And Justice For All. Stephen Ellmann
at an earlier bail hearing during which allegations were made that the people seeking bail had been assaulted.20 Arthur asks:
What did you think when you heard about that allegation? – Weyers: I didn’t do anything.21
That is what I find so difficult to understand. It is such a serious charge, why didn’t you do anything to investigate? – Weyers: If they had any complaints of assault they would have reported this at [the police station at] Marshall Square.
Arthur then asks, five more times, why Weyers chose to wait for a complaint rather than to initiate an investigation, but Weyers is unshaken. Finally Arthur says:
I still find it difficult but I leave your answer because there is a possible explanation, and perhaps I should ask you to deal with it, and that is that you knew there had been assaults? – Weyers: I deny this.22
Similarly, though in a less obviously fraught context, when Detective Constable Els claims to have spent several days questioning arrested suspects but to have reported absolutely nothing about his results to his colleagues, Arthur says: ‘It seems such an extraordinary procedure to me, Mr Els, surely you must have at least made some report to somebody about what you were doing during this period?’23 But Els responds, ‘I did not, Your Honour.’
One more example may be the most egregious. Arthur, reacting to the supposed success in interrogation of Lieutenant Theunis Jacobus Swanepoel, who acknowledged having been the target of multiple assault complaints in the past, puts a sceptical question to him: ‘Alright, now you have remarkable success with prisoners don’t you Lt Swanepoel?’ Swanepoel parries, ‘I don’t know what you mean by “remarkable”.’ Arthur makes his point more explicit: ‘Everybody seems to take one look at you and start giving you information?’ Swanepoel treats the question as the set-up line for a joke, and answers: ‘I don’t know, perhaps they like my face!’24
This was relatively early in Swanepoel’s notorious career. A few years later, in a trial of 37 Namibians charged with terrorism for their resistance to South Africa’s rule over what was then called South West Africa, the attorney for the accused, Joel Carlson, described Swanepoel’s testimony as demonstrating the ‘defence team’s impotence in the face of police power … With tremendous arrogance, he dispensed with the formalities, swore himself in, dismissed the role of the judge’s registrar, and proceeded with his evidence. He made it clear that he was in control of the proceedings.’ Then Swanepoel did something reminiscent of his joking response to Arthur’s cross-examination, but more flagrant:
After beginning his testimony, he suddenly turned to the judge and asked to be permitted to have a private word with the prosecutor. This was highly irregular. ‘It is a matter of state security,’ said he half-smiling. The judge consented helplessly although he clearly resented this man who toyed with the court’s authority. Swanepoel left the witness box, had a word in the prosecutor’s ear, both men smiled, and then he returned to the witness box.25
Perhaps his sense of omnipotence had grown over the intervening years.
One other striking moment from Swanepoel’s career took place even before the Letsoko case was over. Arthur cross-examined Swanepoel on 20 June 1963. On 11 August 1963 Swanepoel was brought in to try to force the truth out of AnnMarie Wolpe, whom the police (correctly) suspected of having assisted her husband Harold and others to escape from jail. The police had just raided the farmhouse at Rivonia, and were in the process of tearing apart much of the ANC’s underground network. Wolpe and three others, however, succeeded in bribing a jail guard and escaping. That left AnnMarie Wolpe exposed to arrest, which followed quickly, as did interrogation. Glenn Frankel describes Swanepoel’s role:
[AnnMarie] could see the thick swelling of veins in his forehead and saliva forming in the corners of his mouth. He fired off jagged bursts of obscenities. Then he took the arms of her chair and shook it as he talked. His partner, who looked like a junior version of him, ringed his hands around AnnMarie’s throat and left them poised within inches of her skin. But they did not touch her. The old rules – no violence to white women – still applied.
Then as suddenly as they had arrived, they stormed out of the room. Swanepoel had one last parting shot for her. ‘I’m going to get them. I’m going to fucking kill them.’26
In Letsoko, some disturbing things took place even in the courtroom. At one point family members were barred from using empty seating, until Arthur brought the situation to the attention of the judge in open court. Near the very end of the trial, Michael Maimane, the second accused – a man whose emotional difficulties were such that his counsel had successfully moved for him to be evaluated at a mental health facility – is described by the transcript as ‘refus[ing] to have the handcuffs removed from his hands’ when he arrived in court. After an adjournment to permit Arthur to consult with his client, Arthur reported back that ‘apparently, my lord, the difficulty was a physical one and the handcuffs couldn’t be removed but during the period a locksmith was found who was able to undo the lock – the handcuffs have now been removed and the accused is in Court. They were very tightly fixed on his arm and I think that was probably the difficulty.’27
A remarkable thing happens, however, as witness follows witness. Together with Joel Joffe, Arthur seems to have approached his problem with the basic idea that if he forced the police to tell him the details of what they had done with the witnesses, they would inevitably wind up in embarrassment. (‘What a tangled web we weave …’) The theory was a good one, though it had a flaw which the trial court exploited – it was possible, at least in principle, that the police witnesses’ confusion was not a result of evasion. The police, as the trial court emphasises, were new to sabotage investigations, and their inexperience could have led to disorganisation.28 The Appellate Division evidently took a less sympathetic view, but the trial judge was prepared to forgive a lot without inferring any improper motive on the part of the police witnesses. Whatever the judge’s response, however, it appears that the police, for their part, began to realise that any detail of their activity they let slip might lead them into trouble. And so officers under cross-examination began denying so much activity that their denials themselves became incredible. Arthur told Lieutenant Van Wyk that a subordinate officer, Sergeant Ferreira, ‘said that he did not know whether the persons that he had questioned had been questioned by others’. Van Wyk replied that ‘This is ridiculous.’29 Detective Constable Els spends several days in the midst of a high-pressure investigation interrogating suspects but reporting nothing of his activities to his colleagues. Arthur asks:
You just carried on independently all by yourself without getting any information of value and without reporting to anybody? – Els: This is correct.
But then the persons whom you questioned could quite easily be questioned again the next day by somebody else? – Els: This could have been so, Your Honour.
And you could be questioning people who had been questioned by other persons? – Els: This is completely correct.30
Another police witness, Constable Trijtsmann, denied that he had taken statements from the suspects. Then it turned out, unmistakably – his name was on the papers – that he had taken at least one. This led Arthur to ask why he had been so reluctant to acknowledge having done so. Trijtsmann answers that this was his first time working on such a case, and taking statements in a case like this is very complicated. A few pages later, Arthur asks why Trijtsmann was taking statements in the first place. Trijtsmann says this wasn’t part of his ordinary work, but also says it wasn’t ‘by accident’. Perhaps he was asked to help? He can’t recall. Arthur continues: ‘Will you take a statement without being asked to take a statement?’ Trijtsmann replied: ‘Well, for my own interest I will, Your Honour.’31 Confusion reigns.
Still another, Constable Vermeulen, was said by the first accused, Napoleon Letsoko, to have escorted him to the magistrate, before whom Letsoko was to make a statement. Statements made before a magistrate had more legal weight than those attested to only by interrogating officers, but the process posed a challenge to the security police, because the witness, while