Steeped in Blood (37 page)

‘If the law has made you a witness, remain a man of science. You have no victim to avenge or guilty or innocent person to ruin or save. You must bear testimony within the limits of science.’

– PAUL C. BROUARDEL,

nineteenth-century French medico-legalist
^*

Forensic science has no master but the truth. Failure to understand this often creates difficulty for the scientist, who endeavours to get as close to the truth as humanly possible using scientific methods.

Many people believe that evidence will favour the side for which the forensic expert is acting, yet this is not the case: the forensic scientist is a witness to truth itself. Irrespective of whether it is the plaintiff or the defendant, the prosecution or the accused, that has called you as a witness, your duty is to give fair and unbiased
evidence, and never to pervert or change your evidence or slant your findings. Forensic science is not about being a hired gun, either for political or for business interests (see
Chapters 2
and
24
). Occasionally, clients have to be warned that you will sink them with your evidence if they place you in a witness box. Many forensic experts fall into the trap of thinking that they are acting for one side or the other, but this is never the case: the role of the expert is to be completely impartial.

Impartiality was a constant battle in the apartheid years. The police laboratories were run along party political lines, and the justice system was no different. Judges were often handpicked by the Nationalist government, which successively deployed the party faithful to positions of judicial power to assist the government by toeing the party line. Certainly, there was a great deal of that in the Magistrates’ Courts – magistrates were selected by the government in order to produce judgments that suited the state. In the cases in which I was involved in those years, I experienced first hand the magistrates’ extreme reluctance to find the security forces responsible for any of the hideous crimes committed in the name of the government.

During my investigations I frequently found myself up against one particular magistrate who would never find against the police. He went out of his way to be gentle towards the state: he would ignore the most damning evidence, glossing over it in order to find that the police were not culpable. This happened in the cases of the Gugulethu Seven and Ashley Kriel, among many others (see
Chapters 8
and
10
). It was disheartening giving evidence in front of such judicial officers knowing that they would find a way to discredit you and ignore your evidence. Eventually, though, the truth came out with the revelations at the Truth and Reconciliation Commission.

After the long, hard-fought road to democracy, one would have hoped to see a very different picture today. Our history is littered
with fallen heroes and brave men and women who paved the way for freedom and equality for all. In the words of Robert F. Kennedy, ‘It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope.’

Tragically, however, I see some of the ways of the old South Africa starting to develop in our democratically elected government. Certain judges have been selected as a matter of cadre deployment, and some judges are clearly unfit for the bench.

A few years ago an advocate told me about an incident involving the Judge President of the Cape, Judge John Hlophe. Judge Hlophe appointed an acting judge to hear a high-profile murder trial, and the judge found the accused guilty. As Joshua Greeff, the attorney acting for the defence, left the court, he was besieged by the press, who wanted his opinion on the judgment. He criticised it, saying that he thought the judge was wrong and that he was going to advise his client to appeal.

Greeff was quite entitled to say this: he had the right to respectfully disagree with the judge and he could tell the press that he was intending to inform his client to appeal. His response was in no way contemptuous.

When the accused appeared in court for sentencing some months later, the judge sentenced the accused to the maximum sentence possible. The counsel for the matter, Dirk Uys, stood up and asked for leave to appeal. The judge was not interested, and swept out of court in a judicial huff, leaving Uys standing there open-mouthed.

Uys and the instructing attorney, Joshua Greeff, were busy packing up their books when the judge’s registrar arrived and said, ‘The Judge President wants to see you now.’

Greeff and Uys went up to the judge’s chambers, where they were met by Judge Hlophe, who proceeded to tear a stinging strip off Greeff for his remarks, allegedly ending his commentary by
saying to Greeff, ‘You’re nothing but a piece of white shit who should go back to the Netherlands.’

I was outraged that a member of the judiciary, especially one who occupied such a prestigious office, could express these improper sentiments in such vulgar language. I phoned Joshua Greeff, who was reluctant to confirm the event, but when I spoke to Dirk Uys, he verified the whole squalid business. I then phoned Martin Welz, who published the article in
Noseweek
magazine. The incident became a cause célèbre in Cape Town, and it was a severe embarrassment to Judge Hlophe.

Judge Hlophe went on to deny the affair on national television, but later allowed the appointment of Uys as acting judge in his division. One is left with the uncomfortable conclusion that either Hlophe was happy to have a perjurer who had defamed him on the bench, or this was a hatchet-burying job. What was particularly telling was the fact that, in the midst of the denials by Judge Hlophe, he never called the prosecutor, Chris van der Vyver, or the judge, Judge Tandaswa Ndita AJ in the matter, both of whom had been present during the encounter, to confirm his avowal that he had not said the unfortunate words to Greeff.

Judge Hlophe didn’t stop there: his later remarks about Judge Wilfred Thring are a particular indictment on him. While discussing a case with one of the parties and his counsel at a cricket match, he allegedly told them that he was going to refer the matter to Judge Thring so that he could ‘fuck it up’ and it could be remedied on appeal. Unfortunately for Judge Hlophe, this information leaked out and I made certain that it was publicised. The comment was irresponsible, improper and an insult to a man who deserved no insult whatsoever. Judge Thring, in my experience, is a scholarly gentleman of great temperance, and a man worthy of respect. Because of his judicial position, Judge Thring was unable to respond publicly to the nasty saga.

When Judge Thring failed to get permission from then Chief
Justice Chaskalson (and later, his successor, Chief Justice Langa) to publish his response to an earlier, widely publicised attack of racism that had been launched against him by Judge Hlophe, he took his entire dossier and deposited it with the national archives in Roeland Street. Inexplicably, the curator placed a twenty-year embargo on it and catalogued it as confidential material, which it was not.

When I heard this, I was outraged. Judge Thring had obviously intended his side of the story to be heard, but he was being muzzled by the state machine. With copies of Judge Thring’s papers in hand, I called a press meeting, where I made them available to the press. I believe that this is what democracy is about – openness and transparency. It is not about allowing an improper statement and unacceptable behaviour by one judge, directed against another judge, to be kept out of the public eye. We need to know who is holding our future in their hands when they are making a judgment from the bench.

In my view, Judge Hlophe has been a most unsuitable candidate; a great pity, because he started off with such high hopes from all. He was regarded as a man of great promise by the other judges, but it seems that the power went to his head.

Judge Hlophe went on to accuse, unjustly, other senior advocates at the Cape Bar, as well as a former judge president, of racism. The charge of racism against Henri Viljoen SC arose from a meeting in Judge Hlophe’s chambers. Requested by Viljoen, the conference had been called to discuss a case due to come before the court. Judge Hlophe had invited Deputy Judge President Jeanette Traverso to be present. In a letter to the Minister of Justice in 2004, Judge Hlophe complained that Viljoen had greeted Judge Hlophe and then addressed Judge Traverso in Afrikaans. Judge Hlophe does not speak Afrikaans, and was allegedly ignored from that point on.

Details of when this incident took place and who exactly was involved were requested by the Cape Bar Council, but the facts were never supplied. Viljoen categorically denied that the incident
ever occurred and pointed out that, in his experience of the judge president, the latter would never have sat through the humiliating experience described by him.

The upshot of all of this was a paper titled ‘Report on Racism in the Cape Provincial Division’, which Judge Hlophe prepared and sent to the Minister of Justice instead of to the Chief Justice, outlining his complaints about racism on the bench and at the Cape Bar. Depsite the fact that the allegations were refuted, Judge Hlophe did not retract the report or publicly apologise to those he falsely accused of racism. It all proved to be just a damp squib, and the affair’s lasting legacy is a Zapiro cartoon, which is included as
Appendix K
.

As I hope to have demonstrated in this book, the purpose of a forensic investigation is to get to the truth. The facts should then be presented in an impartial court of law in order for the correct legal findings to be made. Courts are about justice, and should never be tainted by money or politics. As a forensic scientist who has been involved in the criminal and political life of South Africa for many years, I have a role to play in this regard, and I will speak out whenever I feel it necessary.

In the old South Africa, the police force and judicial system were rampantly politicised. Our police forensic laboratories also failed the test. As discussed in
Chapter 9
, General Lothar Neethling established a fine laboratory for the police, yet his attitude and injunctions were allowed to contaminate the laboratory and cast a shadow over the work of even the better forensic scientists working there.

I fear that we may be moving in that direction again. This thought is frightening, and it is painfully ironic, after all we have been through in our country, and after all I have seen in my independent forensic work over the years. Yet the wheel seems to be making a complete revolution. Those who do not know history are condemned to repeat it.

___________

*
As reproduced in
Forensic Radiology
by B.G. Brogdon. This quote also appears in
The American Journal of Forensic Science and Pathology
20 (1) 1999, where it is attributed to Paul H. Broussard, Chair of Forensic Medicine, Sorbonne, 1897.

THE BANNED STRIKES UP HIS OWN TUNE BY DAVID KLATZOW

Your article about the secret deals banks do to keep attorneys on a tight lead is redolent of my experience with those other pillars of virtue, insurance companies.

I have always accepted briefs according to the good old ‘taxi rank’ principle of ‘first come first served’. The name of my operation was Independent Forensic Consultants – and that is the way I wanted to be.

Shortly after I handled a case against one of the insurance giants, an attorney at Deneys Reitz, John Neaves, took it upon himself to give me some advice: ‘Don’t take work from the insured, only from the insurers.’

Why so? ‘The insurers won’t like it,’ he confided.

He was right. It seems they don’t want independent consultants, they want mercenaries. I reckoned that if that was what they wanted, they should go to Mike Hoare.

I continued to take work from clients in dispute with their insurers, and, sure enough, my work from the insurers dropped off, until only SA Eagle was left.