CHAPTER 52: Summing up

CHAPTER 52

Summing up

THE MARATHON INQUEST WAS NEARING ITS END, WITH FINAL submissions starting on its 42nd day. It was being reported as the longest and most expensive inquest in South African history. Stretched out over more than nine months, at times the waiting for the family must have seemed interminable. With Jill and Aubrey due to return from the United States at the end of the week, only Joy and Paul were in court on 2 November to hear George Bizos present a meticulously detailed argument that would continue into the following day. His combination of formidable intellect, moral authority, compassion and passion offered a bulwark against the undermining words of the police.

Bizos began by reminding the court of the obligations of police. Whatever their powers under the Terrorism Act, they had a duty to release Dr Aggett in good health, both in body and in mind. They were not entitled to subject him to any form of assault or use ‘third degree methods’ while attempting to obtain a statement from him.1 Yet instead of observing their duty of care, they had subjected Dr Aggett to the most extreme and severe physical and mental pressure. Bizos also reminded the court that any person who puts another in a position to commit suicide is guilty of an offence. In this respect, he would argue that both Major Cronwright and Lieutenant Whitehead were guilty of culpable homicide.2

His portrait of Neil’s character and background was markedly different from that insinuated by the police and the chief psychiatrist of Weskoppies. George Bizos spoke of Neil as a highly intelligent, dedicated person who had foregone the material advantages that he might have enjoyed from a medical career for the sake of working for a trade union. He lived an austere, non-materialistic life, working very hard for the union, with extra work at Baragwanath Hospital and very little time for relaxation. Purposeful and directed, there was no indication that he ‘was likely to contemplate taking his own life’.3

When it came to Lieutenant Whitehead, Bizos assessed him as ‘immature, ambitious, aggressive’ and an obsessive interrogator who refused ‘to accept answers which didn’t conform to his view of the facts’.4 He had been an uncomfortable, sometimes evasive, witness who ‘did not have the stature and composure one would have expected of a lieutenant charged with such an important investigation and interrogation’.5 Having kept Neil under surveillance for about three years, he ‘firmly believed in his own mind that Dr Aggett was involved in illegal activity’.6 Bizos asked for this to be contrasted with Neil being ‘an intelligent, headstrong, determined, principled, idealistic person who was obviously not prepared to be driven to make concessions readily or easily’. Thus the stage was set ‘for a classic conflict situation’.7

Bizos pointed to the significant omission from Whitehead’s detailed affidavit, made soon after Neil’s death, of any reference to ‘Dr Aggett’s alleged momentous disclosures’ on the last night of his 62-hour interrogation, for which the police had subsequently claimed privilege and the reason for his suicide.8 Why would Neil have given this information to Warrant Officer Deetlefs, who had no background in the investigation, and why would he not have written it himself, if he was giving it voluntarily? The alleged disclosures were completely uncorroborated. Neil was alleged to have overheard a telex being composed on the basis of his disclosures, yet the Commissioner of Police had declined to order the arrests of the people he had supposedly named. The police claim of privilege was spurious and should be dismissed, declared Bizos.

A further discrepancy existed between Whitehead’s earlier affidavit, in which he had spoken of the decision to interrogate Neil in a ‘more intensive manner’,9 and his evidence on the witness stand, in which he and other officers tried to suggest that the 62-hour interrogation had been at Neil’s own request so he could ‘clear’ or ‘open up his heart’. During that period he had been interrogated by no less than eight security policemen, and a ninth black officer had been present for some of the time. Even on the police’s own version that Neil could sleep on a camp bed – which was not consistent with Neil’s affidavit and not conceded – he had been subjected to exhausting periods of interrogation. Whitehead’s affidavit had failed to mention Neil’s complaint to the magistrate about being assaulted on 4 January and his own response to the allegation, as well as Neil’s later affidavit to Sergeant Blom.

Bizos also reminded Magistrate Kotzé about Whitehead’s admission that he was partially responsible for the planned illegal entry to the Aggetts’ home, and the attempt to bribe their employee. Whitehead’s explanation that he was looking for Gavin Andersson was ‘so flimsy that it can be rejected out of hand’.10 The substantial point was that the lieutenant had been prepared to misuse his position as a police officer, flout the law and commit perjury to conceal the true purpose of the incident.11

It was, however, Major Cronwright who had been in overall charge and who had given his approval for the 62-hour interrogation. During the first period of interrogation, he had been regularly advised by Captain Naude, until the investigation had been handed over to the newly promoted lieutenant in early January. Although the major said Dr Aggett’s first statement did not contain the truth, he subsequently conceded that he had never read it, merely relying on Whitehead’s word. The major had also relied heavily on the ‘Close Comrades’ document as proof that Dr Aggett formed part of an ANC cell. This was just one of the documents, along with Neil’s statements, that the police had tried to withhold from the court. Yet, when it had been made available in September, it showed precisely the contrary. Bizos reminded the court of Major Cronwright’s reason why Dr Aggett had not been given the chance to refute this misreading of Barbara Hogan’s list: that the police had ‘no interest in negative answers’.12

The court should also recall the manner in which the major had dealt with Dr Aggett’s complaint to the magistrate on 18 January. When the letter had reached him, after taking seven days to travel half a kilometre from the magistrate’s office to the major’s desk, Cronwright had called in Lieutenant Whitehead and Detective Sergeant van Schalkwyk, who both denied the charge, whereupon the lieutenant was allowed to continue interrogation. Dr Aggett would be alive if detainees’ complaints of ill treatment had not been handled in such a ‘flat-footed, lackadaisical manner’.13

Bizos went on to comment that the security police under Major Cronwright were, with the possible exception of Captain Naude, a closely-knit group whose loyalty to one another is greater than their respect for the truth. Apart from a frequently ‘parrot-like fashion’ of delivery,14 there were a number of vital questions still to be answered on the probabilities. If Dr Aggett was well treated, as they all claimed, why did he complain of being assaulted? If he wasn’t assaulted on 25 January, how did Maurice Smithers, Jabu Ngwenya and Auret van Heerden offer corroborating information when they had no opportunity to communicate with each other? Why was Dr Aggett’s ‘request’ to remain on the tenth floor for 62 hours not mentioned in the earlier police affidavits? Why was Dr Aggett not allowed to return to his cell to shower, brush his teeth and change his clothing? Why was he not seen by the magistrate on 1 February? Why was he kept away from the magistrate, the Inspector of Detainees and a doctor for over two weeks after he was injured on 4 January? Why had Major Cronwright appointed an inept young policewoman to investigate Dr Aggett’s complaint against officers who were senior to her? Sergeant Blom could not have inspired confidence in the complainant. Why had she immediately made known the contents of Dr Aggett’s affidavit of 4 February to Major Cronwright and Lieutenant Whitehead? Even if Dr Aggett had not been threatened with another ‘long weekend’, he might well have feared such a repeat experience.

Over the course of the day, counsel for the family raised a string of queries, inconsistencies and contradictions that the legal team expected Magistrate Kotzé to address. If the police version of events was conceded, that they had seen no particular cause for alarm and that Dr Aggett was not likely to commit suicide, why did he then take his life? If their belated ‘betrayal’ explanation was correct, would he have betrayed his friends had he not been deprived of sleep, had he not been assaulted, had he not been shocked? The only explanation could be that he had been pressured unlawfully, until he broke. Why else would he have written in his second statement that he was a communist because he supported ‘the Marxist ideology’? It was a most unlikely phrase and not one that he would have used. Why should he have chosen to squeeze in the sentence ‘I am also an idealist’ other than to negate the preceding sentence? Why was the sentence about being a communist placed as a banner headline in the typed statement? Why did Dr Aggett use the un-English word ‘communistic’? There was no shortage of discrepancies and unanswered questions.

Denis Kuny addressed the evidence from detainees, pointing out that many were still in custody and could therefore not communicate with each other and conspire to furnish false evidence. The fact that they each spoke independently testified to their credibility. The apparent contradictions were minor and did not mean that the whole of their evidence on Dr Aggett’s deteriorating condition should be rejected. Nor had counsel for the police dealt with the evidence of Prema Naidoo and Shirish Nanabhai,15 both currently serving sentences. If their evidence of torture and ill treatment was accepted, it meant that the police had lied in their earlier denials, and were therefore probably also lying about Dr Aggett. Nor had the police given an explanation as to why he had committed suicide if he had been as healthy and composed as their witnesses suggested.

Calling for Major Cronwright and Lieutenant Whitehead to be found guilty of culpable homicide, Bizos returned to his premise of the responsibility of the police to maintain their detainees in good health, physical and mental. Yes, the security police had been granted enormous powers but ‘we are all subject to the law of the land and its processes which protect the dignity and sanctity of human life’.16

Piet Schabort’s submission for the police was considerably shorter than that of his opponents. With his main thrust that there was not enough evidence for anyone to be held responsible, he returned to the betrayal theory as the ‘trigger’ for suicide. Taking the uncorroborated and privileged ‘disclosures’ as fact, he argued that guilt could have driven Dr Aggett to take his life. Even if allegations of assault were to be proved, said Schabort, there was no proven connection between the alleged assaults and the suicide. Maurice Smithers, he asserted, had fabricated his evidence after Dr Aggett’s death in order to cause a sensation. There were contradictions in the evidence of former detainees, which Schabort declared ‘is totally irreconcilable with the objective evidence of Professor Jan Plomp’.17 Thus the useful professor, who had relied heavily on the security police to assess Neil’s character, was the provider of ‘objective evidence’.

Neil’s complaint to Sergeant Blom was discredited by Schabort because his account of torture did not tally in all details with the statement from Auret van Heerden. Either there was no assault, or Dr Aggett was lying in his statement of complaint, or he lied to Van Heerden, or Van Heerden lied to the court.18 Here was the rub: ‘lying … lied … lied’. With no reference to the disorienting effects of solitary confinement, the only explanation was that one or other detainee was lying. Neil had written the words ‘I am a communist’, which the police had ensured were circulated widely. To most white South Africans, communists would do anything to promote their cause, including lying. Schabort ended by calling on the magistrate to reject the ‘fabricated and partisan’ evidence of the detainees.19

So the police case was simple. Having been found out and having given names, the detainee had taken his life rather than face his friends. So, he was a liar … and a coward. Moreover, according to Professor Plomp, his death could be seen as a final act calculated to damage the police by prompting an investigation into detention. In other words, Dr Aggett was also a betrayer of the state.

This kind of misrepresentation by counsel for the police came as no surprise to Neil’s comrades and friends. Telling a reporter why she had sat through all 42 days of the inquest, Liz Floyd explained how it felt like an extension of the process of interrogation: ‘It was as if Neil was virtually on trial and I had to play a role in that … In a sense the inquest was a prolongation of detention; going into the witness box I could not get it out of my head that it was like interrogation.’20

Liz knew what to expect in the inquest and had steeled herself – a considerable feat. After two months in a psychiatric ward, she had been released with a diagnosis of ‘post-traumatic stress syndrome’. Whenever the inquest was in session, she told the reporter, her symptoms manifested themselves again and got worse. Her memory would go. She couldn’t remember places or people’s names. She couldn’t sleep. She would become tense and withdrawn. It was like being back inside John Vorster Square. Each detainee who had given evidence, submitting to being interrogated under cross-examination, had to grapple with demons. Liz spoke of her life coming under the microscope of four different groups of investigators: security police, psychologists, lawyers and the press. In the end, she said, you even start questioning yourself.

Joy, like Jill, probably managed to hold herself together during the inquest through a form of emotional cautery. But to hear her son’s character maligned must have sorely chafed at the wound. Jill, who had returned with Aubrey from the United States on the final day of the inquest, had read the summings-up in a newspaper in New York. From the start, their lawyers had tried to prepare them not to have unrealistic expectations of ‘openness and fairness’. Jill recalled their initial puzzlement when William Lane had told them to put any documents that they received from him under lock and key. The break-in at her parents’ home had brought home ‘how low’ the police would go.

Nevertheless, the family was still heartened by what their lawyers had so skilfully managed to put into the public domain. Nearly thirty years later, Jill still recalls the thrust of fear and hope in their expectations: ‘I think we knew in our heart of hearts what the outcome would be, but always had the hope that the magistrate would in some way criticise the police if not actually accuse them of murder.’ They could not give up on receiving a modicum of justice.

1 Heads of Argument, 10.1, Box C, Record of Inquest.

2 Ibid, 12.11.

3 Ibid, 5.2.

4 Ibid, 31.3

5 Ibid.

6 Ibid, 21.8.

7 Ibid, 31.4

8 Ibid, 23.2.

9 Whitehead, Affidavit, 19.2.82, Docket 1.47, Record of Inquest

10 Ibid, 33.1.

11 Ibid, 34.

12 Ibid, 38.2.

13 Ibid, 14.1.4.

14 Ibid, 19.5.

15 Ibid, 25.5.

16 Ibid, 62.

17 ‘Detainees “made up evidence”’, Cape Times, 5.11.82.

18 ‘A diary of alleged police torture and assaults and the nightmare his parents have to live with’, Sunday Tribune, 7.11.82.

19 ‘Reject fabrications, Aggett inquest told’, Rand Daily Mail, 4.11.82.

20 ‘The suffering of the young woman doctor who lives on’, Sunday Tribune, 7.11.82.