‘How long will he be?’ asked the Judge.
‘No more than an hour, I think.’
‘And the inspection, how long do we need for that?’ The Judge looked at me.
‘We’ll finish by lunchtime,’ I answered immediately.
I was keen to get agreement without having to explain why I wanted to go to the reservoir, but I saw Murray shaking his head. The Judge must have seen the slight shake of the head too and he asked, ‘You don’t agree?’
‘It is not that I don’t agree, Judge, it is that I have a second witness to call in rebuttal and I think he will be a while.’
‘Oh, who do you intend to call?’ Judge van Zyl appeared as surprised as I was.
‘We want to call the Warrant Officer.’
For a moment I did not know what to say. Wierda and I had toyed with the idea that the prosecution might call the Warrant Officer at some stage, but we had dismissed the thought because the Warrant Officer’s name did not appear on the list of prosecution witnesses and no mention had been made of his evidence during the prosecution’s opening statement or cross-examination of our witnesses. It must have been an afterthought.
‘I would object to that,’ I said, thinking on my feet as I was speaking. ‘You can’t call witnesses in rebuttal except where the defence bears the burden of proof on a special defence, or where the evidence is of a technical nature or involves expert opinion in response to defence expert evidence.’
‘I’m going to call him on the facts underpinning the expert opinions, yours and mine.’ Murray sounded confident and addressed me directly.
Before I could respond Judge van Zyl intervened. ‘I’m going to allow that.’ He looked down at his hands. They were palm down on his desk with his fingers spread wide. ‘I am going to allow it unless you convince me otherwise tomorrow when we start. And then you had better have good authority that says I can’t do this. I would like to hear what the Warrant Officer has to say.’
I wanted to continue arguing the point, but there was something in his eye that made me stop. I could address him on the point in open court in the morning; it would not be so easy to silence me then. But it would not be easy to persuade him to change his mind either.
‘We’ll resume as usual in the morning then, and take it from there,’ he said. ‘We’ll hear the rebuttal expert James wants to call, and then go on the inspection. We can hear what the Warrant Officer has to say when we get back.’
We walked back in silence to the robing room. Murray and Niemand must have been wondering what we were plotting as much as we were with regard to them.
Wierda and I had been working on the closing argument from our first meeting months before. Up to now all we needed to do was to finalise a few details, but now we would have to think of the different angles that might be introduced by the further evidence.
We left Murray and Niemand in the robing room.
Wierda walked me back to my hotel and told me about our last case as we strolled among the workers and shoppers on their way home. We had had a relatively good day and the city was serene in the late afternoon, but we still had a lot of work to do and the forthcoming evidence of the prosecution expert and the Warrant Officer added an element of uncertainty I could have done without.
V3771 Willem Maarman
57
Willem Maarman was twenty and Gert Engelbrecht seventeen when they broke into Mrs Sophia Schoch’s house and robbed, raped and killed her.
Mrs Schoch was a seventy-three-year-old widow who lived alone in her house at Halmanshof near Piketberg. She was last seen alive on the morning of Saturday 4 October 1986, at about seven o’clock. Her car was found the next morning in a damaged condition a short distance from her home. When enquiries were made, Mrs Schoch was found dead in her home.
Mrs Schoch had numerous injuries suggesting that she had been subjected to a prolonged and sustained attack. Her skull had been driven into her brain by at least three heavy blows delivered with a large stone she had kept in her house as a doorstop. She had bruises and abrasions of the mouth, internally and externally, and a cut on the chin. There were bruises of the neck. She had been beaten so savagely about the head that the conjunctiva of the left eye had become detached. There were numerous bruises and abrasions of both arms – classic defensive injuries usually suffered when fending off an attack by raising one’s forearms in front of one’s face or above one’s head. There were similar injuries to Mrs Schoch’s legs. Her liver, stomach, left kidney and spleen had been bruised. There were also injuries to her genital organs consistent with rape.
Maarman and Engelbrecht were arrested shortly after Mrs Schoch’s body had been discovered. They gave slightly different versions of the events at different times. At a preliminary hearing in the Magistrates’ Court they gave explanations.
The Magistrate questioned Maarman first:
Q. Did you break into Mrs Schoch’s house at Halmanshof on 4 October 1986?
A. Yes, the door was not locked. I opened the door and walked in.
Q. What did you do then?
A. Mrs Schoch wanted to get out, but we prevented her.
Q. Why did you go into the house?
A. I wanted to take things in the house.
Q. What did you do when you were in the house?
A. When Mrs Schoch tried to leave we prevented her and wrestled with her. When I saw that she had lost her spirit I took a knife in the house and stabbed her one blow behind her neck with the knife. She wanted to wash off the blood and I took her to the bathroom where she washed herself. I then took her to the bedroom and told her to take off her clothes or I would cut her throat. She took her panties off. I lay on top of her and had sexual intercourse with her. She said I should not, she was too old for that type of thing.
Q. What happened after you had had intercourse with her?
A. I was afraid she would tell other people of me and I then took a stone that was lying near the television and hit her three times on the head with it.
Q. Did you want to kill her?
A. Yes.
Q. Did she die as a result of the blows you had struck her?
A. Yes.
Q. What did you do then?
A. We took things in the house and put them in the car.
Q. Was it those items the prosecutor read out?
A. Yes.
Engelbrecht gave a far more detailed version. He had known Mrs Schoch as he had previously done some work for her. He said they were collecting wood in the bush near Mrs Schoch’s house when Maarman asked him if Mrs Schoch had a firearm:
I said I did not know. He said we should go and look […] We walked around to old lady Sophie’s house […] When we got to the back door [Willem] and I took our shoes off. [Willem] opened the back door. He walked in front and I followed him […] [Willem] opened his pocket knife.
The old lady came out of the lounge to the kitchen. Just as the old lady put her foot in the kitchen, [Willem] grabbed her. He pinned her down on the floor and asked her where her money was and if she wanted to live. [Willem] said I should go to the bedroom and search it in the meantime. When I came out of the room again, I saw blood running down the old lady’s face. I went to another room and searched for money because [Willem] said I had to look for money and a revolver. I found nothing there. When I came out of the room I found [Willem] and the old lady in another room. [Willem] was pressing the old lady on the ground. [Willem] asked me if I had finished searching the house. I said no. I went to the kitchen […] In the door of the fridge there was a bottle of wine […]
I went to tell [Willem] that I had found a bottle of wine. When I came into the room, I saw that he was having intercourse with the old lady. The old lady asked me to speak to [Willem]. But I went to the kitchen again […] I saw that there was a lot of tinned food in the cupboards. I stacked some of the tinned food on the table […] I then went back to the bedroom and [Willem] and the old lady came and lay on the bed […]
I packed the groceries I
had put on the table in the kitchen in a sack. While I was busy packing the things in the sack, [Willem] and the old lady came out of the bedroom. When they got to the passage, [Willem] hit the old lady against her head with a type of a rock thing. The old lady collapsed on the floor. When she groaned, he hit her two more blows on her head. [Willem] helped her get up and took her to the bathroom. I went along. The old lady washed the blood from her face […]
[Willem] asked the old lady if there was more wine. The old lady then walked to the dining room and said I must open the cabinet […] I found a bottle of KWV brandy in the cabinet. I took the bottle to the kitchen. After that all three of us went to the room where [Willem] and the old lady had been lying down. [Willem] opened the wooden chest there and he found a new shirt, still in its packaging, and a pair of used socks. We walked out of the room again. When we got to the passage the old lady collapsed. [Willem] left the old lady in the passage and he and I went into the lounge. I found the car keys in a basket there and showed them to [Willem] […] Behind the radiogram was a big tape recorder and [Willem] took that out […]
I took the tape recorder to the kitchen. While I was there I heard the old lady groan, and saw [Willem] just hitting her repeatedly. He and I went into the bedroom again. I found a shiny wristwatch and gave that too to [Willem]. We went out. Each of us carried a sack with the goods. When we got outside we put our shoes on. [Willem] threw the rock with which he had hit the old lady across the ditch. He and I went to the garage and I opened the doors. [Willem] got in behind the steering wheel and I got into the passenger’s side. He pulled the car out and drove nearer to the house and we then loaded the things we had packed in the car.
The Court found Maarman and Engelbrecht guilty of murder on 3 June 1987. The robbery and housebreaking charges overlapped and the Court substituted a single crime for the two, housebreaking with intent to rob and robbery.
Since Engelbrecht had been under the age of eighteen years at the time of the murder the death penalty was not obligatory in his case. There were no extenuating circumstances in Maarman’s case. On 4 June 1987 the Judge sentenced Maarman to death for the murder. He also sentenced him to three years imprisonment on the housebreaking and robbery charge and to eight years on the rape charge. There was no appeal.
Maarman was one of those hanged on 10 December 1987. He was twenty-two years old.
There was nothing new to learn from Maarman’s case. We had seen too many killers just like him killing old women in their homes. Rape and pillage was their way of life. I didn’t have the energy to argue against Wierda’s proposition that no one would shed a tear for Maarman.
Wierda and I had by now read and analysed the cases of all of the thirty-two men hanged during those last two weeks before the events at the reservoir. I couldn’t say that the lessons we had learnt were consistent, and I still couldn’t see a clear picture behind the matter-of-factness of the killers’ own account of their deeds.
We spent the night preparing themes for the cross-examination of the Warrant Officer. We had quickly given up on the idea of objecting to his evidence being given at such a late stage. The authorities were against us. The Judge is not a referee; his function is to ensure that justice is done according to the law, and to that end he was entitled to allow witnesses to be called out of turn and even to call witnesses himself.
We divided the work. Wierda worked on the expert witness while I prepared for the Warrant Officer’s evidence. We called Pierre de Villiers in, but he could offer nothing that could be used in cross-examination. There was nothing on the Warrant Officer in the official records.
I made a list of the themes I would explore with the Warrant Officer:
Lack of selection criteria
Lack of training
Lack of support – counselling
Prison culture of violence
Unrelenting pressure on warders to act as escorts
Wierda interrupted my train of thought with a question about the prosecution expert. In the early hours of the morning it struck me that the Warrant Officer might be called to say that Labuschagne had been a willing, perhaps even a keen participant in the execution process.
I added themes on a different tack to my list:
Suicides (of prisoners)
Suicides, alcoholism and violence / fighting behaviour (by warders)
Levity, pranks and jokes as defence mechanisms
The Warrant Officer would be a fifty-fifty witness. His evidence would no doubt hurt our case, but there would also be opportunities for us to elicit favourable evidence from him.
We went to bed tired but pleased with the results of the work we had done.
CLOSING
Prosecution & Defence: 12-14 October 1988
Palace of Justice
58
When James Murray called their expert to the witness stand, I half turned in my seat to see who it was. A tallish, bespectacled man in his mid-forties was shuffling past the knees in the second row of the public gallery behind the dock. All eyes were on him, except Leon Labuschagne’s. He had reverted to his zombie state.
The man made his way towards the witness box carrying a red folder. As he passed me he looked down and surreptitiously winked at me. For a moment I didn’t know whether I had imagined it, but when I saw a little smile on his lips as he turned in the witness box to face the Judge I knew I had not been mistaken. I was intrigued. Did he know me? Did I know him?
I turned to Wierda. ‘Do you know this guy?’
‘No,’ he said emphatically, ‘never seen him before.’
But I had. The man had been sitting in court every day of the trial so far, always in the same seat two rows behind the dock, on the left side of the court behind me, a perfect position from which to observe Labuschagne without being detected. I had to admire the prosecutors for their tactics; they must have planned this well in advance. I had not once seen the man with them. They had hidden him well, in plain sight. They must have conferred with him in their offices in the mornings, or after hours.
What was worse was that the man had been sitting next to Pierre de Villiers most of the time and that I had seen them talk to each other. I looked at Pierre but could not catch his eye. He was watching the witness intently.
The registrar stood up and faced the witness box. ‘What is your full name, please?’
‘Gerhardus Petrus Nienaber.’
There is something odd here, I thought, as the witness took the oath. He spoke in a deep baritone.
When Murray led his evidence he addressed him as Professor Nienaber. There was an easy familiarity between them that suggested a prior relationship.
We listened to his evidence with a sense of foreboding. James Murray would not call a witness unless the witness was going to make the prosecution case better. But Wierda and I were not entirely unprepared. During many hours of preparation we had taken turns to play devil’s advocate, asking ‘what-if’ questions of ourselves. ‘If we were prosecuting this case,’ I had asked Wierda, ‘how would we respond to the expert evidence of Doctor Shapiro and Marianne Schlebusch?’
We had agreed on the answer. If we were in Murray’s shoes we would call a State psychiatrist or a lecturer in psychology in rebuttal and we would attack the defence expert’s opinions at their weakest link, the facts on which the opinions might be based. The litigation textbooks made it plain: an expert opinion is only as good as the facts upon which it is based.
Since no State psychiatrist had examined Labuschagne before the trial – it could only be done with our consent or if we had raised insanity as a defence – we knew that Professor Nienaber’s evidence would have to be restricted to general observations and such conclusions as could be drawn from the evidence given in court.
Nienaber spoke with the confidence of a man of superior academic qualifications in familiar surroundings. Murray addressed him with deference throughout. There was an instant rapport between Professor Nienaber and Judge van Zyl. Pretoria was not a very large city
and the power of the executive government seated there was held in relatively few, albeit very powerful, hands. Murray was Deputy Attorney-General and his witness was Professor and Head of the Department of Psychiatry at the medical school of the University of Pretoria. I wondered if they were both members of the ultra-secret Afrikaner Broederbond, the organisation that held ultimate sway in all political matters. The thought crossed my mind that the Judge might be a member too, but after thinking about it for a while I dismissed the idea. No self-respecting judge would compromise his independence and objectivity – perceived as well as real – in such an obvious, even crass, fashion. Maybe, but maybe not, a sceptical little voice whispered in my paranoid ear. I watched Judge van Zyl very closely after that, but he treated the witness exactly as he had all the others, with courtesy and with experienced even-handedness. The Judge gave nothing away. No witness would know whether the Judge believed him or not; not before the judgment was delivered anyway.
The witness, however, worried me a little. Why had he winked at me? That was a bit cheeky of him. What did he know that I didn’t?
When Murray neared the end of the examination-in-chief I whispered in Wierda’s ear that he would have to cross-examine Professor Nienaber.
We listened to the rest of the evidence. The attack on our case was based on a few factors, each explained in laborious detail and with reference to scientific papers, most of them written by the good professor or one of his many protégés, but it all boiled down to this: First, he asked rhetorically, why, if the work was so stressful, other escorts did not break down and go out and murder people. I noticed that he had used the word murder, not kill. Second, he said that we had only the defendant’s word for what had happened at the reservoir. Road rage was a common phenomenon worldwide and the facts fit that scenario perfectly. Third, he cautioned that the defendant’s claimed amnesia could be feigned, but even if it was real it probably was retrograde amnesia. The mind wiped out unpleasant memories after the event, he explained. And the minds of highly principled people were more efficient in wiping out such memories. So that was not necessarily a case of such a total breakdown of the mind that the defendant had acted in a state of automatism. Last, he said, the accuracy with which the defendant had fired the thirteen shots gave the lie to the defence experts’ opinions; no man could shoot with that degree of accuracy while acting as an automaton.
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