Shepherds and Butchers

by Chris Marnewick

  Moatche was hanged on 26 November 1987. He was twenty-two years old.

  I put the file back in the box and ordered a bottle of red wine, an Allesverloren cabernet sauvignon, from room service. The steward opened the wine and left and I sat down to ponder the vagaries of the legal process.

  What can you do with a hopeless case? How do you stand in court with a serious expression on your face and conviction in your voice to tell the Judge that it was a case of self-defence when the dead man had eighty-seven stab wounds? And how does an alibi go down when two of your co-accused tell the Judge under oath that you were with them at the scene? You can’t cross-examine entries out of books, fingerprints off a dressing table or bullet holes out of a corpse. The prosecutor must have enjoyed the fiasco at the defence table.

  Tshuma and Moatche had come to within a week of being hanged two years earlier, but there had been a stay of execution. Who granted it and why? The files did not disclose these details. The State President must have been advised then that there was no reason to grant either of them clemency. Why then did he subsequently grant clemency to Tshuma but not to Moatche? I could understand why Sesing did not receive a death sentence, on strict legal principle, but the hanging of Moatche seemed almost as random an act as the choice of Mr Matatule as victim.

  Did they hang the wrong man? Pierre’s note on top of the papers in the file read.

  I would drink a lot of wine through the years (though none better than that Allesverloren), but I would never be able to answer that question. I repeated it as I looked at the label on the bottle through my empty glass.

  Allesverloren. All is lost.

  Palace of Justice

  11

  The prosecution’s opening statement was delivered by Sanet Niemand. She was as hard and angular as Wierda was soft and round. Her hair was tied in a bun. She wore no makeup or jewellery. I had sensed some tension between her and Wierda, but on the surface they were polite to each other.

  Niemand had stated the facts supporting the prosecution theory coolly, without emotion or argument, reading from a prepared script. The opening statement took less than half an hour. The two prosecutors then took turns to lead the evidence of their few witnesses. James Murray was near my age. He had an ominous calm about him and spoke idiomatic Afrikaans without any trace of an accent. At our first meeting in the robing room I had teased him, asking what a good Scot like him was doing in Pretoria. He’d answered that his ancestors were Scottish missionaries who had fallen in with the local population. He was referring to my ancestors, I had thought.

  Pierre was seated a few rows behind us. An untidy middle-aged man sat next to him. They were talking like old friends but I thought nothing of it then. Labuschagne’s family, his parents and his sister Antoinette, were in the first row behind the dock. Labuschagne sat some distance away from them. Despite Wierda’s best efforts Labuschagne would still not allow his parents to see him in the cells. In a dock that could accommodate fifteen people, a dock specially erected for Nelson Mandela’s trial in 1964, Leon Labuschagne sat alone, the focus of all the drama unfolding around us.

  On that first day I had taken some time to study the spectators. Members of the public had taken their positions at the back of the court according to the side they supported, I thought. Most of the spectators in the public gallery in that half of the court behind the prosecutors were black; the majority of those behind the defence were white.

  Some voices were raised during the prosecution’s opening statement, and again when photographs of the bodies were produced and handed in as exhibits. Each time Judge van Zyl asked the public to remain calm and to allow the Court to do its job.

  In the beginning everyone had expected political grandstanding and rioting spectators, but there was neither. The prosecutors had kept their case simple, and we were keeping a low profile. As for the audience, once they had heard the basic outline of the facts as presented by Niemand, they appeared to lose interest. It seemed that everyone, black and white, had become inured to the pain and drama of a murder. It was as if we had had so much of it that even the killing of seven young men could not hold our attention for more than a day or two.

  After the opening statement, the State witnesses came to the witness box in a steady stream and left as quickly as they had come. There were no fireworks and no cross-examination to speak of. We avoided confrontation and we did not seek to justify Labuschagne’s actions. We shunned the media and stuck to our plan to reveal only as much of our case as we had to.

  During the prosecution case we heard the evidence of a man from the municipal water department about how he had gone up to the reservoir to take the water level and found the bodies in the mud. There were fresh tracks around the bodies, but the bodies were untouched. Various policemen gave evidence about their investigations at the scene, about how they had found the murder weapon, as they called it, sunk into the mud, and how they had traced Labuschagne from the number plate of his bakkie. The key was in the ignition, the policemen told the Court, but the bakkie would not start. The prosecutors were to use this fact against us.

  We had offered to admit the post-mortem reports, but instead the District Surgeon was called to give evidence about his findings, no doubt to lay the foundation for an argument that the shootings had been planned and deliberate; in other words, that it had been a cold-blooded execution of the victims. We considered cross-examining him about the execution process at Maximum, but decided against it. We needed to keep our powder dry, and our investigations were in any event still in progress.

  Roshnee pointed out to us that we had slipped off the front page of the local newspapers. By the third day we were already on page four. But it would not stay that way. The drama was to come in the defence case.

  Wierda had the task of cross-examining the last State witness. When he sat down, James Murray immediately started his re-examination.

  We were nearing the end of the prosecution’s case. Our strategy had been not to emphasise or compliment any part of the prosecution’s evidence, and our cross-examination had been short. In the case of some witnesses we had no questions at all. The result was that after a day and about an hour we were set to start the case for the defence.

  Murray was on his feet. Sanet Niemand hardly ever glanced in my direction. She also wrote down every word that was said, even during the staccato exchanges when an objection was made. I assumed that she had done the research for their team and was in charge of the administration of the case. We kept a polite distance from her.

  The three figures on the imposing bench watched the last prosecution witness intently. The bench was an ornate work of art, a raised, fully enclosed wood-panelled structure approximately three and a half metres wide and three metres deep. Three high-backed swivel chairs stood side by side under a canopy of even more elaborate woodwork. The canopy was in the shelter of an arch, supported on either side by thick wooden columns. Behind the Judge’s chair was the door leading to the Judges’ quarters, out of bounds to all but the lawyers and clerks who had legitimate cause to enter the inner sanctum of the court. In front of the chairs was a polished wooden table, about one metre wide and spanning the full width of the bench.

  I thought about the progress of the trial thus far.

  The prosecution case had been presented with cold and clinical efficiency, without fanfare. James Murray was effective and professional. While treating me with the courtesy demanded by the etiquette of our profession, he quietly went about the business of putting our client on the trapdoors under the ropes. The exhibits he introduced were of the nature of plans and photographs. He was confident enough to allow his Junior to perform some of the important tasks of the trial, and experienced enough to let the evidence speak for itself. Here are the bodies. See the bullet holes in them. Here is the murder weapon. It belongs to the defendant. Look at these photographs. There is the defendant’s bakkie next to the bodies. See where the bullets have passed through the bodies and into the side of the min
ibus. When the defendant’s bakkie wouldn’t start he was forced to flee on foot.

  The post-mortem reports told their own grim tale of the heights and weights of the deceased, of entry and exit wounds and the tracks of the numerous bullets. And they were all fired by the defendant, Murray pointed out repeatedly.

  Sanet Niemand led the evidence of the investigating detective, a Detective Warrant Officer. He gave evidence on Labuschagne’s arrest and his silence when confronted with his pistol. The policeman produced Labuschagne’s statement, but it contained nothing of consequence. The statement was in the policeman’s handwriting:

  I have been advised of my rights and that I am being charged with seven counts of murder. I decline to make a statement.

  Q. Do you want a lawyer?

  A. (The accused gave no reply.)

  The registrar coughed behind her hand. She wore robes and sat in the anonymity that her uniform provided, directly in front of the Judge in her own domain of wood panelling and red leather. From her slightly elevated position she could face the assembly of people in the court, from the stenographer, whose table stood in front of hers, to the advocates in the first row of seats. The attorneys’ table and the dock completed the well of the court. Finally there were the public benches behind the dock and in the gallery above.

  The media were in a privileged position, occupying the two rows of seats in the jury box. Trial by jury had been abolished because it had become clear that the jury system simply could not work in a society divided by race.

  Directly opposite the jury box on the right was the witness box, occupied for the moment by the prosecution’s last witness. I had lost interest in him; he could not make our case much worse than it already was. The witness box was enclosed on three sides by the same dark wood panelling that enclosed the bench. Its floor was just slightly raised – twenty centimetres or so – above the carpeted floor so that a witness always stood slightly higher than counsel, perhaps as an indication of their relative importance in the process of arriving at the truth.

  My rambling thoughts were interrupted when James Murray informed the Judge that he had no further questions and Judge van Zyl nodded in the direction of the witness. By this time I had got used to the way he controlled his Court with nods and the inclination of his head instead of words. A tap of his pen on his bench pad meant, wait, you are going too fast. He only had to tap once and I knew what to expect. When he took his spectacles off it meant he needed time to think. We had to watch his pen and his eyes to adjust the pace of our questions. I quickly learnt that I would have to keep an eye on him throughout.

  ‘You may step down,’ he now said to the witness, ‘and you are released from further attendance.’

  James Murray had remained standing and announced the close of the prosecution case. ‘That is the case for the State, M’Lord and gentlemen Assessors.’ Then he sat down.

  It was our turn at last, after months of preparation. While I knew the case materials backwards I could still feel some nervous tension in my shoulders. Wierda and I knew that everything we said would be subjected to close scrutiny, that every proposition would be tested, not only by our opponents but by the Judge and also by the media. Every word would have to be weighed and measured to fit exactly into the scheme of the defence we had prepared.

  I started tentatively. ‘May it please M’Lord and M’Lord’s Learned Assessors. We intend to call witnesses and we have an opening address.’

  ‘Yes, carry on.’ Judge van Zyl was not wasting any time; his posture said: get on with it.

  I placed my trial notebook on the lectern in front of me and adjusted my robes with a tug at the shoulder. It was a nervous habit. I could feel the focus of the spectators shifting to our table.

  ‘This is an extraordinary case,’ I opened quietly, ‘where the evidence for the prosecution is undisputed and the prosecution’s case is, in a way, also the case for the defence. The prosecution has been at pains to show what has happened. The defence will explain why it happened. The prosecution’s case has been about the what and the how. Our case is about the why.’

  Judge van Zyl and his Assessors did not stir, but they were watching me. There had been so little cross-examination of the prosecution witnesses that they had not seen much of me; I now got the impression that they were observing me very closely. I continued without having to look at my notes.

  ‘This is essentially a case of taboos.’ I paused for a moment before I explained. ‘First there is the taboo of killing. The killing of a human being is viewed with universal disapproval, and the more brutal the killing, the greater the disapproval with which members of the public view the event and the killer. Multiple killings increase that disapproval to the point where ordinary, right-minded members of society are prepared to cast the killer to the wolves without a trial.’

  There was still no reaction from the bench. No one except Niemand was taking notes.

  ‘The second taboo is the taboo against interracial crime. For decades our courts have viewed interracial incidents, especially in crimes of violence, as more serious and have punished their perpetrators more heavily than the norm for similar crimes where race was not an element. And here we have had a killing across the racial divide: the defendant is white, the deceased were all black.

  ‘The third taboo is the taboo against the so-called blackout defence. In strict legal theory it is a defence against the actus reus element, although that principle has not always been expressed clearly in our textbooks and judgments. It could also be a defence against the mens rea element. But we are going to lead evidence that there was no legal act, no act to which the law attaches legal consequences in this case.’ I had used old Latin legal terms for the criminal act and for state of mind.

  The Judge made a note in his notebook. I waited for him to finish and when he looked up and nodded at me I made sure to engage the two Assessors in eye contact before I resumed.

  ‘M’Lord and gentlemen Assessors, the prosecution has to prove the following elements on a charge of murder.’ I used technical terms to list the legal requirements for a conviction on a murder charge. I held up a finger for each element as I spoke: ‘Murder is an

  one – unlawful

  two – intentional

  three – act

  four – that causes the death

  five – of another human being.’

  I told them a second time that our defence was that there had not been a criminal act because Labuschagne lacked criminal capacity.

  The Judge shifted in his high-backed chair and when he spoke his tone was charged with incredulity. ‘Are you suggesting that there has been no act, when we have seven bodies here?’

  He looked sideways at each of his Assessors in turn and said something under his breath. I was sure the reporters nearest to the bench could hear him as clearly as I could. ‘Moenie my vertel perdedrolle is vye nie!’ I got the message.

  I played to the mood of the bench. ‘According to case law M’Lord is entitled to be sceptical, as we shall demonstrate to M’Lord and the Learned Assessors when we address the Court on the law during our closing argument.’

  When there was no response I carried on, using we to include Wierda in the submissions, ‘We mentioned the third taboo earlier because it is entirely natural to be sceptical of this defence when the killing has admittedly been committed by the defendant’s hand.’

  Judge van Zyl intervened. ‘You had better explain very carefully what the defence is as I am at a loss to understand how you can say that there was no act when you have admitted that the accused has killed the seven deceased.’

  ‘With respect, M’Lord,’ I began, ‘in the statement explaining the basis of the defendant’s case, which we handed in at the commencement of the trial, we explained that the defendant admits that the deceased were killed by his hand but denies that his actions had been, to quote from the defence statement, voluntary and conscious. The issue is whether there has been an act within the requirements of the la
w, an act which was both a conscious and a voluntary act.’

  He intervened again. ‘What you have said relates to the defendant’s state of mind, not to his physical acts.’

  I wanted to pacify him by referring to case law and textbooks dealing with the principle that unconscious and involuntary acts are not punishable, but as I reached for a Law Report he stopped me.

  ‘You may assume that I know the law,’ he said.

  I needed a different angle. Before I could speak again, I heard Wierda’s pencil tapping against his teeth. Tap tap tap. I tried not to let it distract me.

  ‘The underlying facts of the events are common cause and were proved by the prosecution’s witnesses. May we remind M’Lord and the Learned Assessors of the events of the evening of 10 December 1987, as deposed by the prosecution’s witnesses?’

  I did not wait for Judge van Zyl to respond to my question. ‘We would like to emphasise that the facts of the prosecution’s case are also the facts of the case for the defence – the events starting at Saxby Road, the car chase all the way down the Old Johannesburg Road, Jan Smuts Road, down to Magazine Street and up to the reservoir on Magazine Hill. All of those events are common cause. It does not matter whose fault those events were. The events at the reservoir are also not in dispute. Even the brutality of the killings is an essential component of the defence.’

  As I spoke I could see the Judge studying the prosecution’s exhibit, a photo album.

  ‘It is the very brutality, the savagery with which the deceased were killed,’ I continued, ‘the scale of the event – seven fit and strong young men killed by a single individual – that calls for closer scrutiny. The ritualistic positions in which the bodies were found is another factor prompting an intensive enquiry. The prosecution has adduced no evidence of a motive and there appears to be none. What we ask for is a rigorous but fair examination of the defence and the defence’s evidence in the light of all the circumstances. We ask for no more than that.’