Wierda and I had decided long before the trial started that we would keep our argument simple; in fact, that had been the cornerstone of our trial tactics. Murray had to keep his argument simple because he had a good case; we had to keep ours simple because we had a bad one.
We had two main difficulties: we had to make a difficult case look easy, and we had to have an answer for each of the prosecution’s most telling points. An argument that does not answer the opponent’s best points is worthless because an argument is never judged on its own; it is always measured against the opposing argument. It may be different in mathematics, but that’s how it is in law.
So we started by dealing with the main points. The evidence of Dr Shapiro and Miss Schlebusch proved, I argued, that the degree of accuracy could be achieved by a person acting in a state of sane automatism where the action concerned is in the nature of a conditioned response. And we had good evidence from the school principal, backed up by the school’s yearbook, that the defendant had been a crack shot, even at competition level. We also know that he had received combat training with the very same pistol he had in his lap during the drive down the Old Johannesburg Road.
Secondly, I said that the argument about the positions of the shell-casings could not withstand any serious scrutiny. There was no scientific support for the prosecutors’ contention.
Judge van Zyl interrupted me. ‘But the ballistics report is undisputed.’
That was true, but I had to point out that it reflected where the shell-casings were found after the event, not how they had got there.
‘You’ve lost me,’ said the Judge.
I offered to demonstrate. I called for the scene plan and asked Sanet Niemand for the shell-casings. I rattled a handful of them like dice in my hand, just as James Murray had done. I waited until all eyes in the room were trained on my hand; then I casually leaned over my lectern, held my arm out at shoulder level and opened my fist. The shell-casings dropped onto the threadbare carpet and bounced away in different directions.
I watched the Judge and Assessors closely. They were too experienced to show what they thought, but the members of the media could not hide their excitement. It was the usher’s job to recover the shell-casings, but he found all seven of them, some up to three metres apart.
So much for the theory proposed by the prosecution, I said, wiping the sweat from my brow. I stole a glance at Labuschagne; he was taking no interest in the argument. I took a good swig from the water glass before I was ready to continue.
We still had to deal with our best points.
I started with a question, a dangerous gambit, but very effective when it works. The technique is to answer your question quickly before someone can come up with a clever answer.
What explanation did the prosecution theory offer for Labuschagne’s actions at the reservoir? It didn’t make sense when you took into account his exemplary past. The prosecutors contended that they didn’t have to prove a motive, and they were correct in law, but what explanation could there be that was supported by real evidence before the Court? It didn’t make sense, and we were looking for an answer that made sense, I argued. The law did not require a motive, but logic did.
I didn’t point out to the Judge that I had just read the cases of thirty-two murderers and that their actions didn’t make any sense to me either.
Conversely, I said, the defence’s theory was backed up by the evidence of the defendant and the opinions of eminent experts; even the prosecution’s rebuttal witness had supported the defence’s case to some extent.
I felt strangely energetic during the argument, as if I could go on forever. But we had to keep it simple.
An acquittal might be unpopular and might even be uncomfortable to lawyers; after all, we liked to think that what we practised in a courtroom was science, not voodoo, and that we could achieve results that, when they are measured objectively, were accurate and just, I said to the Judge. It was the Court’s job to separate the science of the law and of medicine from populist beliefs and emotions. Where would Tsafendas have been, I asked, if the Court had acceded to the public demand for his blood? Decide the case on the evidence, I challenged them; the defence has no fear of a verdict derived from the evidence before the Court.
During the argument the Judge peppered me with questions that were getting progressively more difficult to answer. Who carried the burden of proof when you had a special defence like this? Wasn’t it for the defence to prove the defence on a balance of probability? What if we didn’t believe him? What if we found his evidence unreliable in important respects?
I watched the Assessors carefully to gauge their reactions to my submissions, but they gave nothing away.
I decided to try another approach.
‘M’Lord and gentlemen Assessors,’ I began, ‘there is a question that remains unanswered. How did this young man go from a good Christian home and a good school in your town to the dock in your court?’
The Judge avoided my eye and would not, perhaps could not, answer my question. His silence emboldened me.
‘What does it take,’ I asked, ‘to pull a man up by the rope and to drop him down and to hear his neck break? How does it feel when you have to pull him up a second time, to ensure that he dies quickly? What goes through your mind when you stand there struggling with the weight of the squirming prisoner, someone to whom you have read Bible texts, waiting for the Warrant Officer to count to three so that you can drop him to his death?’
I took a deep breath and spoke very softly. ‘What compelled a young man from a Christian home in your city to participate in something as macabre as that? How did it get to that for Leon Labuschagne?’
I didn’t wait for answers. I found the document I was looking for and asked them to look at Exhibit G. At first neither the Judge nor his Assessors could find it, but the registrar recovered their copies from under several files and papers on the bench.
‘What’s the purpose of this?’ asked Judge van Zyl. His tone was unsympathetic and sceptical.
‘I’ll elaborate in a minute, if it pleases M’Lord.’ The legal niceties required him to give me a chance to present my argument. To his credit he allowed me to speak without further interruptions but I saw him put the exhibit face down on the bench before he sat back and folded his arms.
As a counterpoint I held my own copy of Exhibit G higher and kept it there, right in front of my face and between me and the bench, the top of the sheet a centimetre or two below my line of vision.
‘This extract from the Death Sentence Register might look to us like just another list of names and dates and numbers, but to Leon Labuschagne the names on this list were real people.’
I turned the exhibit around so that the writing faced the bench. ‘The names on this list were people who entered the defendant’s life. Their lives became intimately and irreversibly linked to his.’
Judge van Zyl must have misunderstood the direction I was taking and said, ‘This is not the time or the place for a debate on the death penalty.’
I agreed with him and said so, disavowing any intention to make submissions on that issue.
‘The list is incomplete,’ I said abruptly. ‘There is a name short.’
I turned the list over again. ‘Oh, we know what happened to the names on the list,’ I said. ‘But let me remind the Court in any case.’
I had to be quick, because I didn’t know how much longer the Judge’s patience would last. I followed James Murray’s example. The Judge could hardly let him list his best points but deny me the same opportunity.
They came in and were processed by admin – Labuschagne was part of their initiation
They were placed in cells – he was put at the door
He woke them up and saw that they were fed
They were taken to the showers – he was put at the door
They were taken out to the exercise yard – he stood in the sun watching them
They received visits from their family and la
wyers – he stood and watched and listened
They moved from place to place – he had to search them, and touched them
He read their letters
He did Bible study with the ones who could not read, these men whose names are on the list
When I stopped I realised that I had raised the list above my head. I put it down on the lectern. It had served its purpose. I had their attention.
Wierda passed me the glass. I drank slowly, trying to regain my strength.
‘Then, when he had got to know them really well, he had to walk with the Sheriff and tell them to Pak!
‘And after that, he had to take some out to their families in the parking area, out into the sunlight, while the rest he had to take into the Pot, and from there to the chapel, and to the gallows, and back to the chapel, but this time in coffins marked only with a number.’
I waited for effect. None of the men on the bench was looking at me. Even Wierda had become motionless, his incessant tap tap tapping silenced for once.
‘To us, to you and me,’ I said, including the press and the prosecutors in the sweep of my arm, ‘to us the names on this list mean nothing. They are like sheep, anonymous in the flock, devoid of identity. To Leon Labuschagne they were real people.’
‘And some we made him kill with his own hands,’ I concluded.
I took the list and read the names of the thirty-two men who had been hanged in those last two weeks. I read them out fast, trying to do it in one breath, in the order they appeared on the list:
Moatche Scheepers Klassop Marotholi Kodisang Busakwe Mbambani Mpipi Mohapi Delport Wessels Harris Meiring Michaels Japhta Swartbooi Botha Morgan Gcabashe Gcaba Mbele Rabutla Phaswa Mokwena Mjuza Hansen Njele Mkumbeni Prins Leve Smit Maarman
I was out of breath. The Assessor on the right stirred and spoke quietly to Judge van Zyl. I took the opportunity to take another sip of water. My mouth was dry and my voice had become hoarse.
The Judge turned to me and asked the Assessor’s question. ‘You said there was a name missing from the list?’
‘Yes,’ I said. ‘Leon Albert Labuschagne.’
It took them a moment to realise I was referring to the defendant.
The Judge exploded. ‘That’s ridiculous.’
‘Ridiculous, M’Lord?’ I responded, my voice rising. ‘Ridiculous, when he spent his days locked in with them, when he was made to share every living moment of their last days with them, and then made to share even their dying with them?
‘His name should be on the list because we have sentenced him to death as surely as we did the others. They were sent there after a trial and for capital offences. He was sent there for a minor disciplinary infraction!’
‘That is a ridiculous submission,’ Judge van Zyl said a second time. He was angry, but so was I.
‘No,’ I said, ‘it is not ridiculous. What is ridiculous is the denial of what we have done to this man.’ I pointed at Labuschagne. He, for once, was watching me.
‘I need M’Lord and the gentlemen Assessors to pick up Exhibit G and to look at it. I need M’Lord to give it serious attention,’ I added when the Judge didn’t move.
He picked it up, reluctance in every gesture, but I was pleased to see that his Assessors had obeyed.
‘Now let’s give this document the attention it deserves,’ I suggested. I counted the number of names on the schedule. ‘There are fifty-one names on the list. Let me remind the Court what happened.’
‘You don’t need to remind me,’ said Judge van Zyl. ‘I can see from the list what happened to them.’
‘Yes, I know we all know what happened to them, but it seems to me that we have forgotten what happened to Leon Albert Labuschagne.’ I dragged the names out, Leon – Albert – Labuschagne.
The Judge was still antagonistic and I decided to make my submission to his Assessors. ‘M’Lord, gentlemen, imagine the scene every time they called these men out. The defendant would stand next to them at the admin office, and he would stand there with them when they heard their fate. You go up, you go out. Your appeal succeeded, you go up.
‘We made him stand next to these names, these men on the list, as the selection process was completed. We made him stand and watch as we selected the men for hanging from his flock.’
The Judge had given up trying to stop my rant.
‘Tshuma, you go out. Moatche, you go into the Pot. Burger, you go with Tshuma. Scheepers, you go into the Pot. And you too, Wessels. And you, Labuschagne, you take Moatche to the Pot and come back quickly so that you can take Scheepers and Wessels to C Section. But let’s take their measurements first.’
I didn’t realise that I had sat down until I heard James Murray speak in reply. I didn’t hear what he had to say either, I was too tired. Exhaustion overcame me.
In the rush of my heartbeat in my ears I thought I was hearing African voices, rising and falling in a plaintive, insistent cry for salvation.
When Murray had completed his reply to our argument, the Judge conferred very briefly with each of his Assessors and announced that the Court’s judgment would be handed down at ten a.m. the next day.
I stayed in my seat, too exhausted to leave. I looked across and saw James Murray also sitting down while Sanet Niemand was packing up around him. James looked as tired as I was; he was spent.
The case was now a spider web of strands, each with its own tension and direction, but all apparently connected to the same centre. But where that centre was and how the spider controlled its domain was unclear. They say that the truth is revealed by the litigation process, but I was no longer able to see it. Was the spider at the centre of the web perhaps the truth that all lawyers fear, the objective truth, what really happened, and not the truth as revealed by the evidence?
I felt a hand on my shoulder. It was Antoinette Labuschagne. ‘Thank you,’ she said. She had tears in her eyes.
I was too tired to cry with her.
That evening the Wierdas entertained Dr Shapiro to dinner. It was a social engagement I couldn’t avoid. He had flown halfway across the globe and had sacrificed a week of his time to give us the benefit of his expert insights and experience. We owed him a great debt of gratitude and entertaining him when we were tired was a small price to pay. Marianne Schlebusch had a prior engagement at her university and her seat was empty.
Wierda and his wife were impeccable hosts and served a variety of traditional dishes matched to local wines. The red was a Rust en Vrede. Rest and Peace. I had too much of the wine.
The talk around the table turned to the history of Pretoria. The American said that he wanted to visit the Voortrekker Monument before he caught his flight back to Los Angeles; he had read about the monument and its place in the Afrikaner psyche in James Michener’s The Covenant.
‘I would like to pay it a visit,’ he said. ‘I’ve always wondered what those Afrikaners are really like.’
‘Oh,’ said Wierda, ‘I think you might bump into one but never know.’ There was just the faintest of smiles on his lips. His wife looked down at the tablecloth. I drank more of their wine.
Dr Shapiro wanted to know about the men who had been hanged between 26 November and 10 December 1987. He and Wierda revisited them all, looking for common patterns and explanations. Wierda, on the other hand, wanted to know more about Los Angeles and the death penalty debate in the States. Would those men have been sentenced to death in California? Wierda asked finally. You bet, said Dr Shapiro, but they would have died of old age before their appeals had been exhausted.
I was poor company at dinner. I tried to keep up with the conversation, but I found that I had lost interest; perhaps I was just too tired to take part in the debate. I had depleted my allocation of physical and emotional energy.
In the midst of the debate I heard Dr Shapiro say, ‘One hundred and sixty-four in twelve months, and of those, twenty-one in three days. That must be a record.’
Wierda became defensive. ‘What’s wrong with that?’ He argued from be
hind the rim of his glass.
‘Look,’ said Wierda, ‘you just don’t understand. I know you are against the death penalty, but there is no way that we can function without it here. Even the African population want it, not only here but in every other African country.’
‘But that’s my point,’ said the American. ‘That is an outdated and primitive attitude.’
Wierda was speechless for a while. I saw his face turn white. When he spoke again there was a hiss in his tone.
‘You think of grand theories and he,’ Wierda pointed at me, ‘he makes lists of the prisoners we hanged and he studies the names in the execution registers, but who makes lists of the victims of these men? Eh? And who keeps a register of the victims?’
Dr Shapiro appeared startled at Wierda’s vehemence. I decided to keep out of their argument.
‘Come on,’ said Wierda, ‘let’s look at the facts of a few cases and you can then tell me whether the victim was treated any better than the prisoner we hanged.’
Wierda didn’t forget his manners and refilled our glasses. ‘Take Moatche. He and his accomplices chased, then caught and stabbed their victim, many times. Do we remember that the poor man running for his life, struggling in vain as the knives cut into him, was William Matatule, an ordinary workaday man on his way home? We don’t even know if he had a family, a wife and children. The case records don’t even record that most basic information.’
Wierda’s voice was shrill. ‘My question is this: who remembers his suffering? Who holds a candle for Mr Matatule? Who organises a protest or writes a book about the victims?’
He answered his own question. ‘No one. We don’t care for the victims.’
When we didn’t respond, Wierda went further, ‘Do you want to talk about the suffering of Ginny Goitseone, spending an hour in the boot of the car as the killers drove from one place to the next in the middle of the night? Does anyone think of her despair, feeling the heat as the car burned, slowly suffocating as the oxygen ran out? Or any one of those women in the Cape being raped and strangled or having their heads bashed in with a stone? What about Mrs Webber, throttled, stabbed and beaten? And what about Mr Jeffreys, drowning in his own blood in the arms of his wife and son?’
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