Description
Proceedings began on this day with a request from Dr Yutar to the effect that D/Sgt Kawe be cross-examined first by the defence council. This was because Dr Yutar had received information that D/Sgt Kawe was required urgently in the Eastern Cape. Mr Berrange agreed to this and added that he wished to inform the court that he had received reports stipulating that certain witnesses the defence had intended to recall for cross-examination were urgently required in other cases. As a result of this the defence council had decided to not recall these witnesses for additional cross-examination and Mr Berrange stated that he was content with their evidence as it stood “without crossing the ‘T’s and dotting the ‘I’s”. As such the defence concluded its last cross-examination of the witnesses called by the state on this day – which was that of W/O Dirker.
Following the tea adjournment on this morning, Mr Berrange complained to the court that during the break members of the bar who had come to listen to a portion of these proceedings told him that they had been prevented from entering the courtroom by certain police officers at the doors who claimed to have been acting on the orders of Judge De Wet. Judge De Wet told Mr Berrange that “My order has been the exact reverse. I told the registrar that officials of the court and members of the bar are entitled to come into the court if there is room for them. I don’t want them just standing about… And I might say now that members of the bar may come and sit in the jury box if they wish it”.
Judge De Wet in conversation with Dr Yutar stated that he had now received serval complaints regarding the police involved in this trial and made it plain that “the Security Police have got no right to give any orders without consulting me, the presiding Judge”. Dr Yutar said that these orders had been perfectly clear and asked if the defence could furnish him with the name of the officer who had blocked members of the bar at the door so that the prosecution could follow up on this issue. Mr Berrange informed the court that Mr Sagged was one of three such members of the bar who had approached him during the tea break and complained that they were prevented from coming in by a police officer sitting at the back of the courtroom.
This day of W/O Dirker’s cross-examination was by far the most significant in terms of the defence’s case for Accused No.6, Lionel Bernstein. On this day Mr Berrange convincingly challenged W/O Dirker’s evidence in regard to the engine of Lionel Bernstein’s car parked at Liliesleaf Farm which he claimed was ice cold at 4:00pm on the afternoon of the raid. By reading extracts of the Judgement, in the case in which Michael Harmel had successfully sued W/O Dirker and reclaimed R200.00 worth of damages from him, Mr Berrange suggested once again that W/O Dirker was an unreliable state witness who was willing to falsify evidence in court in order to ensure a conviction. In addition to this, Mr Coaker also posed a serious challenge to W/O Dirker’s evidence regarding James Kantor’s presence at the farm on the day after the initial raid.
Following the re-examination of W/O Dirker, Mr Berrange informed the court that a number of documents would have to be put in by the defence as a result of them having been relied on in the cross-examination of this witness. Dr Yutar said that as long as it was the defence’s intention to simply have on record that these documents had been found in certain rooms at Liliesleaf Farm, he would agree to have them submitted by consent rather than having to recall those officers who found them. Thereafter, Dr Yutar asked to adjourn until the following morning when, “subject to crossing the ‘T’s and dotting the ‘I’s” in terms of submitting certain documents, he would deliver the state’s closing address for its case. He added, just before adjourning, that Mr Berrange had stated during the cross-examination that there was no evidence for where Exhibits XX and YY had been found. Dr Yutar reminded the court, however, that D/Sgt Du Preez said exactly where he found Exhibit XX and Leonard Kawe had said that he had found Exhibit YY personally in Port Elizabeth. After some discussion this was accepted by both Mr Berrange and Judge De Wet, following which court was adjourned.
Witnesses Called
139th State Witness: Detective Sergeant Leonard Kawe – SAP, Port Elizabeth. (Recalled).
Cross-examination by Mr Berrange.
Mr Berrange began by informing the court that the defence’s allegation would be that the documents, translated by D/Sgt Kawe and submitted as Exhibits XX and YY, were such that they would have never been issued by the ANC. D/Sgt Kawe told Mr Berrange that D/Sgt Du Preez handed him the documents on 29th January, 1964, in Pretoria. Referring to Exhibit XX D/Sgt Kawe confirmed that there were many spelling mistakes, even in the heading of the document, particularly concerning the misuse of the letter M instead of N. Mr Berrange then asked D/Sgt Kawe about the validity of certain words, in terms of isiXhosa language, which were written on the document. These words, in their English translation, were “henchman” and “oppressed”.
Mr Berrange then asked D/Sgt Kawe to take Exhibit YY and write down a translation of its first 6 lines on the piece of paper before him. Whilst waiting for the translation, Mr Berrange informed the court that there had not been any evidence in relation to where this document, or the previous document, had come from. The translation written by D/Sgt Kawe at this stage was:
Most of the African National Congress leaders had gone underground. This is done so that the ANC should carry on, and so that the struggle for freedom should go forward. This is the time that the ANC needs trustworthy leaders because the movements that fight for freedom have come to a higher stage. Our house is on fire…
Although D/Sgt Kawe had written more, the above was the extent of the translation read aloud to the court by Mr Berrange. Mr Berrange then acknowledged right away that the translation D/Sgt Kawe had just provided had the same meaning as the original translation he had made, which was as follows:
Many of our ANC leaders have gone underground. This is to keep the organisation in action, to preserve the leadership, and to keep the freedom fight going. Never has the country and our people needed leadership as they do now in this hour of crisis. Our house is on fire.
D/Sgt Kawe claimed that although there was a difference in words, the meaning in both translations was the same. Mr Berrange told D/Sgt Kawe that the interesting thing about this was that the alleged broadcast made by Walter Sisulu (Exhibit R.60) contained the exact same words as the ones provided by D/Sgt Kawe in his original translation and not in the one he wrote for the court on this day. D/Sgt Kawe said that he could not explain why his words and punctuation were exactly the same as those used by Walter Sisulu.
D/Sgt Kawe insisted that he had never seen Exhibit R.60 before and that it must have been a coincidence that he had used the same words. Mr Berrange also pointed out the Exhibit XX was littered with spelling errors while Exhibit YY had no spelling errors at all.
Re-examination by Dr Yutar.
D/Sgt Kawe said that he had seen a similar document to Exhibit XX in Port Elizabeth during December, 1963, and that he had only been asked to translate the document on 29th January, 1964, by D/Sgt Du Preez who did not show him any other documents. Exhibit YY was also first shown to D/Sgt Kawe on the 29th but did not know where it had come from. D/Sgt Kawe repeated his claim that he had never seen Exhibit R.60 before this day in court and said that if he had been given more time to translate in court on this day, he would have been able to do a better job.
No further cross-examination.
170th State Witness: Warrant Officer Karel Joseph Dirker – Security Branch, Grays. (Recalled).
Further cross-examination by Mr Berrange.
Mr Berrange began by light-heartedly reminding W/O Dirker that when they had last left off Mr Berrange was questioning him in regard to “when is a table not a table”. It was clarified to the court that the shelf referred to in Room Three by W/O Dirker was in fact a trestle table. Mr Berrange informed the court that he did not know if anything significant would rest on this point but wanted to be absolutely certain. Thereafter, W/O Dirker explained that he had handled a number of a political cases in which Harold Wolpe had been involved in representing the accused. Mr Berrange asked W/O Dirker what the inference he had expected the court to draw from this evidence which W/O Dirker willingly offered.
W/O Dirker said that he was not asking the court to draw any inference from this evidence, he just brought it up to indicate what he knew of Harold Wolpe and how he knew it. Mr Berrange accepted this and continued to ask if, when W/O Dirker gave evidence of certain people who are known to the police, he wanted the court to draw any inference from this evidence. Dr Yutar tried to object but Judge De Wet said that these were legitimate questions being put by Mr Berrange. Mr Berrange went on to ask W/O Dirker if he intended the court to draw any inference he had given in regard to certain persons having been seen in the company of listed communists. W/O Dirker said that he had personally come to conclusions as a result of these observations which were natural in his line of work. Mr Berrange said that he understood this but just did not know for what purpose W/O Dirker had mentioned all of this to the court. Mr Berrange then turned his attention to Moses Kotane as the first example of one of these persons brought up in W/O Dirker’s evidence.
Moses Kotane was said to have been the secretary of the Communist Party which existed until 1950 and that he made this allegation it was based on information he had received, both written and verbal. According to W/O Dirker, Moses Kotane left the country with Duma Nokwe at about the same time in January, 1963. Mr Berrange said that the fact that W/O Dirker had said in his evidence that Moses Kotane had fled instead of merely left the country was an interesting indication of the way in which W/O Dirker’s mind worked. It was interesting because there was no charge against him or idea of him being arrested when he left the country.
During his examination-in-chief W/O Dirker had said that after the Communist Party had been banned J. B. Marks then joined the ANC. Mr Berrange asked if this was in fact true. W/O Dirker said that from his investigations at the time the Communist Party was banned he knew that many of its members then joined other existing organisations which were not banned. Mr Berrange then asked rather forcefully if W/O Dirker would deny that J. B. Marks had been a member of the ANC long before the Communist Party was banned in 1950. W/O Dirker said that he would not deny this but that it was not the information he had received. Mr Berrange stated that he doubted the significance of all of this evidence given by W/O Dirker as he had been an ordinary C.I.D. officer before 1952 and had no involvement in the investigations of political matters.
Attention was then briefly placed on the occasion on which W/O Dirker had seen Ahmed Kathrada with his arm around Joe Modise and sitting with Duma Nokwe in the office of Walter Sisulu. W/O Dirker confirmed that he had served Ahmed Kathrada with orders banning him from communication with other listed communists and claimed that Duma Nokwe but could not recall if Duma Nokwe was under such restrictions at this time. Joe Modise was not a restricted person and W/O Dirker said that he took no steps against Accused No.5 or the other people involved in this meeting at the time. Mr Berrange put it to W/O Dirker that Duma Nokwe was listed and banned at this time and were both committing an offence, yet W/O Dirker took no steps against them at this time.
W/O Dirker said that he considered Duma Nokwe as having fled the country because he was due to appear in court in connection with charges of communism against him a week before he disappeared. Similarly, W/O Dirker considered Oliver Tambo as a person who fled because he would have been detained under the Emergency Regulations if he had stayed in the country. Mr Berrange stated that at the time he left the country Oliver Tambo was not a listed communist and was well-known as a devout Christian and churchgoer. W/O Dirker maintained that Oliver Tambo had left the country because of the Emergency Regulations. Mr Berrange also stated that it was purely an assumption on the part of W/O Dirker that Oliver Tambo was referred to as OR, ORT or O. W/O Dirker said that he had been present when ANC members referred to Oliver Tambo as OR and it was from documents that he had seen that he had seen him referred to as ORT or O.
The last person W/O Dirker was asked about at this stage was Cecil Williams who he said did have charges pending against him when he fled the country. These charges were from the occasion on which he was arrested with Nelson Mandela outside Howick. After discussion of Cecil Williams’ escape from the country in October 1962, attention as turned to the investigation of Room One at Liliesleaf Farm.
Mr Berrange asked W/O Dirker to describe the burnt pieces of a handwritten letter purportedly found in the Thatched Cottage which had subsequently been lost by the police. W/O Dirker claimed that the words on this burnt piece of paper were not discernible and his attention was not drawn to any word in particular. Mr Berrange said this was important because the evidence that a burnt piece of paper with the word “trainee” on it was being disputed by the defence. W/O Dirker said that he could not recall such a word and could not explain how this document had been lost in his office after having been sent back from the handwriting expert.
Ahmed Kathrada then became the central focus of Mr Berrange’s questioning. Mr Berrange put it to W/O Dirker that Ahmed Kathrada would say that he broke his house arrest order and went into hiding because he felt that he might at any stage be detained for 90 days. Mr Berrange implied that the carrier bags and suitcases containing many clothes, a bottle of brandy and a scrabble board found during the Rivonia raid were the property of Ahmed Kathrada taken by him into hiding. Mr Berrange asked W/O Dirker if he thought Ahmed Kathrada had been justified in his belief that he might be immanently arrested prior to his going into hiding. W/O Dirker said that as far as his knowledge was, Ahmed Kathrada had no good reason to believe that he might be detained for questioning.
Mr Berrange asked if W/O Dirker was seriously suggesting that Ahmed Kathrada was not going to be detained for 90 days, to which W/O Dirker replied that he could not say if this would or would not have happened at some stage. W/O Dirker went on to deal with the occasions on which Ahmed Kathrada had been arrested on some or other charge and had either had those charges withdrawn or had been acquitted. Mr Berrange led W/O Dirker in regard to a great number of charges which had been laid against Ahmed Kathrada since the earliest years of the 1950s up until October, 1962, when he was served with house arrest orders.
W/O Dirker would not deny the fact, although it did not correlate with his own timeline, that Ahmed Kathrada had gone into hiding a few days before the 90 day detention law was passed on 1st May, 1963. W/O Dirker confirmed that the police had found a few pieces of plaster during the raid of Rivonia but he was not sure if Ahmed Kathrada had used these for a face mask to disguise himself. Mr Berrange then asked W/O Dirker about a number of items which had been found in Rivonia such as rubber gloves, typewriters and fabric used for curtains. W/O Dirker told the court that an effort had been made by the police to relate certain documents found at Mountain View and Travallyn to the typewriters found at Rivonia. Referring to a report made by D/Sgt Du Preez, handed to him by Dr Yutar, W/O Dirker explained that D/Sgt Du Preez had examined 10 typewriters, five of which had been found at Rivonia.
W/O Dirker claimed that according to D/Sgt Du Preez’s report, certain documents found at Travallyn and Rivonia were proved to have been typed by the same type of typewriter as one found at Rivonia. After questioning W/O Dirker in regard to the fingerprints which had been taken at Rivonia and in some cases, but by no means all, positively identified with prints of the accused which were already in the possession of the police. Thereafter, Mr Berrange turned his attention to one of the most important points of W/O Dirker’s evidence which the defence would challenge. This point concerned the inspection of Lionel Bernstein’s car by W/O Dirker.
W/O Dirker claimed that he had inspected Lionel Bernstein’s about one hour after the police first arrived at Liliesleaf Farm. He stated that when he lifted the car’s bonnet he found that the engine was completely cold and had even brought the attention of another officer to this fact. W/O Dirker explained that he examined the car of Lionel Bernstein at the same time he had examined the car of Bob Hepple. It was because Bob Hepple had purportedly told the police “I have just arrived” that he decided to examine the engines of his and Lionel Bernstein’s car. Mr Berrange claimed that their might have been an argument between Lionel Bernstein and W/O Dirker concerning what the latter defined as a cold engine. W/O Dirker responded, “My lord, I know Lionel Bernstein”. Mr Berrange interrupted, “Did I ask you that?”, but W/O Dirker continued, “He is not a man you can talk with. He will not talk with the police”. Mr Berrange said that found it interesting that W/O Dirker had not examined the engines of any of the other cars aside from these two and could give no reason for this.
Mr Berrange asked W/O Dirker if he would deny or admit it if Lionel Bernstein were to say that he had arrived at the farm shortly before the arrival of the police. W/O Dirker said that his opinion was that the engine was ice cold and that the car must have been parked there for two or three hours before the police arrived. Mr Berrange then asked W/O Dirker if he would deny that the records of the Marshall Square Police Headquarters would show that Lionel Bernstein had signed in there on the 11th of July as he was required to do every day. W/O Dirker said that as far as he could recall Lionel Bernstein had signed in at about 12:00pm that day. Mr Berrange told him that Lionel Bernstein would say that he had signed in at about 1:30pm or 1:45pm and that the matter could be easily clarified by the records themselves.
Mr Berrange then told W/O Dirker that Lionel Bernstein, in his professional capacity as an architect, had then gone from Marshall Square to deliver certain building plans to an engineering firm where he spoke with one of the partners who had confirmed that he remembered very well speaking with Lionel Bernstein after his lunch which he took between one and two o’clock in the afternoon. Mr Berrange asked W/O Dirker if he would deny this evidence if the witness was called to give it in court. W/O Dirker admitted that he was not prepared to deny it but said that he had made his own observations which contradicted that evidence.
Mr Berrange told W/O Dirker that the defence had made tests which showed that driving on a week day from this engineering firm in Johannesburg at more than average speed would take approximately 32 or 33 minutes to arrive at Liliesleaf Farm in Rivonia. On top of that, Mr Berrange continued, Lionel Bernstein would tell the court that after having been to the Engineering firm, Lionel Bernstein spent a few minutes in the Central News Agency. Mr Berrange then informed the court that further tests had been made on certain car engines, the details of which he would not bother W/O Dirker with. However, having informed W/O Dirker thusly, Mr Berrange then asked if W/O Dirker was maintain his claim that the engine of this car which was parked in direct sunlight was in fact stone cold.
W/O Dirker confirmed that this was the case but added, for the first time, that it had been an extremely cold winter day when the raid took place and Mr Berrange asked if this now meant that W/O Dirker was conceding that the engine may have gone cold in the space of a few hours. W/O Dirker said that he did not think it was possible for the engine to get that could within three hours. Mr Berrange then said that this meant that Lionel Bernstein had to have been there before one o’clock and could not have spoken with the partner at the engineering firm in his offices after two o’clock. W/O Dirker hesitantly said that this was the case according to the observations he had made.
Mr Berrange then turned to the topic of W/O Dirker’s being sued by Michael Harmel in the Supreme Court in this division, as a result of which Michael Harmel recovered R200.00 damages from W/O Dirker under allegations on two grounds. The first was that W/O Dirker had removed a document from his possession in the streets, which W/O Dirker had no right to do. The second was that thereafter W/O Dirker search Michael Harmel’s person, on the street, without permission to do so. W/O Dirker recalled that the witness called by Michael Harmel in this case was Walter Sisulu, whilst W/O Dirker had called W/O Helburg and W/O Olivier as his witnesses. In this instance the defence of W/O Dirker had argued that he had had reasonable reason to believe that the article found on Michael Harmel was related to some offence and that he had reason to believe that Michael Harmel was concealing some or other articles on his person which were related to an offence.
W/O Dirker and his co-witnesses had alleged in his defence that Michael Harmel had tried to snatch the article away from the police as W/O Dirker was writing him a receipt for this document he was confiscating. Mr Berrange then read extract from the judgement in this case in which the judge had made the following remarks about W/O Dirker:
It would be necessary to examine the value of the evidence given by Dirker and his two witnesses as well as the probabilities and improbabilities inherent on the facts. I have not gained a very favourable impression of Mr Dirker as a witness. He has been, under cross-examination, consistently inclined to be evasive.
Mr Berrange went on to clarify that it was completely denied by both Michael Harmel and Walter Sisulu that Michael Harmel had ever tried to snatch the documents away from W/O Dirker. W/O Dirker at first claimed that he could not remember and Mr Berrange refused to accept that W/O Dirker had forgotten the main point of this trial and went on to read the following in this regard from the judgement which had been made:
I do not think that nervousness was an affliction on the probabilities of which the plaintiff suffered at the time as though that the whole grabbing of the documents remains unexplained. It may well be asked why, if it did not happen, the police have inserted this enlarged narrative of the events. One can only speculate, that it does not seem to me beyond the bounds of possibility that they felt that this was necessary in order to make more palatable what their testimony reveals immediately thereafter. They have to explain, to render probable, the allegation that immediately after this the plaintiffs were so nervous and so upset that he fumbled with his clothes, or patted his pockets, and behaved in a generally suspicious manner. It is possible that they thought that the simple statement of what happened would not be sufficient unless it is preceded by an occurrence showing the plaintiff’s nervousness and almost irrational behaviour and also putting the plaintiff in an embarrassing situation having just been reprimanded by the police.
W/O Dirker maintained the story which he had told the court during the trail which was that he had searched Michael Harmel in the street because he was patting his pockets suspiciously. Mr Berrange then read further extracts from the judgement relating to W/O Dirker’s evidence and those portions which the judge had found untruthful in particular.
In concluding his cross-examination Mr Berrange noted that he could detect a viciousness in W/O Dirker’s tone when he discussed Walter Sisulu and Michael Harmel but W/O Dirker insisted that he did not feel vicious towards these two men. Although he maintained that Michael Harmel had tried to snatch the documents away from him.
Further cross-examination by Mr Coaker.
Mr Coaker began by informing W/O Dirker that he intended to put clearly on the record, at this time, certain things in regard to the Rivonia investigation which W/O Dirker claimed he could not remember. The first of these was the officer who had given James Kantor permission to be on the Liliesleaf premises on 12th July, 1963. W/O Dirker claimed that he first saw James Kantor when he was getting out of his car and spoke to several police officers. Secondly, W/O Dirker did not know who gave permission to Mrs Behrman and Mr Fine to be on the premises and remove the children, nor did he know how these two arrived.
The main issue in contention at this stage was the purported car James Kantor arrived and left in. W/O Dirker couldn’t tell the court the colour or the make of the car he supposedly arrived in aside from the fact that it was an “ordinary motor car”. Mr Coaker told W/O Dirker that James Kantor’s car had been a light cream coloured station wagon and W/O Dirker confirmed that this was not the car he had seen James Kantor arrive at the farm in.
Once again for the purposes of clarity on the record Mr Coaker put a number of suggestions, from what would be said by James Kantor, to W/O Dirker. Mr Coaker suggested that James Kantor had arrived with Dr Fine and Mrs Behrman in the same car because they were not able to obtain any real satisfaction over the telephone about the children and accordingly they had instructed or requested Kantor to accompany them to the spot. W/O Dirker said that that could be so, but it is not what he saw when Kantor go out of his vehicle and spoke to some detectives and members of the force standing about. Mr Coaker continued and put it to W/O Dirker that he had walked up to James Kantor and had personally asked him what he was doing on the premises. W/O Dirker confirmed and Mr Coaker put it to him that at that stage James Kantor had told W/O Dirker that he had come with the relations to remove the children. W/O Dirker denied this.
Mr Coaker continued regardless of W/O Dirker’s denial and put it to him that he then told James Kantor that he was very busy and went back inside the main house. W/O Dirker confirmed this part of Mr Coaker’s suggestion but denied any knowledge of a conversation James Kantor and Dr Fine had had with members of the police in which the feeding of animals and the guarding of the property were discussed. Mr Coaker suggested that it was only during this discussion that James Kantor asked permission to feed the chickens and W/O Dirker reluctantly gave his permission. W/O Dirker maintained that the need to feed the dogs and chickens was the sole purpose James Kantor had told him he had come to the premises as communicated to W/O Dirker by James Kantor upon his arrival at the Farm.
Mr Coaker asked W/O Dirker if he would have allowed anybody to enter the premises without a reasonable request and W/O Dirker said that he would not have done so. Mr Coaker then asked if a person had come and said that they were there to pick peaches, would W/O Dirker have let them in. W/O Dirker said that he would have allowed them to come onto the premises but he would have watched them closely and he would not have allowed a person wanting to come and, for example, tune a piano or mend a clock. Mr Coaker put it to W/O Dirker that the only reason he allowed James Kantor on the premises that day was because he was there on attorney’s business. W/O Dirker said that this was not the case and he had given James Kantor permission to stay and feed the chickens because he knew James Kantor.
W/O Dirker estimated that James Kantor had been on the premises for about an hour and Mr Coaker asked what James Kantor had been doing as the feeding of the chickens only took a few minutes. W/O Dirker said that because he was busy conducting various searches when he was watching James Kantor closely but he had made no attempt to watch Dr Fine closely.
Re-examination by Dr Yutar.
Under re-examination W/O Dirker said that he did not know the identity of the person who is said to have helped James Kantor with the mealies used to feed the chickens. Judge De Wet asked if W/O Dirker had made any investigations into this to which W/O Dirker replied that he had not. W/O Dirker added that there were 15 detective present on the premises that day and he noticed that James Kantor was very friendly with the police. W/O Dirker confirmed for Dr Yutar that, as far as he knew, none of the persons who had fled the country had done so with an exit permit.
In closing Dr Yutar read two extracts from the Judgement handed down in the case in which Michael Harmel had sued W/O Dirker. These comments were ones which reaffirmed the value of testimonies given by W/O Dirker and his witnesses and which argued that W/O Dirker had had reasonable belief for the course of action he pursued in regard to the search of Michael Harmel and the seizing of documents from him.
No further cross-examination.
Sources
Dictabelts: (Vol.52/9A/21d) (Vol.52/9A/22d) (Vol.52/9A/23d) (Vol.52/9A/24d) (Vol.52/9A/25d) (Vol.52/9B/26d) (Vol.52/9B/27d).
Percy Yutar Papers:
Handwritten notes from the prosecution for 2nd March, 1964 (Ms.385/36/7).
Wits Historical Papers:
O – O50 Notes of State Witnesses evidence (AD1844.A10).
Key Words
Key State Witness, W/O Dirker, Rivonia Raid, Travallyn Raid, Seized Documents, Liliesleaf Farm, Lionel Bernstein, James Kantor, Michael Harmel, Walter Sisulu, Fashioning Evidence.
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