Looked at dispassionately, the balance of probabilities has always been very much against the Chief Justice, Michael Corbett, and the other Lordships of the Appeal Court in Bloemfontein heralding the way to a New Order of justice and liberty in South Africa.
And, as that court has declared, it’s the balance of probabilities that counts.
The issue has been brought into sharp focus by the Appeal Court’s recent judgement in the case of General Lothar Neethling against Vrye Weekblad and the Weekly Mail. The demonstrable errors of fact and logic contained in the Appeal Court’s judgement; the ignorance, and the attitude and outrageous assumptions of the judges, not only demand repudiation. They also suggest that a very serious reassessment of the Appeal Court, as it is presently constituted, is urgently called for.
In 1989 Vrye Weekblad published a detailed account by former security police captain, Dirk Coetzee, of his activities in the early Eighties as a leading member of police “hit squad” – one of several set up to secretly murder and molest people identified as enemies of the apartheid State.
Amongst the many and diverse incidents included in the story was one in which Coetzee told how General Neethling, head of the Police Forensic Laboratory, had provided him and his senior officer with a special poison with which they planned to kill two of their victims. Neethling had told them, Coetzee said, that the poison would cause the victims to have fatal heart attacks – and then be untraceable in any post-mortem examination. When the poison failed, however, said Coetzee, the victims were simply shot and their bodies incinerated. The victims he named, one of them previously abducted from Maputo by South African security forces, have, in fact, disappeared without trace.
Captain Coetzee was prompted to speak out for publication – and Vrye Weekblad decided to publish his shocking story, after significant parts of it had been corroborated in a statement from death row by another former security policeman and hit squad member, Almond Nofumela.
Neethling sued the newpspaer for libel, and the newspapers, in their defence, said that in the extraordinary circumstances of the case, publication of Coetzee’s story had been justified in the public interest.
Central to the Appeal Court’s judgement in favour of the head of the Police forensic laboratory, and against the two newspapers, was the judges’ view that,
- on a “balance of probabilities”, Neethling’s denial that he had been involved in
providing poisons was more believable: a man of the status of General Neethling, the Appeal Court stated, was unlikely to get involved in “criminality”. What made Coetzee’s story implicating Neethling even more improbable, the judges said, was his claim that the poison had not worked. In the unlikely event that Neethling had provided poison, than a man of his professional skills (he has a doctorate in the study of poisons) would have provided a poison that worked;
- as the probabilities were in favour of General Neethling, so they were against Coetzee. Coetzee – and Coetzee’s story – the Appeal judges found totally unbelievable: “The status of the subject-matter communicated was nothing short of deplorable,” the Appeal Court found. “Its sole source was a disaffected and retired police officer who was a self-confessed murderer and thief [and liar, too].” Insofar as it had inculpated General Neethling, they said, Coetzee’s story was “riddled with inherent improbabilities”.
- Not only did the judges find Coetzee’s story unbelievable. They went further and
found that “The readers of the Weekly Mail [and Vrye Weekblad] had no possible legitimate interest in having communicated to them these untested, and largely heresay allegations by an informant whose credibility and motive alike were suspect.”
Also the credibility and commitment to the public good of the press received short shrift from the Appeal Court: without any evidence or argument, the motive of the two newspapers in publishing Coetzee’s story was declared fatally suspect – simply by virtue of the court’s own amateur – and arrogant – assumptions about how the press functions and what its motives are generally. For this purpose the court elevated the personal, prejudiced and otherwise banal view of the press expressed by Chief Justice Corbett in an earlier case, to the status of law:
Corbett first expressed his view of the press in the now notorious “Sage Holdings” case (where, too, it was totally unwarranted by the facts). In the Neethling/Vrye Weekblad case, Corbett’s views are quoted, without further ado, as a “useful” authority for damning the press out of hand:
“There is a wide difference,” [said the perceptive Chief Justice, by way of introduction] “between what is interesting to the public and what it is in the public interest to make known …
“The media have a private interest of their own in publishing what appeals to the public and may increase their circulation or may increase the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest …”
To settle the issue of the credibility of “the media”, in the Neethling case the Appeal judges found it “not inappropriate” to, in addition, quote a rhetorical question [a quaint euphemism for an expression of vicious prejudice?] posed by one Lord Macnaghten in 1908:
“Is it in the interest of the community, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self-defence, or from a bona fide sense of duty, should be extended to the communications made from motives of self-interest by persons who trade for profit in the characters of other people?”
“So much for the law [on the matter of the rights of the press],” concludes Mr Justice Hoexter – and four Appeal judges – Nestadt, Nienaber, Nicholas and Chief Justice Corbett himself – nodded their concurrence, thereby damning the motives of Vrye Weekblad and Weekly Mail in publishing Coetzee’s story as selfish, vulgar and malicious.
The judges may just, I believe, in fact have damned themselves. (But the subject of the press and the law, as raised in this case, is such a major one that that it must wait to be dealt with in a future edition).
To the probability of the actual existence of police hit squads, most significantly, the Appeal Court gave no consideration at all.
Are we condemned to accept this judgement as the last word on all these very serious subjects? Surely not!
Those who, like the judges of the Appeal Court, think that it is most improbable that General Neethling (and those of his status in service of the Afrikaner Nationalist State) would in the Seventies and Eighties have been party to killing the (mostly black) enemies of the Apartheid State, may continue to think so. On the other hand, those people who, with all their own intelligence, wisdom, knowledge and experience of life in South Africa (judges, readers might be amazed to learn, do not have a monopoly on those commodities) – on the farm, in the army, in the press, in the police – on hearing Coetzee’s story, found it entirely credible, are entitled to believe otherwise. When it comes to probability, they may justifiably believe that it’s most improbable that very senior police officers were not involved, one way or another, in such killings.
A thought: Their Lordships could, of course, themselves have been party to the killing of several such enemies of the Afrikaner Nationalist State – probably labelled by the courts at the time as “terrorists” and “agitators”. [They only gave the orders – Ed.]
One of the features of Afrikaner nationalism was its need to escape – and to justify its escape – from the standards and demands of the civilised world. And the Appeal Court of the Republic is that Afrikaner culture’s handiwork.
Unlike judges, newspapers do not condemn people to death, to imprisonment, or to pay heavy financial penalties and ruinous costs. The press does not claim Papal – or Appeal Court – infallibility. The press does not punish those who beg to differ, or who think the judge (of the information) - in this case the editor – is an ignorant, arrogant arse. The result is that many do think – and say – just that. Errors in an Appeal Court judgement are therefore far more serious than errors in a newspaper report. There are many serious errors in the Appeal Court’s judgement. The Court is shockingly amateur in its reasoning and insights – apparently not only ignorant about the role of the press and how it functions, but when it comes to analysing and understanding the evidence of Captain Coetzee, ignorant of the philosophy of logic and knowledge, and of the well developed field of social science.
Has the lack of a cultural and intellectual component in the training of lawyers finally reached our Appeal Court? South African lawyers have long since not been required to read the classics of Western thought and Civilization. They are not trained in logic or even the basics of the philosophy of knowledge; instead they are force-fed a mass of ineptly drafted and increasingly arbitrary rules, precedents and conventions, accumulated by generations of mediocre South African lawyers and law makers, who have been demonstrably arrogant, insensitive to the dictates of morality and devoid of respect from their fellow citizens.
But before we deal with some of the errors in the judgement, how – on a balance of probabilities – are we to rate the credibility and moral judgement of the current Appeal Court of the Republic of South Africa? And it’s commitment to truth and justice and the human rights of all South Africa’s people?
One of the features of Afrikaner nationalism was its need to escape – and to justify its escape – from the standards and demands of the civilised world. And the Appeal Court of the Republic of South Africa, as it exists today, is that Afrikaner culture’s handiwork. Might it not be fair to argue that the probabilities are that the Appeal Court of the Republic is fatally tainted by it’s own life “beyond the law” – it’s forty years of loyal service to apartheid, found by the rest of the world to be a crime against humanity?
The legitimacy of the court derives neither from an aristocratic idealism, as did that of the classical judge committed to the search for justice (Let Justice Prevail, Though the Heavens come Crashing Down, remember?), nor from a democratic foundation; it derives from the naked power of a fascist state. Lest We Forget.
Until the recent token appointment of Mr Justice Mohammed, every single one of the judges currently on the bench in South Africa was appointed by, and met the approval – and racial criteria – of an undemocratic, authoritarian, racist Afrikaner Nationalist government. All of them were happy to accept that approval and appointment. (Chief Justice Corbett himself became a judge in the Cape in the era of Verwoerd, and an Appeal Judge by the grace of John Vorster.) All are white. All are male. (Miss Justice Leonora van den Heever is undoubtedly the exception that proves the rule.)
Is it surprising, therefore, that South Africa’s courts lack a broader, cultured and informed view of the world, and moral sensibility?
Now let’s look again at one of those elements of Coetzee’s story that the Appeal Court judges found so improbable as to be impossible to believe: Judge Hoexter finds Coetzee’s behaviour in obtaining poison from General Neethling to be totally bizarre, to the point of being unbelievable. Why, he asks, would Coetzee want to bother to use a poison which was supposed to be untraceable in the corpse, in a case when there was no need for this subtlety? In a case where, in the end, they would in any case shoot the victims at point blank range and then incinerate their corpses? There was no need for the court to be puzzled. Coetzee’s motive for wanting to use poison is clearly stated in the record. “I thought poisoning is a better method of killing a bloke … than shooting him at point blank range while looking him in the eye,” he says. It is noteworthy from his evidence, that while Coetzee was party to several murders, he did not personally execute a single one of the victims in cold blood. He witnessed colleagues do the deed, or ordered or authorised others to do it. Coetzee is always consistent. To anyone who has chosen to take a pet to a vet to be “put to sleep” rather than slaying the creature himself with a blow to the head or a bullet through the brain, the motive is perfectly comprehensible. Judges condemn men to death, but prefer not to have to do, or even witness, the hanging themselves. It is, after all, purely a question of aesthetics – rather than of morality. According to Coetzee’s account, three attempts, with increased dosages of the poison supplied by Neethling, failed to have any effect on the victims. Their Lordships find it totally incredible – and therefore reason to dismiss Coetzee as a liar – that a leading toxicologist such as Neethling might provide a poison that did not work.
It appears their lordships have not read a decent detective thriller for a while either, or they might have been able to work it out. (They have also not read the history – as recorded in official congressional records – of similar bungled projects conducted by Neethling’s senior scientific colleagues in the CIA, or they would not have found the possibility nearly so unbelievable.)
The judges need, in fact, only have read Coetzee’s evidence with more care and then applied some logic: Coetzee not only says poison appealed to his sensibilities; there are clear indications in his evidence that it was to be used on the two victims as an experiment. He told the court that he had gathered from Neethling that the poison had been used successfully in experiments with sheep. Think about it – no matter how accomplished a scientist Neethling is said to be, he or any of his colleagues in the Western World are unlikely to have had much chance to conduct clinical trials on a sample of human subjects to prove the efficacy and establish the dosage of a drug which they believed would precipitate a fatal heart attack and then be untraceable in the corpse. The reasons why Neethling (as alleged by Coetzee), or, for that matter, anyone else involved in developing such a drug might have supplied it for use on victims who, in the normal course of events, were to be shot and incinerated anyway, are therefore completely rational, if still reprehensible: they presented a rare opportunity for a clinical trial in order to establish whether the drug was as effective in killing humans as it was in precipitating fatal heart attacks in sheep.
This also explains another aspect of Coetzee’s story, which the Judges found damningly unbelievable: they simply cannot understand why Coetzee and colleagues should have travelled around the country-side for nearly two weeks with the two victims in tow, periodically trying a different dosage of the drug on them – without success – before shooting them.
I would say that the particular clinical trial “conducted in the field” simply revealed that the drug was better at giving sheep heart attacks, than it was at giving human beings fatal heart attacks. Of course this clinical trial was so limited that, to be perfectly scientific, we would have to allow for the possibility that black ANC members have a peculiar immunity which a respected Aryan toxicologist could not be expected to predict.
The drug was obviously not essential for the actual extermination of poor “Peter” and “Vusi” [nowhere in the Appeal Court’s judgement do their Lordships do the unfortunate victims the courtesy of mentioning their surnames, so that it is not clear if they were foundling minors, or merely “boys” as traditionally described in certain Old South African circles – Ed]. But if the efficacy and required dose of such a drug could be proven (and according to Coetzee’s own statement, it clearly had not been, or General Neethling would not have had reason to ill-treat sheep with it, or have had need to ask those who administered it to the human victims to keep notes of their observations), it does not take an Appeal Court Judge to realise that such a drug could be a devil in the hands of a secret killer- and dirty tricks department. The Medicis already understood the value of being able to kill a victim in such a way that the actual killer and real cause of death might not even be suspected – let alone be traced. That’s if you know who the Medicis were.
- Martin Welz
The Press and The Law: The Appeal Court makes findings about Coetzee which are, to my direct personal knowledge, simply untrue. Why should I, a mere journalist, know better than a full bench of the Appeal Court? And what right have I to say it?
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