Whitethorn

by Bryce Courtenay

  Lieutenant Van Niekerk pointed at me. ‘You identified his platform feet from a photograph, Meneer Fitzsaxby.’

  ‘Ah, but as I was only seven at the time, my identification could not be accepted as evidence.’

  ‘That is correct. But I believed you. You were a slimmetjie.’

  ‘So, at the time, while you may have speculated, even known the identity of the murder victim, had this trial occurred at that time, you would not have been able to say with certainty that the murdered man was Mattress Malokoane?’

  ‘Ja, I knew it was him, but you are right, I had no means of identifying him, except for his platform feet and the word of a child.’

  ‘Would you say it could possibly have been someone else, another native with platform feet?’

  ‘Ja, it’s possible, such feet are not uncommon with the black people. But, ag, man, I was certain it was the servant from The Boys Farm.’

  ‘Nevertheless you couldn’t prove it?’

  ‘Ja, that is true.’

  ‘Tell me, Lieutenant, was there anything else unusual about the body?’

  ‘Yes, it had been mutilated.’

  ‘By the dragging of the body?’

  ‘No, Sir, at first I thought this, but then I saw it was deliberate, the mutilation had been done using a sharp instrument.’

  ‘Such as a knife?’

  ‘Yes, it was well done, a clean cut.’

  ‘What form did this mutilation take?’

  ‘The penis and testicles, the sexual organs, had been removed.’

  ‘I see, and was this discovery made known at the time?’

  ‘No, Sir, at that time it was my decision not to reveal this particular mutilation.’

  ‘Why was that, Lieutenant?’

  ‘I didn’t think it was nice. If the newspapers heard about it they would have made a big story. Only last year there was a ritual murder in the Tzaneen District. But that was a thing black people do, not white men. All the newspapers made a big gerfuffle. Not just the Zoutpansberg Nuus, the big boys, Die Burger and Die Vaderland, and also the English papers. I didn’t think this was a ritual murder.’

  ‘What did you think it was, Lieutenant?’

  ‘Revenge for a sexual assault. Whoever did it wanted people to know why they did it.’

  Gawie jumped to his feet. ‘Objection, My Lord. This is pure conjecture on the part of this police officer.’

  ‘Objection sustained. The witness’s statement will not appear in the records. You may not proceed with this line of questioning, Meneer Fitzsaxby. The bench will accept that the police officer at the time did not divulge the fact that the body had been mutilated in the manner described.’

  ‘Thank you, My Lord.’ I turned back to Lieutenant Van Niekerk. ‘So only you knew of the mutilation, Lieutenant?’

  ‘Yes, but, of course, also the person or persons who did it.’

  I turned to face the bench. ‘My Lord and Your Honours, I have on two occasions attempted to brief my learned friend for the defence on the existence of the physical evidence I am about to produce. On both occasions my learned friend made himself unavailable. I crave your indulgences for this omission.’

  Judge Ludorf turned to the assessors and a short conversation took place, whereupon he turned back to face the court. ‘Most regrettable, Meneer Fitzsaxby. However, under the circumstances you may proceed with your evidence. Both you and Meneer Grobler will see me in my chambers at the conclusion of today’s hearing.’

  Janine De Saxe handed me a small canvas bag. ‘My Lord, contained in this bag is the canned-fruit jar and contents alluded to by my witness, Meneer Kobus Vermaak, when the court reconvened after lunch.’

  Suddenly the courtroom was in uproar.

  ‘Silence!’ Judge Ludorf thundered. ‘I will have silence!’ His gavel was working overtime and eventually the gallery was brought back to order. ‘You may proceed, Meneer Fitzsaxby.’

  ‘Thank you, My Lord. I will presently tender the exhibit in question to the court as evidence.’

  ‘Objection, My Lord!’ Gawie said, jumping to his feet. ‘My learned friend has not proved that the contents of the canned-fruit jar are the legitimate and identifiable remains of the murder victim.’

  I had caught Gawie completely by surprise. It was obvious that the Van Schalkwyks had not made a connection between the poisoned pork raid and Exhibit A. It may be possible that Mevrou had not even told Gawie about the raid. After all, I was certain that she was an alcoholic, in a state of dwaal most of the time. If I could prove, as I believed I could, that the contents of the jar had once belonged to Mattress, I was well on my way to proving her guilty. Although I had learned in life never to count my chickens before they have hatched.

  ‘My Lord, I intend to prove that the contents of the jar are a part of the physical remains of the murder victim and that they are directly connected with the accused.’

  Gawie was back on his feet. ‘My Lord, the nature of this new evidence is such that I request time to consult with my clients.’

  Judge Ludorf looked directly at Gawie. ‘Firstly, your objection is overruled.’ He turned back to me. ‘Meneer Fitzsaxby, is the canned-fruit jar part of the evidence you wished to make known to Meneer Grobler, both this morning and at the lunch recess?’

  ‘Yes, My Lord.’

  ‘In that case, Meneer Fitzsaxby, you may proceed.’

  With our Boys Farm backgrounds we had both learned in the cradle that self-conceit is dangerous and pride inevitably comes before a fall. The lessons learned early in life should never be carelessly thrown aside.

  I returned to Lieutenant Van Niekerk in the witness stand. ‘Lieutenant Van Niekerk, do you recognise the jar and contents I have given you? If so, would you please tell the court what you believe to be contained in the jar.’

  ‘In the jar is a quantity of brandy and in it the penis and both testicles of a Bantu male.’

  ‘Do you have reason to believe that, in all probability, they belonged to the victim, Mattress Malokoane?’

  ‘Yes, I do.’

  ‘Can you give this court your reason?’

  ‘Ja, well, people don’t keep the sexual organs of a native person for a keepsake unless they have a very good reason, even then —’

  ‘Thank you,’ I said quickly, wanting him to stick to the facts without confusing them with his personal opinion. ‘Can you tell me where you found the jar and contents?’

  ‘It was behind some large canned-fruit jars of pickled pork on the pantry shelf in Mevrou Van Schalkwyk’s house on the family farm.’ Lieutenant Van Niekerk then explained how I had told him of its possible existence, of me having originally heard about the jar and its contents from Pissy Vermaak; then how he had obtained a search warrant and what had occurred during the Van Schalkwyk raid. Gawie objected that Lieutenant Van Niekerk had employed deceit to obtain the evidence and asked that it be disallowed. Judge Ludorf overruled the objection, stating that the police officer need not have given a reason for conducting the search, that the search warrant from Magistrate Du Plessis was sufficient to enter the premises.

  ‘Was there anything further about the jar that you wish to note, Lieutenant?’

  ‘Yes, Sir. Under the dust we discovered Mevrou Van Schalkwyk’s fingerprints.’

  ‘Are you prepared to verify that you did not reveal the fact that the body of the victim had been mutilated and the sexual organs removed using a sharp instrument, in all likelihood, a knife?’

  ‘Ja, I already said so,’ Lieutenant Van Niekerk said, putting me in my place.

  ‘Is it not possible that in the process of being dragged behind a motor vehicle the sexual organs might have been removed?’ I persisted.

  ‘No, man, you could see it clearly. When I was a young man on the farm we did all the slaughtering of animals: pigs, calves, sometimes if we could get one, even sheep. I’m telling you, there’s no mistaking it, the native murder victim, his private parts, they was removed with a knife, I absolutely guarantee it.’


  ‘Lieutenant, when you removed the jar that you now see in front of you from the premises of Mevrou Van Schalkwyk, did you also remove several jars of pickled pork?’

  ‘Ja, I think, in all, it was thirty-six.’

  ‘Did you get the impression that the pig meat was grown and slaughtered on the property?’

  ‘Ja, the ouvrou more or less said so, but it is well known, you hear? The Van Schalkwyks, they keep pigs, and their honeyed ham is the best in the Northern Transvaal. They do everything themselves, they say this is their secret, only a Van Schalkwyk works on a Van Schalkwyk pig. Even the honey, it’s from their own beehives, high mountain honey.’

  ‘Therefore, it would not be unreasonable to conclude that at least one of the male members of the family would be an expert with a slaughtering knife?’

  Lieutenant Van Niekerk shrugged. ‘Ja, of course, it stands to reason.’

  ‘Lieutenant, when investigating the murder, did you take a blood sample of the victim and submit it in order to ascertain the victim’s blood group?’

  ‘No, man, this was a dead kaff – a murdered native, we don’t do that. I told you it was still hot weather and we had to bury him quickly, a body like that, with all that open flesh, you can’t leave it lying around or you in big trouble.’

  ‘I have no more questions of this witness, My Lord.’

  Gawie then set about questioning Lieutenant Van Niekerk but yielded nothing until he arrived at the matter of the fingerprints, hitting the jackpot. ‘In the matter of Mevrou Van Schalkwyk’s fingerprints, there is no notation in your original police enquiry that you obtained the fingerprints of The Boys Farm matron. How did you come to obtain these in order to confirm a fingerprint match with those on the canned-fruit jar?’

  Lieutenant Van Niekerk was then forced to explain how he’d taken a set of prints from the semiconscious and sleeping Mevrou.

  ‘My Lord, I ask that the evidence pertaining to the fingerprints on the jar not be allowed. It is illegal to obtain the fingerprints of a citizen without permission if she has not committed a crime or has not been placed under arrest.’

  Judge Ludorf sustained the objection. It was a moot point, but the damage had been done. The fingerprints on the jar were now evidence known to the judge and the two assessors.

  ‘My Lord, I request permission of this court to allow the fingerprints of the accused, Mevrou Van Schalkwyk, to be taken in court and the findings presented at a later stage in these proceedings. I have a fingerprint expert standing by if permission is granted.’

  The judge and assessors conferred for a minute or so before Ludorf turned to me. ‘Gathering evidence while the court is in session is unusual, Meneer Fitzsaxby, but permission is granted. The court records will show that Lieutenant Van Niekerk acted willfully and abused the rights of the accused, Mevrou Van Schalkwyk.’

  Lieutenant Van Niekerk retired from the witness stand and the fingerprint expert was called in and Mevrou’s fingerprints were taken. I then presented Frikkie Botha’s sworn affidavit together with his numerous notes. I selected only those notes that told how the Van Schalkwyk brothers, when with Frikkie in the unit of the Stormjaers, had admitted that they had murdered Mattress, describing to Frikkie how they had gone about it. I briefly outlined the bridge explosion and subsequent accident and the disappearance of the six brothers and presented the photographs of Frikkie after the accident. I did this only so that I could put his handwritten notes into context.

  Just as I had anticipated, Gawie immediately objected, saying that the notes were clearly motivated by a sense of revenge. I deliberately did not argue this point. I then presented the notes in Frikkie’s handwriting dated long before I had met up with Pissy again, by which time Frikkie had been dead some years. They told in detail of how Frans van Schalkwyk had told him how he’d performed the mutilation, finishing with the quote: ‘Ag, it was easy, just like cutting up a pig, only the kaffir’s cock was bigger, man!’

  ‘My Lord, if the information about the mutilation and removal of the murder victim’s sexual organs was, as Lieutenant Van Niekerk told the court, unknown, I submit that in the case of Meneer Vermaak this information can only have come from Mevrou Van Schalkwyk in the manner previously described in his testimony. Furthermore, Meneer Frikkie Botha would have had no way of knowing this information other than if, in the intimacy of the Stormjaer fraternity, he had not been told about it. In other words, the information that the sexual organs of Mattress Malokoane had been removed could only have come from both the female and the male side of the Van Schalkwyk family. Apart from Lieutenant Van Niekerk, they were the only people in possession of this information.’

  We had reached the end of the first day in court and I had concluded my evidence. As directed, Gawie and I met afterwards in Judge Ludorf’s chambers, and the judge lost no time upbraiding us.

  ‘Meneer Fitzsaxby, withholding important evidence from Meneer Grobler is bordering on the unconscionable. It is my firmly held belief that you could have persuaded him to spend time with you in order to share the details of your upcoming evidence.’

  ‘Yes, My Lord,’ I said, knowing he was right, but also knowing that there was no way I was going to be a servant to Gawie’s arrogance.

  ‘Meneer Grobler, your behaviour in this matter is reprehensible. Today you took a hiding in my court and much of it was of your own making. Imperitia quo que culpa adnumeratur, want of skill also counts as negligence. While the letter of the law does not require you to share information with your learned friend, a protocol, far older and more important than you or I, behoves that you do so. This is the essence of good courtroom conduct and the sooner you learn legal convention the better. Eventually you may both make good lawyers, but you won’t do so by ignoring a tradition that has existed in jurisprudence for a thousand years. Law is about cogent and insightful argument, not about springing surprises on one’s legal opponent in the courtroom. You will both meet in my chambers at nine o’clock tomorrow morning to discuss the procedures and the evidence that will be presented by Meneer Grobler in my court tomorrow.’

  The following morning we met in Justice Ludorf’s chambers and Gawie Grobler said that he had committed Mevrou Van Schalkwyk to the care of a leading psychiatrist overnight and intended to put the doctor on the witness stand, who would testify that his client was not of sound mind. Furthermore, he would be entering a plea of diminished responsibility in her case and in addition he would be asking for a verdict of manslaughter in the case of the six Van Schalkwyk brothers.

  If things are going well there comes a time in a case where you believe you have your opponent on the ropes. This is when you have to be particularly careful not to be careless or give any indication that you know your opponent is in trouble. Gawie was doing all he could to save the situation. The last-minute plea that Mevrou was mentally disturbed was something he should have prepared for a lot earlier. With sufficient psychiatric examination, he might have just pulled it off. But you can never tell with a judge and I was glad that I hadn’t put Mevrou on the witness stand where she might have demonstrated her mental instability. In my opinion, what Gawie was now doing was too little too late. Be careful, Tom, keep everything simple, I said to myself.

  We returned to the courtroom and Gawie submitted his new pleas, the psychiatrist presented his diagnosis and I cross-examined him. ‘Doctor, while your findings suggest that Mevrou Van Schalkwyk is suffering, at the present time, from diminished responsibility, can you say with any certainty that this situation existed twenty-three years ago when she was considering revenge?’

  The psychiatrist thought for a moment before replying. ‘You must understand that I only spent a short time with Mevrou Van Schalkwyk last night. Without prolonged and repeated psychiatric examination it would not be possible to make a definitive diagnosis. Therefore, it is not useful to speculate on the state of her mental health twenty-two years ago.’

  The court refused to accept Gawie’s change of plea. The fingerprint expe
rt was called in again and he told the court that Mevrou’s fingerprints matched those found on the canned-fruit jar.

  Gawie’s subsequent handling of the case was highly competent as he attempted to suggest that the contents of the canned-fruit jar might have been those of another Bantu male; that there wasn’t any physical proof, such as a blood sample match, to connect it to the body of the victim. But, in the final analysis, this argument would, I think, have lacked conviction for the three men sitting on the bench. A verdict in a court of law is arrived at when the evidence put before a judge or jury is thought to be beyond reasonable doubt. With Pissy and Frikkie’s evidence and the fact that the mutilation had been kept from public knowledge, taken together with the existence of Exhibit A, I was reasonably confident that I had done enough.

  However, you can never tell. There was still the chance of a political decision. This was a South Africa living through the post-Sharpeville years: a government banning the ANC; the declaration of a state of emergency; the ninety-day detention laws without recourse for legal help; a country expelled from the British Commonwealth and one that had declared itself a republic in a ‘whites only’ referendum; and finally, the imprisonment of Nelson Mandela. Taken all together it meant that we were living in a police state.

  Towards the end of the second day I summarised the case for the prosecution, and by mid-afternoon, after retiring to his chambers for less than an hour, Judge Ludorf and his two assessors, Viljoen and Bekker, returned to court. The six Van Schalkwyk brothers were found guilty of murder and each sentenced to twenty years and Mevrou to twenty-five years, pending a full psychiatric report. Janine De Saxe had been correct. Judge Ludorf had proved that the law still transcended politics.

  I am aware that this seems like a fairly tame ending, that it would have been a better one if Gawie Grobler had demonstrated his obvious brilliance and we’d fought tooth and nail until the best man was left bloody but unbowed. The day after the court case was complete the English press anyhow referred to my conduct of the case by using a string of adjectives, ‘brilliant’ being the one most often employed.