Shepherds and Butchers

by Chris Marnewick

  Roshnee Kissoon Singh was sitting by herself with a thin file on her lap. I looked for a client but there was no one else in my reception area. I asked Cora to arrange tea for Roshnee and she and I went back to my chambers.

  Roshnee is not one for levity, so I got straight to the point. ‘So, Roshnee, what’s this I hear about a criminal case?’

  She looked down at her file before she made her case in short sentences.

  ‘I am here on behalf of Lawyers for Human Rights. Your name is on the LHR list of volunteers for pro bono work. This man has killed seven people. He needs an advocate.’

  I sat back in the chair. While I had always half-expected that LHR would call on me for something, I had hoped that they would somehow overlook me. I subscribed to LHR’S ideal of advancing a culture of human rights in South Africa, but I had not had anything to do with the organisation’s main activities, which appeared to be the provision of pocket money to prisoners under sentence of death and the conduct of appeals for clemency.

  ‘Why does it have to be me?’ I asked. ‘I am a maritime lawyer. I don’t even know why I am a member of LHR.’

  ‘You allowed your name to go on the roster.’

  I did not respond. I looked at Roshnee more closely. A distant relative of the great Mahatma, she had a stubborn streak that went beyond the duty owed to the client or the Court. She was dressed in a sari, her only compromise to Western tastes the more subdued colours: aubergine and olive green with flecks rather than splotches of gold. Her thick raven hair was pulled tightly in a bun, lifting the corners of her eyes to give her a slightly oriental appearance. A red dot on her forehead signified that she was married.

  She fidgeted with her file. ‘Do you remember that case in Pretoria where seven men on their way to a karate competition were killed next to a reservoir?’ She did not wait for me to answer. ‘LHR has decided to provide a senior advocate from its pro bono list to lead the pro Deo Junior in the trial.’

  I remembered the case only too well. It had been plastered all over the newspapers and television for a week. ‘I don’t need racially motivated mass murders on my slate,’ I said. ‘Surely they have someone in Pretoria or Johannesburg who specialises in this type of thing?’

  ‘No one wants to touch the case.’

  ‘Is it a political case?’ I asked.

  ‘No, I don’t think so,’ she said, but there was an uncertain note in her voice. ‘At least, LHR told me it wasn’t.’

  I shook my head. ‘No, that can’t be right. If they are involved it has to be a political case. They only take the political ones.’

  Roshnee held my gaze. When she spoke again, softly, she sounded desperate.

  ‘Every death sentence case is a political case.’

  I tried another angle. ‘The case is hopeless anyway. No one gets away with killing seven people.’

  ‘Maybe, maybe not. But you can’t say no.’

  ‘Why not?’

  ‘Because you delivered a paper on it at an international seminar and listed cases where innocent men had been hanged. How would it look now if you refused to help?’

  This was tantamount to blackmail, and she had a point. However, speaking out against the death penalty was easy as an intellectual argument but far removed from the harsh truth of real cases, which speak to the emotions rather than the intellect.

  Your client is as good as dead, I thought, but kept it to myself.

  The tea arrived and I watched as Roshnee poured. I thought some more about the divergence of principle and practice, intellect and emotion. Was the death penalty a subject to be decided by majority vote or was it a subject that dwelt on a higher plane, where principle checked expediency and the popular vote? Many people opposed the death penalty when you asked them for their views, but in practice even those opposed were sometimes quick to agree that a particular killer deserved to die. An opposing voice was easily drowned out by the horrors of the crime and the din of the crowd. The more I thought about the case, the more I was convinced that our feeble voices would fall on deaf ears.

  I sighed heavily. I really had no choice. All I could see ahead was hardship.

  Roshnee must have read resignation in my sigh. She scribbled a note on the file cover. I read upside down as she wrote my name in the space for Advocate briefed.

  ‘So where do we go from here?’ I asked.

  ‘I’ll set up a conference with the client in Pretoria. He is in custody. We’ll have to bear the cost of our own air tickets and accommodation, by the way. I’ll arrange a convenient time with Cora.’

  ‘What have you got in there?’ I pointed at the file on my desk.

  Roshnee smiled for the first time during the meeting as she opened the brown manila folder to reveal a typical brief to counsel, folded over once, length-wise, and tied with the pink ribbon traditionally used for briefs to senior counsel. She turned the brief around and slid it over to my side of the desk.

  I looked down at the brief again. My eye fell on the space at the foot of the brief where the fee was to be marked when the work had been completed. Pro bono, for the public good.

  I tugged at the pink ribbon and opened the papers. I flattened the folded documents on my desk. There were only three documents, an indictment, a summary of facts, and a list of witnesses. It took less than a minute to read them.

  His name was given as Leon Albert Labuschagne. I played with the French surname on my tongue. Lah-boo-shayne. I wondered whether he pronounced it like the Huguenots did when they originally came to these shores, or whether for that family, too, the name had lost its romance under the weight of the Dutch and German that accounted for the bulk of Afrikaans names. Then it would be Lah-boo-skach-knee, with a soft g and the emphasis on the third syllable.

  He was twenty years old and he would likely be nicknamed Lappies, I thought.

  The indictment alleged one count of murder even though there were seven deceased. It specified that the events had happened at or near Pretoria, and that Labuschagne had unlawfully and intentionally killed seven men. They were named in the indictment. I thought it unusual to have only one count of murder when you had seven people dead, but that meant that there could be only one death sentence.

  I read the summary of facts aloud:

  On 10 December 1987 at about 18:00 on a deserted road near the Magazine Hill reservoir the accused forced the minibus in which the deceased were travelling from the road. He then shot each of the deceased at least once with a pistol. The cause of death of each of the deceased was loss of blood caused by multiple gunshot wounds to either the neck or upper body. After the attack the accused disposed of the pistol and fled from the scene.

  I looked at the list of witnesses again and then scanned the statement of facts a second time.

  ‘There is something wrong here,’ I said. ‘They have chosen to charge only one count of murder. Only one count,’ I said again. ‘The summary is shorter than the indictment.’ This was an exaggeration, but not by a large margin. ‘And there is no psychiatrist or psychologist on the list of prosecution witnesses. In fact, there are only nine witnesses on the list, and that includes the pathologist, the investigating officer and a ballistics expert.’ I did not count the relatives who would have had to identify the bodies.

  ‘Last but not the least of it, they haven’t given you the client’s statement.’

  Roshnee rose to the implied criticism. ‘There isn’t one. I asked them for any statement our client may have made to the police or a magistrate and they said that he has refused to speak to anyone.’ She called him our client now, I noticed. ‘In fact, he has not spoken to the police, to a magistrate or even to the pro Deo counsel. He wouldn’t see his family when they came to visit him in prison. He has not applied for bail and appears to be quite content to stay in custody.’

  It had been more than six months since the date of arrest. Why would anyone be content to sit in jail for six months?

  ‘Curiouser and curiouser,’ I said. ‘Didn’t they send him
for observation under section, uhm, section seventy something, or whatever?’ I added, trying to cast my mind back to the days when I still had to defend capital cases.

  ‘Sections seventy-seven to seventy-nine,’ she said. ‘And no, they didn’t. I think the prosecutors are afraid to initiate a psychiatric evaluation because that might open the door to an insanity defence.’

  ‘So what did he tell our colleague from Pretoria?’ I asked.

  ‘He refused to discuss the matter with him and told him he did not want a lawyer.’

  ‘Did not want or did not need?’ The thought crossed my mind that our client – I was beginning to think of him as our client now – was one of those religious or political zealots who actively seek their own death in pursuit of their faith or politics.

  ‘Want,’ she said, wasting no words.

  I cradled the brief between my elbows on the desk. ‘Are you telling me that he has not spoken to anyone at all about what happened?’

  ‘Yes.’

  ‘That is the best news you have given me so far.’ I was pleased. ‘Now this is what we are going to do. But I have to speak to my secretary first.’

  I went out to my reception area and asked Cora to call my wife and to ask her to arrange for someone to take my place at tennis. His Lordship is not going to have the pleasure of my reliable serve to drag his butt out of another losing five-setter again, I thought. Not this time.

  I had hardly reached my desk when my wife phoned and asked what the arrangements were for tennis. ‘Who is coming and what do they drink?’

  ‘Colin and Mark and Paul and Andrew, if you have found him,’ I answered.

  ‘Yes, I’ll phone him. I can see his car in the driveway.’ Andrew lived across the street from us.

  ‘Liesl …’ I forgot what I wanted to say.

  ‘We’ll need to get more beer. You know how fast Paul can down them,’ Liesl suggested. ‘Can you pick up some on the way home?’

  I smiled. That’s what I wanted to tell her. I would be late and would be unable to help.

  Roshnee and I conferred for another hour. She made notes as we spoke of evidence gathering, potential witnesses, fact analysis, a comprehensive theory of the case, and strategy.

  ‘That’s a lot of work and most of it will have to be done in Pretoria,’ she said as we were waiting for the lift. The floor was deserted by now, except for the cleaning staff doing their rounds to prepare the building for the next day.

  ‘I suspect that we are on the back foot. The prosecutors probably think they have an unanswerable case,’ I said.

  ‘They probably do,’ she agreed as the lift doors opened. She was echoing what I thought, but there was a hint of a smile on her lips when she spoke.

  ‘Damn right they do,’ I said to myself when the lift doors had closed.

  As I was packing my briefcase twenty minutes later I remembered something. I dialled Roshnee’s office and kept dialling until she answered.

  ‘Roshnee?’

  ‘Yes,’ she said, slightly out of breath.

  ‘I forgot to ask you not to mention to anyone that we are going to do the case. I’ll speak to the Junior tomorrow morning. I want the prosecutors to think that they are up against pro Deo counsel alone. If they find out that there are three of us they will just work harder. Okay?’

  She thought about it for a moment.’ I am going to have to tell LHR that you have accepted the brief.’

  ‘Well, tell them that we have agreed to take the case on the strict understanding that they will keep our involvement absolutely confidential.’

  She promised to do her best.

  When I got home at last the game was over and the sweaty members of my hastily rearranged tennis school were walking up from the court swinging their racquets at my geese. The geese escorted them all the way up to the steps to the veranda, hissing as they went, their heads lowered and their wings spread menacingly. I watched the noisy approach in silence. My sons ran past me in the opposite direction, eager for a bit of tennis before they had to turn to their homework.

  ‘Hello, Dad,’ I shouted after them.

  ‘Hello, Dad,’ they shouted back over their shoulders in unison. They ran along for a while as I watched their carefree bounds downhill. Then the little one slowed down, turned and came back up to the house. He arrived with the tennis quartet and gave me a hug.

  ‘Hello, Dad,’ he said shyly.

  ‘Hello, Bozo,’ I said, using his nickname, and mussed his hair.

  I sat down at the table and watched as he ran back towards the tennis court.

  ‘He knows where the pocket money comes from,’ said my neighbour. Andrew was a property lawyer and often worked from home.

  ‘Thanks for taking my place at such short notice, Andrew,’ I said.

  ‘No problem,’ he said. ‘I needed the exercise and the escape from the boredom of life as a conveyancer.’ He patted his stomach where the middle-age spread was beginning to show.

  ‘How did it go?’ I asked, making small talk while I eyed the Judge. He was quiet.

  ‘I arrived a little late and had to partner Colin. We won handsomely. In fact, we gave them a good hiding.’

  Andrew’s comment elicited a torrent of abuse from his opponents. They blamed the Judge for making bad line calls and each other for poaching and leaving half the court open.

  I handed some beer and glasses around. There was a pot of tea as well and I poured some for myself. I looked over the floodlit tennis court towards the city, but the haze around the lights obscured the suburbs below and beyond. Insects darted in and out of the light; some hurt their fragile wings against the filaments of the powerful lamps and fluttered to the ground in erratic spiral dives. The Judge had been unusually quiet and I studied him as he fiddled with a beer bottle. He had the broad hands of a builder. Colin was a member of a famous legal family, the Steyns. They had produced a number of Supreme Court judges and even Appellate judges over the years. For all that Dutch heritage, Colin Steyn was more English than Afrikaans.

  ‘What kept you?’ Colin asked when he caught me looking at him. ‘Or are you sulking?’

  I looked at him. He was still sweating profusely and his hair was plastered to the side of his head. ‘I’ve been lumped with a pro bono case, Colin,’ I explained.

  ‘So you are not going to make any money, are you?’ he ventured.

  ‘Too true,’ I said.

  ‘So you are sulking,’ said Mark from the shadows. Mark and his brother Paul were partners in a textile business that manufactured moth-proof blankets for the Prisons Department and for the Army and Navy.

  ‘Colin did fuck me around today,’ I said. I turned to Colin. ‘What was that about?’

  All four burst out laughing. ‘Pay up,’ Colin said to the other three and turned to me. ‘I told them you would be in a foul mood.’

  ‘You put me in a foul mood,’ I said. ‘Why did I have to robe up for it? Why couldn’t I do it in chambers as usual?’

  ‘I was bored.’

  I shook my head. ‘You were bored and I had to sweat for your entertainment?’

  He grinned behind his beer. ‘Don’t worry, man. You’ll be able to mark a bigger fee for having argued the matter in Court.’

  If only, I thought.

  The beer was disappearing rapidly down Paul’s throat. He drank straight from the bottle and downed the second while reaching for a third. ‘You look miserable,’ he said as he twisted open the third bottle, ‘and it can’t be what happened this afternoon. Colin has told us everything.’

  He was right. I was amongst friends so I unburdened a little. When I had finished, Colin said, ‘Everyone gets a bad case now and then, a hopeless case even.’

  I did not respond – he was telling me nothing I did not know – and he added, ‘No one gets away with killing seven people. You know that.’

  He then used my own words, ‘He is as good as dead.’

  I thought so too. That was the problem.

  ‘I had a case like
that once,’ he said. ‘My client was a witchdoctor who had killed five children and disposed of the bodies after removing body parts for muti. They were never found. So we had a murder trial without bodies or postmortem reports. He was given five death sentences.’

  Paul piped up. ‘I remember that. We played tennis that afternoon.’ He stabbed his finger at Colin. ‘You arrived in a foul mood. You smacked the cover off the ball all afternoon but never got a first serve in. And you said they were going to hang him five times.’

  We chuckled because we all remembered the incident, but I also remembered the anguish in Colin’s eyes when he had come to my chambers to ask for a lift home. He told me the outcome of the trial and I tried to cheer him up. ‘Don’t worry, you can always appeal.’

  ‘No,’ he had said, ‘this one is as good as dead.’

  I later read in the newspaper that his client had been hanged.

  Colin was the first to leave and after I had seen off the other three I sat down to dinner and had to tell Liesl that I was going to do a murder trial in Pretoria.

  ‘You are not going to enjoy this,’ she said. ‘Remember what happened the last time you did a murder case?’

  I remembered only too well.

  That night I dreamt I was an official at an execution.

  I stood facing the prisoners on the scaffold. I turned my head slightly so that I did not have to look at them directly. In my peripheral vision I saw four vague shapes, hooded and dressed in brown overalls. The ropes around their necks disappeared into a misty haze above their heads.

  A man walked down the row of prisoners, peering into their hooded faces. He had the neat parting of his curly black hair, the narrow moustache, the teasing mouth. It was the Executioner.

  Without warning he pulled a lever. I felt my body stiffen as three of the men suddenly disappeared from view and the fourth body hung suspended in the air above the void where the trapdoors had been.

  Still averting my gaze I saw out of the corner of my eye the remaining prisoner, in slow but deliberate motion, first remove the hood and then the noose. Leisurely almost, he began to float up into the air, looking over his shoulder defiantly. The Executioner and I stood motionless as he drifted away into the mist.