Testimony of Lionel ("Rusty") Bernstein, defendant
Cross-examination by Percy Yutar:
Yutar: Were you [ever] a member of the Communist Party?
Yutar: Did you remain a member of the illegal Communist Party?
[Bernstein declined to answer, on the grounds that to do so might incriminate him.]
Yutar: Who was the Secretary General of the Communist Party?
[Bernstein refused to answer.]
Yutar: Have you ever accused the State of coaching its witnesses?
Bernstein: I possibly have said that, sir.
Yutar: In this case?
Bernstein: Yes, possibly.
Yutar: Have you accused the police in this case of acting improperly?
Bernstein: I can’t recall if I have, sir. But I think it is possible.
Yutar: What grounds have you for saying that the police in this case
have acted improperly?
Bernstein: Well, my Lord, I can only testify to the testimony of one police witness, who himself said here under oath that when you have a 90-day detainee and you want to get a statement out of him, you tell him what you know of the facts, and then he confirms them.
Yutar: And he confirms it?
Bernstein: Well, he says this is the only way you can get a statement out of a detainee—when you tell him what you know, and then you put it to him like that.
Yutar: And if the detainee denies it are you suggesting then that the police force him to agree?
Bernstein: No, they just keep badgering him.
Yutar: Until he agrees?
Bernstein: Possibly until he agrees. Or possibly they give up at some stage.
Yutar: You say that you might have said that the State coaches witnesses?
Bernstein: I might have.
Yutar: That is a reflection on the State Prosecutor?
Bernstein: I am afraid so, sir.
Yutar: Have you any evidence to support that wicked suggestion?
Bernstein: My Lord, we did have an incident here in court. [Addressing Justice de Wet:] I don’t know if I am forced to deal with this question, sir.
Yutar: It affects your credibility.
Bernstein: Well, I would like his Lordship to tell me if this is all strictly relevant to the case.
Mr. Justice de Wet: It is a relevant question, Mr. Bernstein. You can answer it.
Bernstein: Well, my Lord, we did have one case of a witness who testified here on Friday afternoon and who went away for the weekend, and who came back on Monday morning, was asked precisely the same question he had been asked on Friday afternoon, and he gave different answers. From which I deduce that some coaching had taken place over the weekend.
Yutar: That was the witness we were having a certain measure of difficulty with the interpreter?
Bernstein: That is so.
Yutar: But you don’t ascribe it then to the difficulty of interpretation. You say directly that the witness was coached?
Bernstein: Well that is my deduction.
Yutar: Did you ever say—’Apart from police evidence and documents, all the substantial witnesses other than people who gave purely technical evidence about, for example, who bought a particular car—all the substantial witnesses have been detainees who made statements under pressure and while subject to detention and solitary confinement, and subject certainly to threats of either indefinite detention or prosecution, or both.’ Did you make that statement?
Bernstein: Yes, I did, sir.
Yutar: Is it true or false?
Bernstein: I think it is probably true, sir.
Yutar: We have Cyril Davids. He was cross-examined. But it was never suggested to him that he was forced to give the evidence he gave.
Yutar: Now we come to Essop Suliman, and he in effect spoke about the conveyance of over 300 recruits across the border. That has been accepted by the defense.
Bernstein: I don’t think a word of what Essop Suliman said has been accepted by anybody, sir.
Yutar: In fact has it not been admitted by your co-accused that recruits were conveyed across the border?
Bernstein: Yes, sir. But I don’t think the dates, the arrangements, the payment or anything else testified to by Essop were accepted.
Yutar: You remember Harry Bmbani, that is, a recruit who is serving a two-year sentence. It was never suggested to him that he was either coached by the State Prosecutor or forced by the police to give false evidence.
Bernstein: That may be so. I can’t be sure.
Mr. Berrange (defense attorney): My Lord, my learned friend is completely wrong. I don’t know where he gets this evidence from. In fact, it was suggested that he changed his evidence three times.
Yutar: Do you remember the witness Peter Mbomvu who testified to the commission of two acts of sabotage? Do you think he was forced to say that he committed two acts of sabotage and not one?
Bernstein: My Lord, he was either forced, or induced, or he was persuaded by some fantasy. But it was shown in court that he had made three different statements about the same subject, all under oath, at different times.
Yutar: So the police must have been awfully inefficient in forcing him to make one statement—they got three different statements out of him.
Bernstein: Yes. And they led all three in evidence here....
Yutar [reading a passage of the letter:] ‘The whole thing disgusts me, the unprincipled timidity of people, and even more the unprincipled willingness, eagerness of the authority to use them’.
Yutar: You adhere to that?
Bernstein: I adhere to that.
Yutar: That is the condemnation of course, not only of the investigating officer, but also of the State Prosecutor in this case.
Bernstein: A condemnation of the State, sir, which has provided facilities for witnesses’ statements to be taken from them under duress....
Yutar: [reading from a letter:] ‘. . . so this is now patently the basis of the operations. You arrest the man, hold him in solitary confinement, tell him that he will be held indefinitely unless he answers satisfactorily, that is the key word, and tell him what he knows are the right facts, and just keep at it until he answers satisfactorily. . .‘. Is that a correct description of what occurred in this case?’
Bernstein: I think it is a correct description of what occurs to a 90-day detainee.
Yutar: I am talking about witnesses in this case.
Bernstein: Those who are 90-day detainees, I think it is very likely what happened.
Yutar: And then you go on to say—you pay me this compliment— ‘Here too Vernon did a great job exposing this very patent, or blatant coaching of witnesses’. How dare you say that if you have nothing to support it?
Bernstein: My Lord, I have explained the case on which I think it is an adequate statement....