Description
Proceedings began on this day with an order from Judge De Wet for the court to be cleared for the cross-examination of Mr X. This final stage of Mr Berrange’s cross-examination of Bruno Mtolo was for the most part based on an examination of the contradictions apparent in the evidence Bruno Mtolo had given as a state witness in this and two other trials which had recently taken place in Pietermaritzburg and Durban. In both other cases Bruno Mtolo had given evidence against persons charged in connection with activities of the Regional Command in Natal. Mr Berrange sort to expose the ways in which Bruno Mtolo had fashioned and tailored his evidence to suit the circumstances of each case in which he was appearing as a state witness.
Immediately after the conclusion of Bruno Mtolo’s re-examination, Dr Yutar asked Judge De Wet if he was willing to make an order in terms of this witness and the acceptability of his evidence. Following a brief discussion between Mr Berrange, Dr Yutar and Judge De Wet, regarding the procedure which had been followed in the Pietermaritzburg trial which had taken place three weeks ago, Judge De Wet decided that he would postpone making his orders for this and other witnesses in a similar position until the time of his Judgement. Thereafter, Dr Yutar proposed the recall of W/O Dirker for further cross-examination.
Mr Berrange addressed the court on this proposal and informed Judge De Wet that the defence council needed more time in order to go through some of the original exhibits put in by W/O Dirker which had not yet been made available to them. As all of these exhibits were available in court on this day, Mr Berrange requested that during the adjournment the defence councils be permitted to go through these documents with the accused in the courtroom. Dr Yutar objected to this on the grounds of “security concerns” and suggested that the consultation take place in the holding cells below the court. Judge De Wet said that he thought it unnecessary to have all of the exhibits taken down below and said, “one mustn’t over-do this security issue, Mr Yutar, the police can be present without actually listening to what is being said”. Thereafter, Judge De Wet agreed to give the defence until about 2:30pm to consult with the accused at which time court was resumed for the cross-examination of W/O Dirker which was not completed on this day and was thus carried over to Monday.
Witnesses Called
14th State Witness: Bruno Mtolo – Saboteur, Natal. (Recalled).
Further cross-examination by Mr Berrange.
Despite admitting that he understood English perfectly well and had read advanced philosophical theses written in English, Bruno Mtolo still requested to speak through the interpreter. Thereafter Mr Berrange immediately dealt with the evidence in regard to Bruno Mtolo’s visit to the High Command in June, 1963. By reading from the record of Bruno Mtolo‘s examination-in-chief Mr Berrange established that Bruno Mtolo claimed that he had received money for this trip from Albon Duma who had in turn received the amount of R20.00 from George Naicker when making the booking arrangements for Bruno Mtolo’s trip.
Thereafter Mr Berrange turned attention to Bruno Mtolo’s attendance at a trial approximately three weeks earlier in Pietermaritzburg in which he gave evidence against a number of people who were alleged to be on the Regional Command at Pietermaritzburg. Mr Berrange put it to Bruno Mtolo that, “You know that at that trial, they were endeavouring to establish that Naicker was the treasurer to the High Command”. Bruno Mtolo denied that he knew such a thing, to which Mr Berrange responded:
Oh yes, you do! In any event you know that the defence was trying to establish, because this is the question that was put to you. It was put to you by cross-examining counsel: “I want to put to you as well that George Naicker was at no time the treasurer of the Regional Command”. Your reply was “he would not be speaking the truth”.
Mr Berrange continued to read from the record of the Pietermaritzburg trial and proved that in that instance Bruno Mtolo had told the court at least three time that George Naicker had personally handed him the money for his visit to the High Command. In the Pietermaritzburg trial Bruno Mtolo had even given details of a conversation he had had with George Naicker when collecting the R20.00 for his trip. In explaining the reason for this blatant contradiction in his evidence in the Rivonia and Pietermaritzburg trials, Bruno Mtolo insisted that on the occasion when he actually met with the High Command Ablon Duma handed him the money. It was on the second occasion when he was instructed by the Regional Command to go see the High Command that he had been handed the money by George Naicker. Although, on this second occasion Bruno Mtolo claimed that he never actually went to the High Command.
Mr Berrange referred back to the Pietermaritzburg trial records and showed that Bruno Mtolo had clearly stated that the money handed to him by George Naicker was on the occasion when he “went to a meeting of the High Command”. Bruno Mtolo persisted in his version of events and Mr Berrange stated:
Yes, well what I want to suggest to you, before I go any further, is that you are adept at tailoring or fashioning your evidence to meet the circumstances of the case in which you are giving evidence! When you gave evidence last time… do you want to reply to that? I’m sure you’ll deny it!
When you gave evidence in this trial, in regard to Rivonia, the matter was never at issue as to whether or not it was Naicker or whether it was Ablon Duma who gave you the money. But when you gave evidence at Pietermaritzburg, the matter was very much at issue for the purpose of proof that Naicker was the treasurer.
And I want to suggest to you that it is for that reason that you fashioned your evidence in Pietermaritzburg to overcome… or in order to assist the State in establishing this fact.
Bruno Mtolo offered no additional explanation in regard to this issue and Mr Berrange then turned attention to “a similar theme” in regard to Bruno Mtolo’s evidence on the sabotage act listed as Item No.76 of Annexure B. Mr Berrange read from the evidence Bruno Mtolo had given in Durban in which he had been “very anxious” to tell the court that the petrol bomb which had been put on an empty passenger coach on a North Coast train “was a mistake” and that the Regional Command did not authorise or approve of it. Mr Berrange then read from the record of Bruno Mtolo’s examination-in-chief in the Rivonia trial in which he had claimed that the Regional Command made a decision that the group led by Ebrahim would “put a petrol bomb on the train”.
Bruno Mtolo tried to offer an explanation and Mr Berrange told him after a few feeble attempts, “This time you can’t get out of it so easily!” Bruno Mtolo eventually insisted that it had been “a mistake” when he had said that the Regional Command instructed that this act be committed, to which Mr Berrange responded, “And you prefer to call it a mistake rather than an untruth?” Bruno Mtolo repeated that it was a mistake and Mr Berrange and continued to pursue the matter for some time.
Thereafter, Mr Berrange dealt with Item No.147 so as to “see if [Bruno Mtolo’s] evidence is ever fashioned”. In regard to this incident Mr Berrange asked Bruno Mtolo to, “answer one very simple question – in whose room was the bomb to be placed – in the friend’s room or in the induna’s room?” Bruno Mtolo responded that the bomb had been placed in the induna’s friend’s room. Mr Berrange showed that in the Pietermaritzburg trial Bruno Mtolo said that the bomb was placed in the induna’s friend’s room and in the Rivonia trial he said that it had been in the induna’s room. Mr Berrange argued that this “just shows you what sort of witness you are”. In trying to explain this contradiction Bruno Mtolo once again said that there had actually been two occasions on which a bomb had been placed in each of the rooms on these separate occasions.
Following this Bruno Mtolo claimed that the second occasion on which the bomb was placed in the induna’s room the act had not been authorised by the Regional Command. After much discussion of the issue and reading of court records, Mr Berrange stated:
You see Mtolo, so the position is this – that having once committed yourself to having said to his lordship in answer to my question that you had never given evidence in any other cases which were not political, you the charged your evidence from what it had been in chief, where you said that this was an act of sabotage committed with the full approval of the Regional Command, by placing a bomb in the induna’s room. You then said this is not a political case, and that you said the person who did that, had no connection with the organisation. You see, that’s what I mean by fashioning your evidence!
After the tea adjournment Mr Berrange continued to deal with the issue of the pipe bomb placed in the induna’s room. Mr Berrange argued that it was because Bruno Mtolo had already changed his evidence to state that the bomb in the induna’s room had been a mistake under cross-examination during the Rivonia trial that a few weeks later he gave evidence in Pietermaritzburg in which he “invented this story about the authorised act being one in which the bomb was placed in the friend’s room”. Of course Bruno Mtolo denied this suggestion but the line of question seemed to have had an impact on Judge De Wet who asked the witness “was there, in fact, any bomb put in this assistant of the induna’s room” to which Bruno Mtolo responded that there had been.
Mr Berrange spent much time trying to establish which acts of sabotage Bruno Mtolo claimed had been authorised by the Regional Command. He read from the evidence of a state witness named Patrick Mlabo in the Pietermaritzburg trial who had told the court that Bruno Mtolo was the one who handed a bomb to Nduli “because he got hurt by a Policeman and he was going to put it in the induna’s room, and it must also draw the inference, an irresistible one, it is clear that he must have told the Police that, but despite this evidence that is given by a State witness, and he gave evidence before you gave evidence, you were never asked by the police whether it is true that you were going to bring a bomb!” The next issue deal with by Mr Berrange was contradictory evidence given by Bruno Mtolo in regard to whether or not he was present at a meeting a meet of the Regional Command in which it was decided to attack a signal box in Kwamashu.
Mr Berrange demonstrated that in this and other political cases in which Bruno Mtolo had acted as a state witness, it was apparent that Bruno Mtolo was unwilling to concede that he might be mistaken in regard to anything which may support the defence’s case. Conversely, Bruno Mtolo was shown to have changed his evidence and admitted mistakes many times when in benefitted the state’s case for him to do so. In closing his cross-examination Mr Berrnage summarised that the position was this:
You made a statement to the Police after questioning, and after two or three weeks. They didn’t quite believe you, but you knew that that statement couldn’t be used against you because it amounted to a confession as you’ve said to his lordship in the other trial. When you were asked to go to a Magistrate and make a confession there, you refused to do that.
Bruno Mtolo said that this was correct but the thing that the police did not believe was that Bruno Mtolo had gone to Rivonia. Mr Berrange said “well maybe they were correct, I don’t know, but the thing about it, is this – my question was, knowing that the statement which you made to the Police couldn’t be used against you, when you were asked to go to the Magistrate and make a confession, that you refused?” As soon as Bruno Mtolo showed signs of avoiding the question, Mr Berrange bellowed angrily, “Yes or no!” to which Bruno Mtolo replied, “That is so”.
Re-examination by Dr Yutar.
Dr Yutar asked Bruno Mtolo if, having given evidence for the state in this and the Pietermaritzburg cases, the police had realised him from custody. Bruno Mtolo said that he had still not been released.
No further cross-examination.
170th State Witness: Warrant Officer Karel Joseph Dirker – Security Branch, Grays. (Recalled).
Further cross-examination by Mr Berrange.
W/O Dirker was first questioned by Mr Berrange in regard to the two instances on which he had searched the post box belonging to Ruth First in which mail addressed to Tillie Julius had been confiscated. W/O Dirker claimed that information he had received was that Tillie Julius was a pseudonym used by Ruth First but admitted that, to his own knowledge, it could have been a pseudonym used by any of the people who had access to the post box.
Mr Berrange then asked W/O Dirker about the occasion, whilst he was at Rivonia, in which he took Accused Nos. 2, 7 and 5 as well as Bob Hepple around the different rooms. Mr Berrange highlighted the fact the W/O Kennedy’s evidence had been that he had witnessed W/O Dirker talking to Bob Hepple in Room One and that Bob Hepple had denied any knowledge of the room’s contents. W/O Dirker contradicted this and said that what Bob Hepple had told him was that he – Bob Hepple – had been in the room when the police first arrived. W/O Dirker said that he gave Bob Hepple the usual warning before putting questions to him and claimed that he never read his notes back to him or give him an opportunity to correct anything W/O Dirker had written down.
Similarly, W/O Dirker said that he made notes regarding his search of Walter Sisulu but had not read these back to him or given him a chance to correct what had been written down. Mr Berrange asked W/O Dirker if he didn’t know that it was a Judge’s Rule that a person should be given the opportunity to read and correct any statement taken from them by the police. Before W/O Dirker could respond however, Judge De Wet corrected Mr Berrange and told him that only if a statement was going to be used as evidence did the Judge’s Rule stipulate that the person who made the stamen should read over and amend it if necessary. Mr Berrange insisted that his understanding was that the police officer would have to follow such a procedure if the statement would be used as evidence in court – as was now the case in regard to what was said to W/O Dirker by Walter Sisulu. Judge De Wet said that he had not heard this evidence in regard to Walter Sisulu as of yet so, technically, W/O Dirker had no need to warn the accused as such at the time of him being searched.
Mr Berrange then made W/O Dirker give this evidence by asking what remarks Walter Sisulu made to W/O Dirker when he was searched and taken around the rooms. The same was said in regard to Ahmed Kathrada. However, the issue of the Judge’s Rule discussed above was not pursued further by Mr Berrange who turned attention instead to the documents seized by W/O Dirker and W/O Kennedy in Room One. Importantly, it was during this stage of his cross-examination that W/O Dirker claimed to have found Exhibit R.71, Operation Mayibuye, lying open on the table in Room One during the search he conducted with W/O Kennedy in the presence of Accused No.5, Ahmed Kathrada. W/O Dirker claimed that he had simply put this document with the others he had found on the table into a paper bag without marking it. Furthermore, W/O Dirker claimed that he had not told W/O Kennedy that it was not necessary to mark documents found on the table in Room One – despite the fact that W/O Kennedy had said the opposite during his evidence.
Thereafter, Mr Berrange informed W/O Dirker that his intention was to deal with Exhibits R.189 to R.193. These Exhibits were four bottles, two of which contained benzene, which were all found in Room Three according to W/O Dirker. W/O Dirker described the bottles as round and of different seizes but could not remember where they were in fact found in the room. He only took possession of the bottles on the 12th after photographs of the contents of the room had been taken and claimed that he had not personally moved these bottles before removing them. Mr Berrange the referred the photos of the rooms presented in court and confirmed that W/O Dirker could not say that the bottles depicted in them were those handed in to the court.
Mr Berrange said that his instructions were that Room Three had no shelf and that W/O Dirker must have confused it with the one in Room Four. W/O Dirker insisted that there was a shelf in Room Three from which he removed certain documents. Mr Berrange asked if he was sure that he had removed documents from this shelf and W/O Dirker then said that he wasn’t sure what had been on the shelf in Room Three. W/O Dirker then told Mr Berrange that he placed these bottles in a carton box and marked it Room Three. It was week after the initial raid that he made a list regarding the bottles and other items found in Room Three. Mr Berrange asked W/O Dirker if there had been a table in Room Three and W/O Dirker said that there was not and that he was definitely not mistaken in this regard. W/O Dirker said that it was not a large room and described its features. He claimed that he had put the bottles into the carton box on the 12th and did not know where they were after he put them in the carton.
Judge De Wet interrupted Mr Berrange as he was about to deal with Travallyn and told him that he wanted to put some questions to the witness before adjourning. Judge De Wet asked W/O Dirker to look at photo No.10 and W/O Dirker said that the object appearing on the side of the photo was not a table but the leg of a kind of old rack. W/O Dirker then said in response to Judge De Wet’s questioning that Harold Wolpe had been arrested about 14 days after the raid of Rivonia. He went on to explain that the police started looking for him after the finger print test results came back with a positive identification for Harold Wolpe. W/O Dirker claimed that he had seen Harold Wolpe a day or two before the raid but not since then.
Court was then adjourned until 10:00am on Monday.
Sources
Dictabelts: (Vol.52/5A/14d) (Vol.52/5A/15d) (Vol.52/5B/16d) (Vol.52/5B/17d) (Vol.52/5B/18d) (Vol.52/6A/19d) (Vol.52/6A/20d) (Vol.52/6B/EMPTY).
Percy Yutar Papers:
Handwritten notes from the prosecution for 28th February, 1964 (Ms.385/36/7).
Evidence by Bruno Mtolo (MS.385/2).
Continuation of evidence by Bruno Mtolo (MS.385/3).
Extracts of evidence by Bruno Mtolo (MS.385/5).
Wits Historical Papers:
O – O50 Notes of State Witnesses evidence (AD1844.A10).
Memorandum re specific acts of sabotage – Durban, handwritten, (AD1844.Ba10.14).
Bruno Mtolo background and personality (AD1844.Ba10.7).
Bruno’s Johannesburg trips (AD1844.Ba10.9) NOT ACCESSABLE ONLINE.
Bruno notes on disillusionment (AD1844.Ba10.6).
Memorandum on evidence by Mtolo, extracts cut out of pages (AD1844.Ba10.2).
Evaluation of evidence: Notes on Mtolo (AD1844.Ba10.1)
Notes by Bernstein (AD1844.Ba10.11).
Kathrada’s notes (AD1844.Ba10.12).
Goldberg’s notes (AD1844.Ba10.13).
Bruno Mtolo’s Evidence (AD1844.A16).
Examination in Chief and Cross Examination (AD1844.Ba.10.16).
Key Words
Key State Witness, Bruno Mtolo, Mr X, Operation Mayibuye, Rivonia Raid, Liliesleaf Farm, Ruth First, Fabricating Evidence, Sabotage,
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