Читать книгу A Just Defiance - Peter Harris - Страница 22

Last night was a bit of a scene at Sam’s Cafe with my partners after our monthly partners’ meeting. Always a torrid and difficult meeting with the colliding egos and stresses of running a political practice on very little money. Drinking too much at the dinner, swapping stories of State stupidity as we talk ourselves up to heights of brilliance and legal cunning.

On the highway to Pretoria, the sun knifing in through the window combines with my dehydration to launch me into a bout of mild depression, induced by a vitamin B deficiency. Generally, I never smoke during the day as it makes me feel tired, but I light a cigarette. It’s a habit, when I feel bad, to do things that make me feel worse. Pitiful really.

I’m thinking of my approach to the accused and what they will say in relation to the charges. Deciding on the nature of the defence is a difficult phase in any trial preparation. It has to be handled carefully. The accused have to be guided by the correct considerations, both legal and political, in order to construct a responsible defence. I know that conventional lawyers would decry taking political issues into account and would only consider the legal questions. But in a case where both sides are driven by power, punishment and political advantage, such concerns can never be ruled out. This is a political trial. So these matters have to be considered and the accused must come to a decision about their defence by themselves.

If I suggest they adopt the defence that would result in the lightest sentence, I would be naive and they would be outraged. I would be dismissed as their defence attorney. Similarly, I would be doing them a disservice if I advised a purely political stance towards the court and its proceedings. In all likelihood, this would result in an excessively stiff sentence. The ideal defence in a political trial has to encompass complex and sensitive considerations in order to meet both the legal and political needs of the accused. The wishes of their families must also be considered.

In some political trials, the accused have jettisoned their cause in favour of the lightest possible sentence. They admit culpability and state that they were brainwashed by the ANC. There are numerous variations on this theme of distancing the accused from the ANC. Usually, this tactic ends up a mess. Branding your erstwhile comrades sick manipulators places you forever on the political perimeter.

This is not an easy game to play, particularly for novices, and most accused are first timers. The security police are experienced and often exhibit masterful insights into the character of the accused, exploiting divisions within groups as well as personal weaknesses and insecurities. In the end, hungry, hurt and scared, most people will do anything to please their captors. If they don’t like what you’ve written, they’ll tell you to write it again. And again and again until it fits the bill, their bill. And then, back in your cell, the guilt seeps through you. You’re humiliated, sore and alone, trying to justify what you’ve done. Hoping that your comrades will understand, which, of course, they won’t. And that’s how it starts.

This is serious stuff. The one component common to most political trials is the challenging of the accused’s confession. In legal jargon, this is known as ‘the trial within a trial’. In many MK trials, most of the evidence comes from the confession of the accused, usually extracted under torture and duress. The admissibility of the confession then becomes contentious. And so battle is joined.

I approach the prison, feel the eyes of the warders looking at me through the thick glass. I bark my name into the intercom, the sun on my head shooting pain across my thin skull. The immaculate Warder van Rensburg, reassuringly exhibiting the same distance and contempt towards me, ushers me in. The clanging of the massive hydraulic doors jars my delicate senses, makes me wish that I had shown more restraint the previous night.

We go in through one door after the other until the door of the doctor’s surgery closes. I stretch out gratefully on the bed. As I lie there I wonder why the beds in doctors’ surgeries are always uncomfortable. Maybe they don’t want the patients settling in. The frowning eyes of the warder appear at the peephole in the door and I can see that he is irritated by this lazy lawyer stretching out on the starched white sheets of the prison doctor’s bed. It’s just too much! Although it’s good to know that I am irritating him, I realise sadly that a few hours alone on this bed in this prison would be something that I would welcome, perhaps even pay for. Two hours of sleep would see me right. I close my eyes.

Unfortunately, this time my clients are brought in promptly. I greet them and we weigh ourselves. It is becoming a ritual and prison is about rituals. We go through the niceties as if we were meeting for coffee in a café, discussing the surroundings, their daily routine, the gym. I pass on good wishes from the families. There is no passing or keeping of written messages. A friend of mine was barred by the Law Society from visiting clients in prison after he was caught smuggling out a message on a piece of paper. Such a mistake would be pounced on and give Warder van Rensburg more pleasure than his Sunday braai.

To business. ‘This is serious now and I want you to listen closely.’

They pull their chairs closer and go silent, totally absorbed. I give them some options about the type of defence that can be mounted.

‘Each option has serious consequences and needs to be thought through carefully. Don’t make a decision now. Take your time, discuss it among yourselves and in a few days we can discuss it further and I can answer any questions you may have. I also want to take detailed statements from each of you and analyse them at length before advising you of what I think your best defence should be. I’m going to detail all of the options so that you get a precise picture of your legal position. I appreciate that some of them may not be acceptable to you, but you still need to know about them.’

I work through the particulars of each charge and relay the types of sentences that each offence would attract on conviction. They are silent.

I tackle the big issue. ‘What do you say about the murder charges? Have you confessed to them?’

Jabu is slow in replying. ‘Yes, we have confessed to the murders and the other charges. It was part of our mission.’

‘Yussus,’ I respond, having got much more than I expected. ‘Look, we will need to explore the facts and circumstances of each charge. But I must tell you, you can’t get more serious charges. If convicted, you face the death sentence.’

There, I have said it. The death sentence. I needed to do that, to get it onto the table, make them realise the utter gravity of their situation. I tell them that the death sentence is mandatory unless extenuating circumstances are found, explaining that those are factors associated with the case which diminish the moral, if not legal guilt of the accused. I give examples. They look at me steadily. They are not talking, waiting for me to finish, watching me. This is my test. What is this lawyer going to advise?

There is a long silence and then Ting Ting speaks. ‘We know what the penalties are for what we have done. We knew that before we even came back into the country. These are things that must be faced. How we handle it is very important to us. There can be no going back, we are soldiers.’

Strong stuff.

‘That’s fine,’ I say.

As we work through the different types of defence, I realise that they are not being charged with what they did in Bophuthatswana, with the murder of Brigadier Molope. Who would have thought that the ‘independent’ country would be helpful in such circumstances? Anyway, the security police don’t need the Bop charges, the South African ones are enough. Besides, too many accomplishments would turn these men into heroes.