Political interference in the medical system extends beyond issues of admission to the study of medicine. Once students graduate, they are sent to areas often fraught with problems and where there is little equipment. I have been outspoken about the amount of damage to which this is giving rise, as well as the harm being caused by the HIV/AIDS situation (provoked, in part, by Thabo Mbeki’s incorrect views on HIV/AIDS).
The result of all of this is that young doctors, once qualified, seem to be leaving the country in droves. There is no motivation for them to stay, and this has a sad impact on health care in our country.
What really bothers me is the tragedy of all of this. Thirty or forty years ago, the education system was not good at all and needed improving, but the medical system was not bad. As I mentioned in Chapter 1, I was mentored as a young man by a district surgeon in Standerton. He was a rampant National Party supporter, but a good doctor nevertheless. I accompanied him on many of his rounds late at night to treat the sick, most of whom were farm workers. This level of mentoring and education for prospective doctors is simply not available today.
Our problems arise from the fact that there has been political tampering with systems that work. I do not condone the idea of a central system that controls every aspect of state functioning, including police stations, hospitals and district administration. As mentioned in Chapter 4, central government control is never a good thing, whether it is over medicine, commerce or forensic matters. Some clients of mine have tried to control the outcome of my investigations by either inferring or directly requesting that I alter my reports, but this is a practice that I will not follow.
In 2002, a large blue-chip company found that someone was imitating their products and packaging and selling them off as the real thing. They were losing a significant amount of money, and they called me in to investigate.
I was provided with samples of the imitation products to analyse and compare to the original products. I requested the company’s records of the exact ingredients contained in the original products, including the perfumes, so that I could compare the samples.
The company had no records of the exact organic compounds used in their original products. All I could compare the imitations to were the current products of the company, which may have differed from the original products in make-up. I explained to the attorney who had briefed me that my test results would not help very much, as I could not compare the imitations to the originals.
The attorney handling the case was from a well-known law firm that dealt primarily with copyright issues. He was not happy with the fact that I could not vouch for the samples being significantly different, and suggested that I omit that particular piece of information from my report.
If I did this, I would be misleading the court. I remember saying to him, ‘So you want me to give a false report under oath?’ He replied, ‘Yes, because it’s not going to go to court. You won’t be cross-examined.’
This was not the point at all. There was always a possibility in the future that this report may be referred to in another case and that my credibility would be at stake. I refused to omit the information. He was not impressed, and the company concerned was angry that I was not prepared to perjure myself. They were paying me, and they expected me to follow their ‘suggestions’, regardless of the fact that that would compromise the practice of ethically sound forensic science.
I found myself in a similar situation in 2004, when I was working on a case involving a baby who had been born brain damaged at a private hospital in Hermanus, in the Western Cape. The highly distressed parents wanted some recourse, as they felt that the hospital was to blame for the baby’s medical condition. It was not a straightforward matter at all, and I was called in on behalf of the hospital’s insurance company.
The mother had gone into labour, and the staff, it was alleged, had allowed the labour to go on until the uterine membranes ruptured. As a result, pressure had been placed on the baby, which caused foetal distress. The baby was born brain damaged, and the parents were naturally devastated and angry. Their first path of recourse was the gynaecologist and the nurses. The gynaecologist said that he had instructed the nurses to administer a drug that causes increased contractions to the uterus. This drug was a synthetic version of the pituitary gland, hormone oxytocin, which makes the uterus contract faster and harder. The problem was that there was no fluid in the uterus, so it pressed against the baby’s head and affected the heartbeat. The real question came down to whether the increased uterine contractions and the brain damage to the baby were a direct result of the administration of this drug.
I was called in to calculate how long it would take for the drug to get from the saline bag through the tube and into the patient. That sounds easy, but it proved not to be. The drug is put either into the bag or into the drip itself via a drip port – I didn’t know which it had been. The solution then drips into a drop counter, a small transparent reservoir, and affects the concentration of the solution in the drop counter. Each drop that runs through the tube mixes with the other fluid in the tube, and the walls of the tube affect the rate of the flow, making it a complicated calculation.
A number of elements influence the calculation, including how the nurse administers the drug, how long it takes for him or her to get it into the patient, and how the nurse mixes it in the bag – some give the bag two squeezes, others take the bag off and mix it properly, and so on. The actual process of drug administration therefore makes a vast difference to the calculation. I couldn’t get an answer for the length of time it would take for the drug to reach the patient until I had answers about how the drug had been administered.
With the knowledge of the advocate and the instructing attorney, I went to the hospital to observe how all of this is done. I then did the calculations, and concluded that the expert for the plantiff was right in his calculations: the drug had caused faster contractions and given rise to foetal distress. The advocate was furious and said to me, ‘I don’t want you to go out there and do all that Quincy stuff,’ once again a referral to the popular TV programme from many years ago.
He was unhappy with the factors that I had taken into account in my calculations. I asked him if he wanted me to get into the witness box and say that I had performed the calculation based on the limited number of factors he wanted me to use. Had I done so, I would have undermined my integrity and credibility as a professional forensic scientist.
I have been in many situations in which lawyers have said to me, ‘Thank you, this is a nice report, but will you alter it, please?’ My reply to them is always an emphatic no, and consistently they respond with astonishment: ‘We’re paying your bill; why won’t you do this?’ My answer is very simple: if they bring me new evidence that will motivate me to change my view legitimately or recant on something I’ve said, I will put it in my report as an addendum. That way, whoever evaluates the report can follow my path of reasoning and, in particular, the reasons for my change of mind.
Were I to modify a report for a client, that client would be in possession of two differing reports of mine. If there hadn’t been a good reason for my altering them and that client one day ends up on the opposing side in another matter in which I am involved, they could discredit me with one question: ‘Have you, Dr Klatzow, ever altered a report at the behest of your client?’ If I say no, I am immediately discredited for being dishonest – they have the reports as evidence. If I reply that I have revised reports in the past, that in itself destroys my credibility in front of the judge.
In the tragic case of the brain-damaged baby, as in so many others, the client wanted me to find only what would benefit their case. I am not prepared to do that. Instead, I will do all the ‘Quincy’ work until I am satisfied with the answer: I will forever remain true to my craft.
CHAPTER 26
CONDEMNED TO REPEAT HISTORY
‘If the law has made you a witness, remain a man of science. You have no victim to avenge or guilty or innocent
person to ruin or save. You must bear testimony within the limits of science.’
– PAUL C. BROUARDEL,
nineteenth-century French medico-legalist*
Forensic science has no master but the truth. Failure to understand this often creates difficulty for the scientist, who endeavours to get as close to the truth as humanly possible using scientific methods.
Many people believe that evidence will favour the side for which the forensic expert is acting, yet this is not the case: the forensic scientist is a witness to truth itself. Irrespective of whether it is the plaintiff or the defendant, the prosecution or the accused, that has called you as a witness, your duty is to give fair and unbiased evidence, and never to pervert or change your evidence or slant your findings. Forensic science is not about being a hired gun, either for political or for business interests (see Chapters 2 and 24). Occasionally, clients have to be warned that you will sink them with your evidence if they place you in a witness box. Many forensic experts fall into the trap of thinking that they are acting for one side or the other, but this is never the case: the role of the expert is to be completely impartial.
Impartiality was a constant battle in the apartheid years. The police laboratories were run along party political lines, and the justice system was no different. Judges were often handpicked by the Nationalist government, which successively deployed the party faithful to positions of judicial power to assist the government by toeing the party line. Certainly, there was a great deal of that in the Magistrates’ Courts – magistrates were selected by the government in order to produce judgments that suited the state. In the cases in which I was involved in those years, I experienced first hand the magistrates’ extreme reluctance to find the security forces responsible for any of the hideous crimes committed in the name of the government.
During my investigations I frequently found myself up against one particular magistrate who would never find against the police. He went out of his way to be gentle towards the state: he would ignore the most damning evidence, glossing over it in order to find that the police were not culpable. This happened in the cases of the Gugulethu Seven and Ashley Kriel, among many others (see Chapters 8 and 10). It was disheartening giving evidence in front of such judicial officers knowing that they would find a way to discredit you and ignore your evidence. Eventually, though, the truth came out with the revelations at the Truth and Reconciliation Commission.
After the long, hard-fought road to democracy, one would have hoped to see a very different picture today. Our history is littered with fallen heroes and brave men and women who paved the way for freedom and equality for all. In the words of Robert F. Kennedy, ‘It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope.’
Tragically, however, I see some of the ways of the old South Africa starting to develop in our democratically elected government. Certain judges have been selected as a matter of cadre deployment, and some judges are clearly unfit for the bench.
A few years ago an advocate told me about an incident involving the Judge President of the Cape, Judge John Hlophe. Judge Hlophe appointed an acting judge to hear a high-profile murder trial, and the judge found the accused guilty. As Joshua Greeff, the attorney acting for the defence, left the court, he was besieged by the press, who wanted his opinion on the judgment. He criticised it, saying that he thought the judge was wrong and that he was going to advise his client to appeal.
Greeff was quite entitled to say this: he had the right to respectfully disagree with the judge and he could tell the press that he was intending to inform his client to appeal. His response was in no way contemptuous.
When the accused appeared in court for sentencing some months later, the judge sentenced the accused to the maximum sentence possible. The counsel for the matter, Dirk Uys, stood up and asked for leave to appeal. The judge was not interested, and swept out of court in a judicial huff, leaving Uys standing there open-mouthed.
Uys and the instructing attorney, Joshua Greeff, were busy packing up their books when the judge’s registrar arrived and said, ‘The Judge President wants to see you now.’
Greeff and Uys went up to the judge’s chambers, where they were met by Judge Hlophe, who proceeded to tear a stinging strip off Greeff for his remarks, allegedly ending his commentary by saying to Greeff, ‘You’re nothing but a piece of white shit who should go back to the Netherlands.’
I was outraged that a member of the judiciary, especially one who occupied such a prestigious office, could express these improper sentiments in such vulgar language. I phoned Joshua Greeff, who was reluctant to confirm the event, but when I spoke to Dirk Uys, he verified the whole squalid business. I then phoned Martin Welz, who published the article in Noseweek magazine. The incident became a cause célèbre in Cape Town, and it was a severe embarrassment to Judge Hlophe.
Judge Hlophe went on to deny the affair on national television, but later allowed the appointment of Uys as acting judge in his division. One is left with the uncomfortable conclusion that either Hlophe was happy to have a perjurer who had defamed him on the bench, or this was a hatchet-burying job. What was particularly telling was the fact that, in the midst of the denials by Judge Hlophe, he never called the prosecutor, Chris van der Vyver, or the judge, Judge Tandaswa Ndita AJ in the matter, both of whom had been present during the encounter, to confirm his avowal that he had not said the unfortunate words to Greeff.
Judge Hlophe didn’t stop there: his later remarks about Judge Wilfred Thring are a particular indictment on him. While discussing a case with one of the parties and his counsel at a cricket match, he allegedly told them that he was going to refer the matter to Judge Thring so that he could ‘fuck it up’ and it could be remedied on appeal. Unfortunately for Judge Hlophe, this information leaked out and I made certain that it was publicised. The comment was irresponsible, improper and an insult to a man who deserved no insult whatsoever. Judge Thring, in my experience, is a scholarly gentleman of great temperance, and a man worthy of respect. Because of his judicial position, Judge Thring was unable to respond publicly to the nasty saga.
When Judge Thring failed to get permission from then Chief Justice Chaskalson (and later, his successor, Chief Justice Langa) to publish his response to an earlier, widely publicised attack of racism that had been launched against him by Judge Hlophe, he took his entire dossier and deposited it with the national archives in Roeland Street. Inexplicably, the curator placed a twenty-year embargo on it and catalogued it as confidential material, which it was not.
When I heard this, I was outraged. Judge Thring had obviously intended his side of the story to be heard, but he was being muzzled by the state machine. With copies of Judge Thring’s papers in hand, I called a press meeting, where I made them available to the press. I believe that this is what democracy is about – openness and transparency. It is not about allowing an improper statement and unacceptable behaviour by one judge, directed against another judge, to be kept out of the public eye. We need to know who is holding our future in their hands when they are making a judgment from the bench.
In my view, Judge Hlophe has been a most unsuitable candidate; a great pity, because he started off with such high hopes from all. He was regarded as a man of great promise by the other judges, but it seems that the power went to his head.
Judge Hlophe went on to accuse, unjustly, other senior advocates at the Cape Bar, as well as a former judge president, of racism. The charge of racism against Henri Viljoen SC arose from a meeting in Judge Hlophe’s chambers. Requested by Viljoen, the conference had been called to discuss a case due to come before the court. Judge Hlophe had invited Deputy Judge President Jeanette Traverso to be present. In a letter to the Minister of Justice in 2004, Judge Hlophe complained that Viljoen had greeted Judge Hlophe and then addressed Judge Traverso in Afrikaans. Judge Hlophe does
not speak Afrikaans, and was allegedly ignored from that point on.
Details of when this incident took place and who exactly was involved were requested by the Cape Bar Council, but the facts were never supplied. Viljoen categorically denied that the incident ever occurred and pointed out that, in his experience of the judge president, the latter would never have sat through the humiliating experience described by him.
The upshot of all of this was a paper titled ‘Report on Racism in the Cape Provincial Division’, which Judge Hlophe prepared and sent to the Minister of Justice instead of to the Chief Justice, outlining his complaints about racism on the bench and at the Cape Bar. Depsite the fact that the allegations were refuted, Judge Hlophe did not retract the report or publicly apologise to those he falsely accused of racism. It all proved to be just a damp squib, and the affair’s lasting legacy is a Zapiro cartoon, which is included as Appendix K.
As I hope to have demonstrated in this book, the purpose of a forensic investigation is to get to the truth. The facts should then be presented in an impartial court of law in order for the correct legal findings to be made. Courts are about justice, and should never be tainted by money or politics. As a forensic scientist who has been involved in the criminal and political life of South Africa for many years, I have a role to play in this regard, and I will speak out whenever I feel it necessary.
In the old South Africa, the police force and judicial system were rampantly politicised. Our police forensic laboratories also failed the test. As discussed in Chapter 9, General Lothar Neethling established a fine laboratory for the police, yet his attitude and injunctions were allowed to contaminate the laboratory and cast a shadow over the work of even the better forensic scientists working there.
Steeped in Blood Page 27