Shepherds and Butchers

by Chris Marnewick

  Underfoot the carpet was pale pink; it had once been maroon or dark red.

  The Warrant Officer had been sitting in the same position every day in the row immediately behind the prosecutors, but there were no papers on his table. He was a man of sparse habits, I thought, a man of secrets. I wondered how many young men he had broken in for duty as gallows escorts and how many of those had been broken as a result. I noted that the defence table, the witness box and the Judge’s chair formed a perfect triangle, each leg about five paces.

  The dock was situated behind the rows of lawyers’ tables and effectively divided the room in two as it ran virtually the full width of the room. A steep and narrow staircase connected the courtroom to the cells below. That would be the route Labuschagne would take, if we lost.

  Take the prisoner down, Judge van Zyl would say.

  Antoinette Labuschagne kept superimposing herself on my random thoughts. She had reaffirmed what every woman in my family had taught me over the years.

  Men are scared of other people’s pain, but women rush in to help, to cradle and to comfort.

  I shook my head to banish Antoinette from my thoughts and shifted my attention deeper into the room. Behind the dock was a waist-high wooden barrier extending across the room, with small gates where it abutted the walls on either side. The public had hard benches arranged in rows with an aisle down the middle. There was more seating in a balcony at the back of the room.

  There were distinct shadows under the tables and benches. As I looked up to find the source of light I saw a row of lights along each of the side walls. Then I counted ten large lead glass windows on either side above the light fittings. These had intricate patterns and let in copious amounts of natural light through their ivory, green and turquoise panels. The higher I looked, the more light there was. Beautiful though these windows were, they were outshone by the large copper chandelier and the two skylights overhead.

  The glass in the windows was dirty and needed cleaning.

  Wierda was the first to return to court. He came in, saw me in the registrar’s seat and without a word went to our table and sat down. He didn’t make eye contact with me. I joined him when the cell sergeant brought Labuschagne up from the cells; I was annoyed that the sergeant also avoided my eyes.

  The court quickly filled up in anticipation of the cross-examination. There was excitement in the spectator benches.

  I had been on my feet for nearly three days and would have the opportunity to take the weight off my feet and to rest the tired muscles of my lower back. But I would have to keep up the concentration.

  This was where our case would be subjected to the scrutiny of cross-examination, where its improbabilities and inconsistencies would be exposed.

  Cross-examination is the greatest tool to discover the truth, someone had said once. It might have been something of an overstatement, but in many cases it was true.

  Palace of Justice

  42

  Judge van Zyl started by inviting James Murray to begin. ‘Yes, Mr Murray.’

  Murray rose to cross-examine. Sanet Niemand sat next to him, keeping her back stiff, a neatly tabulated notebook on the table in front of her. The book was open, her neat writing on display. The spotlight was back on the prosecutors for the first time in a week. The registrar reminded Labuschagne that he was still under oath.

  At the defence table our heads were turned to the right. We were keen to see what style of cross-examiner Murray was. While he too held the rank of senior counsel I had not previously encountered him in practice. But then, I dwelt almost exclusively in the civil courts; the prosecutors were criminal law specialists attached to the Attorney-General’s office. Murray’s reputation was a concern. According to robing room talk, he was a deadly mix of tenacity and competence. We call him the Angel of Death, a local junior had said, because he always gets the death sentence.

  When the Judge nodded Murray put his notes on the lectern in front of him and started with the standard acknowledgement. ‘As the Court pleases,’ he said and continued, ‘So you say that the execution process and the work in the pit room upset you greatly? Is that what you’re saying?’ No introductions, no niceties, and no warm-up. He went for the jugular. I could see immediately that the cross-examination was going to be short, brutal, and to the point. This man was not going to take any prisoners.

  Labuschagne nodded.

  ‘You’ll have to speak up,’ said Murray. ‘The evidence has to be recorded and a nod or a shake of your head will not be recorded.’ He gave no sign that he had been affected in any way by the displays of emotion that had preceded the tea break.

  Labuschagne nodded again, surprised by the bluntness of the attack and the proximity of his antagonist. Murray was less than eight feet from the witness box, directly in line with Labuschagne’s left shoulder.

  ‘You have to speak and when you speak you have to speak up, understand?’ Murray said a second time. He was making sure that Labuschagne knew who was in charge.

  Labuschagne turned to face him. ‘Yes, I understand, sir.’

  The Judge wasn’t having any of that either and entered the fray. With a glance in Murray’s direction, he said, ‘Please turn back towards the bench so that you face us. Mr Murray is right. You must please speak up, but you must direct your answers to us.’ He indicated himself and the two Assessors. ‘You may look at Mr Murray when he asks a question, but you must direct your answers to me. Can you do that?’

  ‘Yes, sir.’

  ‘Go ahead,’ said the Judge. Murray repeated the original question, word for word. It was obviously a prepared question. ‘So you say that the execution process and the work in the pit room upset you greatly. Is that what you’re saying?’

  ‘Yes,’ said Labuschagne.

  ‘But haven’t you been playing the fool in all the sections of the prison, including the gallows room, the pit room and even in the chapel?’

  ‘No. Not me.’

  I could see that the Judge had caught the subtle qualification of the answer. I turned to Wierda and whispered, ‘We are in for a torrid time. This is going to be a bloodbath.’ Wierda passed a hastily scribbled note to me. Yes, but whose blood? I don’t know how he could have had any doubt about that.

  Murray stared at Labuschagne for a while, his attitude exuding disbelief. ‘Well, let me see if I can give your memory a jolt. Can you recall an occasion when you gave a new warder a fright by putting white chalk on your face and hiding in one of the freezers in the autopsy room?’

  The slightest flicker of recognition appeared in Labuschagne’s eyes, an answer in itself.

  ‘And then that warder was sent over by one of your friends to open that freezer and you sat up and pretended to rise from the dead? Do you remember the incident now?’ Murray insisted.

  ‘It wasn’t me,’ said Labuschagne, but there was no conviction in his voice. He appeared surprised by the angle of attack.

  Murray ignored the answer. ‘You were even dressed in one of the death shrouds and you stuck your tongue out of the side of your mouth.’

  ‘No. I told you it wasn’t me. It wasn’t me,’ Labuschagne repeated.

  ‘So it was one of the other warders, was it?’ Murray could not lose on this tack. It did not matter whether Labuschagne had participated in the tomfoolery. What mattered was that the atmosphere of the place was not as serious or sombre as he had described in his evidence-in-chief.

  ‘Yes, it was,’ Labuschagne agreed.

  ‘But you smiled when I reminded you of the incident. Why?’

  ‘I don’t know that I smiled.’

  Judge van Zyl had been watching the exchange intently. ‘Yes, you did,’ he said. ‘I saw it too.’

  Labuschagne shifted his weight to his left and looked towards the defence table, but we could not help him, of course, and had to feign indifference. Wierda had told him more than once that he would be on his own once cross-examination started. ‘When you’re under cross-examination you will be on your own. We
can’t help you. So keep your answers short. Don’t volunteer information. If we want an explanation, we’ll ask you about it later.’

  ‘So what is your answer?’ asked Murray. ‘You remember the incident now, don’t you?’

  ‘Yes, I heard about it.’ Labuschagne had had time to think. He was quick on the uptake.

  Murray changed topics immediately. He had made a small gain and was not going to ruin everything by inviting an explanation.

  ‘Didn’t you personally incarcerate two prisoners in those cells next to the gallows after you had caught them fighting? And didn’t you show them the gallows and tell them they were to be hanged the next day because they had been giving you too much trouble?’

  ‘No, I did not,’ said Labuschagne. ‘I could not possibly have done that. Do you know how many different doors there are from the general cell sections to those cells?’ He answered his own question. ‘Six at least. Every door has its own key. No one has more than one key. The Warrant Officer kept the keys to the gallows in his safe. I could never have got in there.’

  ‘That’s how I know what happened. All those other warders played along,’ suggested Murray. If he could goad Labuschagne into losing his temper he could immediately exploit that.

  ‘The Warrant Officer would have fired the lot of us for breaking his rules. He is fanatical about security.’

  Labuschagne was holding his own during the exchange, but I was concerned that he was getting too expansive in his answers.

  Murray sealed his point with a question that Labuschagne could not answer. ‘Yes, but you told us you were the only one who went up there to work on the stopper bags, didn’t you?’

  There was no answer.

  ‘You used to smoke, didn’t you?’ Murray then asked without bothering to look towards the witness box.

  ‘I started smoking the day of my first hanging.’

  ‘And you were allowed to smoke in the prison, even when on duty?’

  ‘Yes, everyone was allowed to smoke.’

  I wondered where this was leading.

  ‘You once put a lit cigarette in the mouth of an executed prisoner before you closed the coffin and took his body down to the chapel, didn’t you?’ There was a faint smile on Murray’s lips.

  ‘No.’ The answer was blunt.

  ‘And then, during the funeral service, and with the man’s family in attendance, smoke came from the coffin, didn’t it?’

  Labuschagne shot a worried look at the Warrant Officer who was still sitting in the row of seats behind Murray. Their eyes met and stayed fixed for a moment. Labuschagne shook his head almost imperceptibly before he turned towards the Judge to answer.

  ‘No,’ he said. I had been watching Labuschagne and did not notice whether Judge van Zyl or the Assessors had seen the interaction between Labuschagne and the Warrant Officer.

  ‘And you were the hero of the day when you quickly went and turned on the ventilator fans, weren’t you?’

  ‘No,’ said Labuschagne, this time with an emphatic shake of the head.

  ‘You did a number of things like that, didn’t you? You played the fool in many ways.’

  ‘No.’

  ‘Let me give you some further examples,’ said Murray. He picked up his notes and read from them.

  ‘You crept up on the catwalk and scared the prisoners in C Section by making strange shuffling and groaning noises.’

  ‘No, that’s just not true. We heard those noises too and we even investigated them.’

  ‘And you sprayed each other with the hose when you were cleaning the pit room?’

  ‘No.’ Labuschagne shook his head. He was getting animated. ‘Some of us did get wet while cleaning up the pit, but it was not a joke. If you sprayed any of the warders with the hose in that room they would have beaten you to a pulp right there, and the Warrant Officer would have put you on the catwalk or the guard towers.’

  Murray decided to re-establish his authority. ‘Please listen very carefully to my questions. All you have to do is to say yes or no. If any explanations are required, I will ask you for an explanation. Otherwise you can leave your explanations for later when your advocate re-examines you. Understand?’

  ‘Yes.’

  I looked at Judge van Zyl. How would he respond to Murray’s admonishment of the witness? This was the Judge’s domain. The Judge did not stir. I decided to watch him more closely. I didn’t know how well he knew James Murray and wanted to check whether he would treat Murray differently from the way he had treated me.

  Murray had not finished the topic. ‘You made fun of the dead prisoners’ bodies by making jokes about their anatomy?’ he suggested.

  ‘No.’

  There was a seamless change of direction. ‘I suggest to you that your evidence that you were upset by the execution process and by what you had to do in the pit room is just a facade, and that in truth you really enjoyed the work.’

  ‘No.’

  ‘You, like others who were working there, saw yourselves as the Executioner’s assistants and you were eager to be on his team.’

  ‘No,’ he said with a note of indignation.

  ‘Being a gallows escort was preferred to walking the catwalks or sitting on your own for hours in the guard towers, wasn’t it?’

  There was a long pause before the answer came. ‘We didn’t like working in the towers, and the Warrant Officer allocated catwalk duty as punishment to warders who had done something wrong or displeased him somehow. But escort duty was worse than any other job in there.’

  ‘My point is that you volunteered for escort duty rather than taking catwalk or tower duty.’

  ‘I did not volunteer for it.’

  Murray pounced immediately. ‘But you did not like catwalk or tower duty, did you?’

  ‘No one did.’

  ‘I am not interested in the others. I am asking you. You did not like catwalk or tower duty, did you?’

  Labuschagne was provoked into ignoring Wierda’s instructions to keep the answers short. ‘The catwalks are like a cage,’ he said. ‘Like a separate prison inside the prison. They lock you in for the shift, with your rifle and ten rounds, just below the steel roof. Even in winter it is hot up there. You’re up there alone, hot, uncomfortable, thirsty and you have to walk around and look at the prisoners through the windows into their cells. It would be more comfortable in the cells below than up there.’

  Labuschagne was about to start again when Murray suggested an answer. ‘So that is why you volunteered for escort duty, is it not?’

  There was no answer. Labuschagne stood with his head down, staring at the microphone in front of him. All his talking had allowed Murray to score a direct hit.

  Murray decided to press the advantage.

  ‘You called the prisoner whose eyes bulged the most after an execution Pop-Eye.’

  Labuschagne looked directly at Murray, then at the Warrant Officer.

  ‘No,’ he said at last. It was not clear whether he was denying Murray’s suggestion or whether he was reprimanding the Warrant Officer.

  Murray again changed tack to keep Labuschagne off balance.

  ‘The warders on the catwalk and in the towers were armed with R1 semi-automatic rifles and ten rounds of ammunition, you said?’

  ‘Yes.’

  ‘But you never used those rifles, did you?’

  The answer came very promptly. ‘No, that is not right. They have shot some prisoners and some warders have shot themselves.’

  Murray appeared surprised by the answer and turned to look at the Warrant Officer. When the Warrant Officer shook his head, Murray turned back to Labuschagne.

  ‘I put it to you,’ he said in a stern voice, ‘that there has not been any occasion when a prisoner was shot by a warder.’

  Labuschagne picked up one of the registers on the edge of the witness box. He answered as he was paging through it.

  ‘That is not true. We shot four dead.’

  The answer was not what Murray had expected. He t
urned to look at the Warrant Officer again and raised his eyebrows in an unspoken question. The Warrant Officer shook his head again. Murray measured his next question carefully.

  ‘When did that happen?’

  ‘On the thirtieth of September 1962.’ Labuschagne picked up one of the registers and started reading from a flagged page. ‘Here,’ he said, pointing with his finger at the page, ‘we shot four who were trying to escape on the thirtieth of September 1962. Philemon Mhlungu, Titos Malinga, and,’ he turned over a few pages, ‘Sam Ndhlovu and Robert Shangase.’

  I thought Judge van Zyl would object to the use of the names, but he didn’t. He was watching the contest with keen interest.

  Murray sneered at the answer. ‘You weren’t even born then. And Maximum Security Prison had not been built yet, had it? And you were not personally involved, were you?’ The questions came out in a cluster.

  ‘But you said that we’ve never shot a prisoner. That’s not true,’ said Labuschagne.

  ‘You never did.’

  ‘But you said we never shot anybody.’ Labuschagne had turned to face Murray.

  ‘Don’t speak to Mr Murray. Direct your answers to me,’ said the Judge.

  ‘Yes, sir.’ Labuschagne turned back to face the bench.

  ‘What register were you reading from there?’ asked Murray.

  Labuschagne opened the register at the first page and slowly turned all the pages over until he got to the last page. ‘It is the register of death sentences from November 1956 to April 1965.’

  I was anticipating another salvo of questions from Murray when the Judge intervened. ‘How did you know about that incident?’ he asked.

  ‘The Warrant Officer told us about it, sir,’ said Labuschagne. ‘He reminded us of it constantly. He said our job was to keep them in custody until the Hangman had to take over and if we had to do it by shooting them when they tried to escape or caused a riot, then that was what we had to do.