Biko's strange inquest
David Napley
When it became known that I had been invited by the Association of Law Societies. of South Africa to attend the Biko inquest as an independent observer, some of my friends strongly urged me to take great care.
was going, they said, to a police state; my hotel accommodation would be 'bugged', and freedom of speech was limited to freedom to speak well of the Government. To disregard these warnings would mean that I might find myself in detention or, at best, expelled.
The inquest had already begun when I arrived, Cblonel Goosen, the head of the Port Elizabeth security police, was under eross-examination by Sydney Kentridge and, at the hands of this exceptionally able advocate, he was not showing at all well. I listened, with an ever increasing sense of horror, as he relentlessly cxtraCted from the witness the full measure of the suffering and degradation of the deceased man. Left naked, lying on a cell mat, with handcuffs and one foot manacled; detained for twenty days without questioning; denied outdoor exercise; left in urine-soaked trousers, on a urine-soaked mat and under a blanket in similar condition. Naïve as it may appear, the thought occurred to me that this was hardly the conduct expected from an officer and a gentleman. But it was important to remember what my friends had said. This was a police state and the witness was a member of a specially constituted paramilitary force, Then Mr. Kentridge asked 'How long Colonel Goosen have you been a detective?' to which he replied, 'Thirty years'; and I realised that by my lights he was not really a colonel at all; he was a police officer.
At the luncheon break 1 therefore made inquiries and discovered that the security police were in no sense a para-military corps. It was only a branch of the South African police, as our Special Branch or the Fraud Squad is only a department of a police force. Moreover, the military titles were historical in origin, dating back to the days, it was said, of British rule, and the South Africans would not wish to see them changed. May it not be that such military titles have psychological effects adverse to the interests of South Africa? May they not create a wholly wrong image in the minds of countless uninformed people, likening them to some others we would all like to forget, and may it not play some part in inducing in the minds of the security police that they are a special corps, above the law, or in the colonel's own words 'they act at their discretion not subject to any statute.'? Would they not be better given police ranks which more accurately define their station?
As the days passed I began to realise that Sotith Africa is the land of the paradox. I knew very little about the country when I arrived there, and know little more about it after a stay of only three weeks. I can, however, only speak as I found it, and while the people are subject to a number of Draco • nian laws, I found open criticism of many aspects of government policy, both generally and in the press. Certainly no restrictions were placed upon me in any endeavour I made to obtain information. Indeed, how does one begin to reconcile the acceptance by the Government of conduct of the Security Police such as emerged within a system which facilitates an open and unrestricted inquest, with almost every word of the evidence and arguments being reported daily by the press? It is almost irreconcilable.
The Old Synagogue Building, in which the inquest was held, had been adapted and it might have been an old court building anywhere in the United Kingdom. I assumed, knowing that the proceedings had attracted world-wide interest, that the Chief Magistrate had undertaken to preside in order to bring to the proceedings the benefit of his presumably wide legal knowledge and experience in presiding over such inquiries. I began to have some doubts when I found myself disagreeing with his rulings on the admissibility of evidence.
Certainly, his exclusions of evidence were not at any time, from my observation, directed to frustrating a full inquiry. He showed throughout an eagerness to ensure the fullest and most fair examination of what he considered relevant evidence. Rather, I felt that he lacked that sensitivity which comes only to the trained legal mind in relation to the complexities of the law of evidence, My doubts increased when the expert medical evidence was being adduced. This was, of necessity, complex and technical. When Professor Gordon, one of the medical assessors appointed to assist the Magistrate and a pathologist of renown and ability, questioned the witnesses he invariably pinpointed — in clear, if virtually inaudible terms — the real issue. The Magistrate's questions, however, were usually prefaced by some such phrase as, 'Let me ask in laymen's language . 'A moment's experience with the forensic sciences shows that trying to interrogate doctors in laymen's language achieves nothing more than making the confusion worse confounded. And so it was, although the Magistrate's intervention showed a keen and inquiring mind.
Later I discovered that while in England and Wales such an inquest would be undertaken by a coroner, who must either be a lawyer or a doctor or both, in South Africa they are taken by magistrates, who are neither lawyers nor doctors. They are, in fact, civil servants, who after serving, in most cases, in the department of the Public Prosecutor, are appointed to the Bench. They are answerable to the Minister of Justice. Once again, while I saw not the slightest evidence to suggest that the Magistrate acted throughout otherwise than in an independent and fair manner, is it not paradoxical that a country, proud in the jus tifiably high reputation of their higher judiciary, should fail when appointing to the magisterial bench to have recourse to the great talents to be found in their legal profession?
An inquest is, by definition, an inquisition. That in turn is generally taken to mean that the person presiding himself seeks out and elicits the evidence. Such is the practice here: indeed, advocates may only ask such questions as the coroner may permit. There are those, of whom I am one, who consider that in this we are wrong, and that interested parties should be free to put relevant questions as of right. Similarly, in this country it is the coroner who decides whether or not he must or should hold an inquest. In South Africa, the Public Prosecutor must first decide whether he wishes to bring criminal charges in relation to the death, If, not, an inquest proceeds. The Magistrate may appoint someone to lead the evidence on his behalf. It is usually a Public Pro secutor, and at the Biko inquest was the Deputy Attorney-General. Interested par ties may be represented with the permission of the Magistrate. A comparable situation in this country would be found at a statutory commission of inquiry. Counsel would usu ally be appointed to represent the inquiry. It would be his function to elicit the facts in a dispassionate fashion, and test them on behalf of the inquiry, by cross examination. In the Biko inquest the Deputy AttorneyGeneral did not adversely cross-examine the police or the state-employed doctors at all, so far as I recall. Indeed, this fact earned a rebuke from Mr Kentridge in his final address. Therefore, the Deputy Attorney-General's questions and argu ments gave to me the appearance of one representing the state. It was not surprising, with the proceedings presenting an adversary appearance, that the record of the evidence duly appeared showing the Deputy Attorney-General on one side and Mr Kentridge, Counsel representing the relatives of, the deceased, as being 'for the Defence'. This led Mr Kentridge to point out that whatever might be the appearance, this was most inaccurate.
To sit, for nearly three weeks in a disused synagogue, in a tropical climate, in exceptional heat, is not conducive to maximum concentration. The public in the body of the court, however, were predominantly black, and I was impressed with the fact, as occurs here, that they displayed an instantaneous response to irony, humour or the cogency of the evidence as it emerged. Even the unfolding of a story as harrowing as that of the last twenty-six days in the life of Steve Biko could not, over almost three weeks, be devoid of some aspect of wry humour.
Thus, when Dr Hersh, a consultant neurologist, was being cross-examined he described finding a positive extensor plantar reflex when he examined Mr Biko at the request of the district surgeon. This means that the application of a pin to the side of the foot causes his big toe to jump upwards. It indicates the presence of brain injury. The police had indicated to Dr Hersh, as they had repeated in evidence, that Mr Biko had been shamming. Mr Kentridge sought to obtain from the witness his agreement that medical opinion was in no doubt that even a person with medical knowledge would find it impossible to simulate an exterior plantar reflex. With some degree of reticence, the witness said he agreed but had recently seen someone sham such a reaction. He was finally persuaded to disclose that an eminent physician who was present in court to advise the police had invited the witness to assist with an experiment. The witness had applied the pin and the doctor had shammed a response by raising his big toe. Professor Gordon, with the analytical approach of the true medical scientist, asked the witness, 'But how do you know he was shamming?'
Certainly, no one could suggest at the inquest that Biko's relatives were not afforded every opportunity to present their side of the story. Indeed, the situation here again seemed somewhat paradoxical. In England, were an inquiry to he conducted in the course of which criticism might be directed against the Government or one of its services, one would expect to find the cream of legal talent arrayed on the benches reserved for Government representatives. Very often somewhat lesser talent would be representing the interested parties. But at the Biko inquest the relatives of Mr Biko retained three counsel of great ability and experience, of whom Mr Sydney Kentridge was an outstanding example. He tended to dominate the court while the remaining representatives often seemed to be outclassed. Similarly, there was not an aspect of Mr Kentridge's case which had not been fully investigated and of which Mr Ken tridge was not the master. He had obviously spent much time making himself knowledgeable in regard to the function of, and injuries to, the brain and was able to crossexamine the medical evidence in a confident and scientific fashion. By comparison the other interested parties appeared almost to be picking up what they could about the case as they went along. Vital documents did not emerge until the case had been on for many days, but they must have been available had the matter been properly prepared.
Counsel for the doctors spent a considerable amount of time trying to get the inquest adjourned, at one stage he suggested until mid-January, to enable him to be instructed about the medical aspects so as to be able to cross-examine the witness. It is fair to say that part of the difficulty of those representing the police and doctors at the inquest, no doubt stemmed from the fact that an inadequate amount of information had been ascertained by the police inquiries which preceded the inquest. On balance, in regard to the issues which arose, it was probably more just, however fortuitous, that the case for Steve Biko's family should have been better presented than those of other interested parties.
Throughout the hearing one was conscious that, contrary to a post-inquest statement attributed to the Magistrate, this inquiry was about something more than an inquiry into just another death. On 27 August 1976, a very few days after Steve Biko had been detained, Donald Woods wrote an article for the Rand Daily Mail under the title 'Remember the name well'. The name was Steve Biko and, according to Mr Woods, he had intervened with the Minister of Justice, Police and Prisons on Biko's behalf because, as he wrote, 'I have not met in any country a man as gifted with intellect, personality and human understanding as . . . Steve Biko.' At the end of the article he wrote, 'He is not the first potential Prime Minister to be detained without trial in this country — but I hope they treat him well while he is inside, because he has a remarkable memory. I will tell you one thing: make a note of the name Steve Biko and remember it well. One way or another it will be writ large in the South Africa of tomorrow.' With his death those like myself who followed the inquest will perhaps now never know whether, as the police evidence would have us believe, he was a terrorist responsible for the distribution of literature inflaming others to violence or whether, as Mr Woods would have us believe, he was a potential South African Prime Minister. If, however, the world outcry concerning the conduct of the security police causes South Africa to have further thoughts as to the need to control and limit their powers, and even now to undertake a proper inquiry into the real circumstances of his death, Mr Donald Woods may still be right. The name of Biko may still be writ large in the South Africa of tomorrow.
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