Testimony
of Lionel ("Rusty") Bernstein, defendant
Cross-examination by Percy Yutar:
Yutar: Were you [ever] a
member of the Communist Party?
Bernstein: Yes...
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....
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