that these would be made available straight away, while Piet Schabort, Senior Counsel for the Minister of Police, with Schalk Burger as his junior, said that he would need to seek instructions regarding interviews with detainees and an inspection in loco.

Advocate Bizos had begun with a bold move. Even if they managed to get affidavits from Neil’s fellow detainees, they would still have to argue their relevance to the inquest. It was a strategy that came with a high price for the Aggetts. They would have to accept the police version of suicide, something that Aubrey had instinctively rejected. But the legal team had their reasons.

Eleven years earlier, George Bizos SC and Isie Maisels QC had jointly represented the Timol family, arguing that the young teacher had been directly killed by his interrogators. The police version was that he had jumped out of the tenth floor window to escape betraying his comrades. To support this, the security police had concocted a fake document, supposedly issued by the South African Communist Party, exhorting its members to commit suicide when necessary:

Rather commit suicide than betray the organization … Vorster and his murderers will not halt our people when we have comrades like Archbishop Hurley, Rowley Arenstein, Vernon Berrangé, Isie Maisels, M.D. Naidoo, George Bizos and others who have been fighting with us since the days of Rivonia.10

The collection of names was a giveaway and, quite correctly, the police counsel regarded it as defamatory to link a Roman Catholic bishop and lawyers prominent in defending political activists to the banned Communist Party. Hence, instead of presenting the document as state evidence, the police counsel had shown it to Bizos and Maisels, saying that he would not be using it. Nevertheless, on behalf of his police clients, he continued to put forward the argument that Ahmed Timol, as a good communist, was prepared to die rather than betray his comrades. Unsurprisingly, the magistrate had accepted the police version of Timol’s death and concluded that no one was to blame.

In planning their approach, the Aggetts’ legal team had taken the Timol experience into account. If they tried to prove the police had physically killed Neil, without any witnesses who could offer direct evidence, they would end up losing. However, if they accepted that Neil’s death could have been suicide and that his death had been induced by the circumstances under which he had been held and interrogated, they could open up a wider inquiry. The magistrate would be under greater obligation to admit the evidence of fellow detainees. Although suicide was not an offence under South African law, those responsible for inducing a person to commit suicide might be held criminally liable.

The lawyers knew from experience how hard it could be for the family to accept that their loved one might have committed suicide. The findings of their pathologist, Dr Botha, were compatible with possible suicide and didn’t offer any concrete evidence to prove otherwise. It was, however, the copy of Zorba the Greek, lying open at the passage about the unending cycle of life and death, that made George Bizos inclined to believe Neil might have taken his own life. Writing about the Aggett inquest, he records how they put the problem to Aubrey. They explained that if they adopted the view that it was suicide, a number of possibilities would follow. The police might be held legally responsible. The evidence of other fellow detainees, interrogated by Cronwright’s same team, might become admissible. The inquest would thus become more of an indictment against detention without trial. Joy had been in tears, ‘hardly in a state to take part in the decision’. Bizos recalled Aubrey’s reaction: ‘He looked at me sternly. I was not sure what was going through his mind. He looked at his daughter Jill, who nodded. With a deliberate and almost a commanding voice, he said, “Do it.”’11

Recollecting the same scene, in an interview in Oxford in 2011, George Bizos spoke of how Aubrey had required them to explain ‘over and over again the legal niceties’:

I said, ‘Mr Aggett, I know how difficult it is, but in order to prove this, for the benefit of others, we have to, in the alternative, assume that he committed suicide and enquire as to why he was pushed and to the extent he was pushed … and when he understood, he said, ‘I trust you. Do it.’ He was very angry. He called them bastards. ‘Do it to these bastards!’ Changed his view.12

From this early encounter, George Bizos quickly gauged Aubrey’s strength of character and that this was no easy client. As he got to learn more about Neil, he would have sensed that, however different their outlooks, there were also essential character connections between the young man with his uncompromising principles and this deeply conservative, no-nonsense father. Bizos was keenly aware of the tragedy for this particular family: ‘I felt that he [Aubrey] had feelings of guilt about their relationship but he took a very brave decision.’ Whatever its divisions, this was a family that retained deep bonds. Jill had ‘this sort of brotherly, filial, love for her brother’. Their advocate had been moved by their plight.

At the very end of our interview in Oxford, almost as we were going through the door, not hiding his emotion, George Bizos repeated Joy’s words: ‘They could not understand my sensitive son.’ The depth of his sentiment, in remembering events of some 30 years ago, was a strong reminder of how the lawyers who undertook political cases were directly exposed to the personal stories. They too had to find ways of coping with the emotional toll.

In the coming months of the inquest, the lawyers would inevitably learn more about Neil himself. Through David Dison, they would come to know something of Neil’s complexity, of someone who was ‘very, very idealistic, tense’ … who ‘read Marx but he was a humanist’, not ‘a hard-line Marxist’ … a dedicated grassroots trade unionist … ‘not these hard corporatist trade unionists’ … who ‘wasn’t sealed off’ … who was ‘a complete and utter stoic’ … and who was ‘a difficult guy in the sense that it was difficult to maintain a constant relationship with him, because his standards were so different to ours’. Yet this inflexible stoicism was combined with an inner sensitivity, clearly appreciated by George Bizos, who, in writing about the case years later, included both Joy’s memory of her ‘sensitive son’ and Liz Floyd’s memory of ‘a very gentle person, a very intelligent person … very warm to people, although he wouldn’t be the kind of person who would go around being very friendly to everybody. If he got close to somebody, he would be very warm to them, and considerate. He thought about things a lot. He was very concerned about what was going on around him.’13

Neil was ultimately ‘a thinker’ and, as David Dison knew, he didn’t fit his interrogators’ pigeon-holed minds. They had pursued and seized a beautifully complicated, deeply humane and healthy young man, and had destroyed him while he was in their custody. This individual narrative would rest at the core of the inquest. However, Aubrey’s go-ahead to the legal team was hugely significant. In aiming to establish induced suicide, through offering evidence from Neil’s fellow detainees, the inquest would provide a rare public means of truth-seeking, and form an indictment against detention without trial. Aubrey, who was prepared to commit his life’s savings to pay for the best lawyers, had agreed a strategy in pursuit of a wider justice. The political implications were diametrically at odds with everything that he had previously believed.

Neil would have approved.

1 Helen Suzman, In No Uncertain Terms, Johannesburg: Jonathan Ball Publishers, 1993, p232.

2 Ibid, p234.

3 Quoted by Suzman, Ibid, p236.

4 Helen Suzman, letter to family, 23.2.82, by permission of Frances Suzman Jowell.

5 Critical Health, No 7, April 1982.

6 The South African Building, August 1941, in Magistrates’ Courts: blasts, apartheid, art, www.joburg.org.za.

7 Nelson Mandela, In His Own Words, London: Abacus, 2004, p24.

8 It was inside this building, in April 1965, that my brother had declared, before being sentenced, ‘I would like to make this a better country for all its people, and not just for the privileged minority to which I was born’ [Author’s personal papers].

9 Inquest Enquiry Opening, Johannesburg Magistrate’s Court, 2.3.82, Record of Inquest. Miscellaneous additions.

10 Quoted in Bizos, No One to Blame?, 1998, p27.

11 Bizos, Ibid, p105.

12 George Bizos, aged 82, came to England in February 2011 to deliver a lecture in honour of his friend and fellow advocate Bram Fischer QC, at Rhodes House, Oxford. The setting for our interview the following morning, in a comfortable sitting room overlooking a serene, walled English garden, was in sharp contrast with his subject matter.

13 Elizabeth Floyd, in Bizos, 1998, p106, taken from Record of Inquest, Vol 4, p1268.