Bullied by defence lawyers and still loyal to many of the high-ranking accused, Malan trial witness JP Opperman is going through hell on earth in court, writes Eddie Koch
THERE is a courtroom axiom that says the cross-examiner who relies on intimidation instead of intellect probably lacks the factual information to expose flaws in the testimony of a key witness.
If that school of legal pugilism is correct then things may not be going very well for the seven defence teams who have crammed over the last fortnight into the Durban Supreme Court for the Magnus Malan murder trial.
Consider the following extracts from the cross examination of JP Opperman, a former military major who has described how some of his superiors in the dock approved of the operation that led to 13 civilians being slaughtered at KwaMakutha in 1991.
The assault this week was led by a pair of Maritzes, Mike and Sam (the latter famous for defending the police at the Harms Commission).
Mike Maritz, leading one of the seven defence teams, asks the witness to examine gruesome pictures of women and children who were allegedly gunned down by an Inkatha hitsquad he helped train in the Caprivi Strip.
Maritz: “Look nicely at those pictures Mr Opperman. It is your handiwork.”
Opperman: “I gave the orders for the operation, that is right.”
Maritz: “You … jump like a baboon from branch to branch (to back the advocate’s claim that the witness is being evasive).”
Earlier in the day Maritz asks Opperman why he chose to present his evidence-in-chief in English. Is he “one of those” who has chosen to deny his cultural heritage?
Opperman: “No. Not at all your honour. I still speak Afrikaans to my son.”
Maritz: “Why then does an Afrikaner testify in English that is not his mother language?”
The court record is littered with similar strategies.
On the first day of the case, Maritz tells the court his briefcase was stolen from his hotel and suggests members of the Investigative Task Unit probing the massacre are responsible.
Two days later, soon after Opperman begins to give evidence, another defence lawyer objects that the witness’s bodyguard is sitting close enough to read the notes he is taking about the testimony.
The next day the defence complains that Opperman is being guarded by members of the ITU and this could be used to gain access to the witness and exercise unfair influence over him.
Later in the cross-examination another of the defence counsel, Sam Maritz, asks the witness the reason for carrying out the operation.
“To stuff up the ANC.”
Maritz instructs him to “stop using coarse language” in the courtroom.
“Yes, your honour.”
Experts in the art of courtroom pugilism told the Mail & Guardian there is an accepted level of badgering in South African courts that is frequently used to break down the confidence of a witness, question his moral character and get on record as many indications as possible that he lacks credibility.
“But there are rules against gratuitous abuse. Witnesses are entitled to courtesy and their representatives are entitled to object if they don’t get it,” said one advocate.
“It looks plainly as if they are trying to intimidate this one. What this often does is show clumsiness. It is unnecessary and can indicate their effort to expose flaws in the evidence is not well-grounded in fact.”
Judge Hugo occasionally puts a stop to it. Referring to the defence’s antics around briefcases and bodyguards, he refers to “a paranoia that is creeping into the case”. Later he assures Opperman that he can use any language that he feels is needed to answer.
KwaZulu-Natal Attorney General Tim McNally sits in the far corner and, abiding by the haughtiness that has become his trademark, generally says nothing. He chooses not to object, seemingly to show confidence in the witness’s own ability and credibility.
Judging by the nudging and sneering that takes place in the dock, some of the accused think differently. After three days in the dock Opperman is pale. Sometimes his voice falters. They clearly derive some satisfaction from watching the man who helped put them in court experience what he describes as being like “walking barefoot through hell”.
That admission appears to reinforce the defence lawyers’ chosen method. They have identified something in this witness that makes him different from many of the others – — renegade police captain Dirk Coetzee, army colonel Gerry Hugo, IFP hitman Daluxolo Luthuli, Vlakplaas operative Chappie Kloppers — who have defected from the security forces to give evidence about their involvement in political murder.
Opperman declines to give interviews to journalists or use the media to win support for his case. He refuses to reveal details about third force activities outside of Operation Marion, the programme to give Inkatha a hitsquad capacity that could be used against the ANC, that Malan and his fellow suspects are charged with conspiring to set up.
He clearly still believes there was much justification for Marion and the KwaMakutha attack. Apart from the fact that a piece of paper announcing this was “Chapter One, Verse One” never got left at the scene — and that 13 civilians instead of the target, Victor Ntuli, were killed — the operation was a “success”.
And Opperman remains extraordinarily loyal, even deferential, towards the colonels, brigadiers and generals who stare him down in the stand. That is probably why he refers to members of their defence counsel as “your honour” even as they berate him.
It is these qualities (one newspaper described Opperman as a naughty schoolboy in the corner of a classroom) that the military’s lawyers exploit to the full. Mike Maritz, at an early stage of the grilling, demands to know why he won’t make eye contact with the accused. “I have respect for those people. Some of my best friends are sitting there.”
When the trial adjourned for the week on Wednesday, Opperman appeared to have regained some composure and stood his ground more firmly against a barrage from Sam Maritz. But Malan’s lawyers may have strategised they are dealing with a fragile and lonely man. If they subscribe to the cross-examiner’s doctrine that favours finesse over force, they have abandoned it this time.
The next two weeks will tell if their batter- into-submission approach — somehow fitting for people who are defending men implicated in the dirty tricks era of apartheid — will work in favour of the nineteen men who sit in the dock of what could be the most important trial in South African history.