DID THE JUDGES READ THE RECORD?



In their judgement in the appeal of General Lothar Neethling vs Vrye Weekblad and the Weekly Mail, the Appeal Court judges return repeatedly to their (no doubt reassuring) finding that Captain Dirk Coetzee had a grudge against the police, which inspired him to invent his hit squad story – to embarrass the police in general and, for some still unexplained reason, General Lothar Neethling, head of the Police forensic laboratory, in particular.

I testified under oath at the trial. In my evidence I stated that Coetzee had made the same disclosures to me early in 1984. Initially he did so to demonstrate, with pride, what his police unit was able to do. His disclosures to me at that time included an account of how General Neethling had provided his unit with poison, which they administered to two prisoners.

Some time after he had made these disclosures to me, an incident occurred causing Coetzee to feel that certain of his police colleagues had let him down.

I saw Coetzee regularly throughout the period and was therefore able to follow the progress of events at first hand, including those events that led to his subsequent disillusionment with the Police.

At the Appeal, General Neethling’s new counsel, advocate Fanie Cilliers S.C., sought to discredit Captain Coetzee by suggesting that he had invented the poison story to avenge himself. But this argument is only persuasive if it was found that Coetzee had told the story for the first time after his fallout with his Police colleagues.

At the trial, when I was asked when I had met Coetzee (to be told his story), I explicitly stated: “it must have been early in 1984”. This was before his fallout with the police. To overcome this obstacle to his argument, Adv. Cilliers now suggested to the Appeal Court that my evidence as to when I was told should be ignored because, he argued, it “lacked any clear chronological point of reference”.

While at the trial I was not asked for a “clear chronological point of reference” (In fact Neethling’s counsel at the trial made it clear that he accepted my words to mean exactly what they stated), the record contains at least two such references: I had stated that I had got to know Captain Coetzee with his friend, Frans Whelpton, whom I met “late in 1983, at the time when the Minister of Manpower, Mr Fanie Botha was forced to resign”.

This is an easily verifiable date. In addition, I explained that some time after getting to know Coetzee, and his story, I had had contact with him about possible illegal telephone tapping by the police – the incident that would ultimately precipitate the fallout with his colleagues. The time that this incident occurred can also easily be determined. Judge Hoexter, with no reference to this evidence, nevertheless finds “considerable force” in advocate Cilliers’ argument.

Judge Hoexter also rejected the trial court’s finding – that Coetzee had told me that he had obtained the poison from General Neethling personally – as an “overstatement of the effect of what Welz in fact said”.

In support, this contention, Judge Hoexter claims (again quoting advocate Cilliers) that I had been able to say “no more than that ‘they’ had obtained poisons ‘from the police laboratories’ and that the name of Neethling had been ‘mentioned’.”

The judge then claims that, looked at “dispassionately” it was “not improbable” that I had merely happened to mention the name of General Neethling as being the head of the forensic laboratory. He then proceeds to make a categorical finding: “The evidence of Welz is not to the effect that Coetzee explicitly stated to him that the appellant himself had supplied Coetzee with poison.”

Given the judge’s confident tone, one would hardly think to check the trial record – but, in fact, what the judge says is simply not true. He has not only not looked at the evidence dispassionately; he appears not to have looked at the evidence at all, but to have relied on advocate Cilliers’ distorted version of it.

The trial record reveals my evidence to have been: “He [Coetzee] then told … how they had obtained poisons from the police laboratories – and he did name General Neethling by name at the time … I say that because I don’t recall the names of other policemen that were involved … in this specific incident …”

Only three pages further, in reply to a question, I said quite explicitly that I had been told “… that General Neethling had given poison …”

At the trial, Neethling’s former counsel conceded that Coetzee had told me that he had received poison from Neethling. In fact, counsel at the trial put it to me: “Did you discuss [with Vrye Weekblad] the fact that you could give useful evidence because Coetzee had told you, way back in 1984, that he had got poisons from General Neethling?”

Later in the record Neethling’s counsel says again: “… you knew already in 1984 from what Coetzee had told you that General Neethling was involved in the poisoning of people?” To which I replied: “I knew that Coetzee had told me that, yes.” One could hardly be more specific, but, had I been challenged on the point, I might have been. Which makes the fact that the Appeal Court even allowed Advocate Cilliers to raise the argument on Appeal that much more incomprehensible.

While Judge Hoexter’s misreading or misinterpretation of the evidence is cause for concern, it is his four colleagues’ concurrence which is most disturbing. Is it possible that five senior Appeal judges could all misread a trial record so extensively? Or have the possibly not bothered to read the record at all, relying instead on the word of their trusted colleague? In either case it is not good enough, when five Appeal judges are expected each to have given the case their full and careful consideration.
- Martin Welz

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