From the book: No.46 - Steve Biko by Hilda Bernstein, 1978, South Africa

After receiving his head injury, Biko began to die. According to Professor Proctor, 'treatment might have prevented his death from oedema". Accord to Professor lan Simpson, Biko passed the point of no return within six to eight hours after sustaining his head injury.

It was thus important to establish from the doctors who saw Biko between 7 September and his death on 12 September why no effective medical treatment was given. But, like the police, the doctors giving evidence presented testimony that was neither disinterested nor frank.

Witness: Dr. Ivor Lang, District Surgeon, Port Elizabeth.

Since the death of Biko he had made a number of statements. At first simply that at the request of Col. Goosen he had examined Biko on 7 September in the offices of the Security Police about 12 noon. He had signed the following statement:

This is to certify that I have examined Steve Biko as a result of a request from Col. Goosen of the Security Police who complained that the above mentioned would not speak.

I have found no evidence of any abnormality or pathology on detainee. In a later affidavit, signed on 1 October, he said that the time 12 incorrect and that he had in fact examined Mr. Biko at 9.20 a.m. In court Lang continued: Later that day, 7 September, Col. Goosen had expresses that Biko might have suffered a stroke since he was not eating ‘nor to speak and was not using his limbs'.

Lang had agreed to re-examine Biko later in the morning and had requested the Chief District Surgeon, Dr. B. J. Tucker, to examine with him.

This examination started at 12.45 p.m. in the Security Police offices. Lang I carried out a lengthy and complete examination of Biko who was lying in an office on a number of blankets. He was able to give me a good account of himself and did not complain of any symptoms other than weakness of his limbs and lacked the desire to eat.

I informed Col. Goosen I could find no organic cause for N Biko's apparent weakness and I was satisfied that he had not suffered a stroke.

The next morning, 8 September, Col. Goosen expressed concern over Biko's condition since he had not passed urine during the previous 24 hours and he had refused all offers of food.

He had re-examined Biko, and noted no material changes in his physical condition save for the facts set out in his medical report.

Long There was certainly no distension of his bladder and no indication that he was suffering from retention of urine. At the conclusion of this examination Biko complained of thirst whereupon Warrant Officer Coetzee was asked to give him water.

In view of our observations it was decided that he be transferred to the Sydenham Prison Hospital where a further examination could be carried out by a specialist physician and this was imme­diately agreed to by Col. Goosen.

Kentridge The certificate written after your examination on 7 September said you found no evidence of any abnormality or pathology on Biko. Lang said he had been asked to make out a certificate at Col. Goosen's request. He presumed it was 'merely for record purposes'.

Kentridge Didn't it occur to you that if, at some later stage, Biko might appear in court and complain about the way he was treated while in Security Police custody, your medical certificate would be a most important piece of evidence?

Lang Correct.

Lang added that the thought did not occur to him on 7 September. Kentridge In your original certificate for Col. Goosen you only mentioned the fact that Biko 'would not speak' as the reason why a medical examination was ordered. In the report to the pathologist conducting the post mortem, you gave the reason as follows:

'The detainee had refused water and food and displayed a weakness of all four limbs and it was feared that he had suffered a stroke'. In your certificate you only said he would not speak. Why were the other matters not in your certificate?

Lang I cannot explain it. It is inexplicable.

Kentridge Being wanted for record purposes wasn't it important to have a complete and correct record?

Lang In retrospect, yes.

Ken tridge You wrote: 'I have found no evidence of any abnormality or pathology on the detainee'.

Lang replied that in fact he had found a small laceration on Biko's lip, a bruise near his second rib, two swollen hands, swollen feet and ankles.

Kentridge None of this is mentioned in your certificate. Wouldn't a person who later read your certificate have taken it to mean there was no sign of injury on Biko””so that part was also highly incorrect?

Lang Yes, it was.

Kentridge It may have been that Biko would one day have said he had a cut, bruised, swollen lip and he would have been called a liar?

Lang I see that now.

Kentridge Isn't that why Col. Goosen wanted the certificate?

Lang I don't think so.

In his examination of 7 September, Lang noticed Biko's speech was slurred, which he attributed to the lip injury, and that he had a staggering gait which he attributed to lack of co-operation.

Kentridge You were aware of Biko's history””that he had studied medicine for four years, and later studied commerce and law?

Lang I was initially informed of these facts by Col. Goosen, which were later confirmed by Biko himself.

Kentridge Isn't it fairly clear that Col. Goosen stressed the fact that Biko had been a medical student as a hint to you he might be shamming?

Lang It is a probability.

Kentridge Did you question Biko?

Lang Yes.

Kentridge Did you ask how he got the cut on his lip and the bruises on his chest?

Lang No.

Kentridge Why not?

Lang Because I was told by Col. Goosen that Biko had gone into a rage and had attempted to assault an officer with a chair and had to be restrained.

He had assumed that the lip injury and the bruises had been sustained which the police were trying to control Biko. Biko had not complained of being injured or assaulted.

Kentridge Why did you make an assumption?

Lang I think if Biko had not been injured as a result of restraint, Col. Goosen would have told me.

Kentridge Would he? Had Goosen been present?

Lang Col. Goosen was present for about half the examination.

Kentridge Why did you not ask Biko for his version of the event while Col, Goosen was out of the room?

Lang I assumed Biko would have told me himself.

Kentridge Were you not reluctant to embarrass Col. Goosen?

Lang No.

Kentridge Didn't the possibility of a head injury occur to you? Lang Yes, immediately. The moment I saw the lip injury this was uppermost in my mind.

Kentridge Why didn't you ask any question about it?

Lang I can't answer that.

Kentridge Col. Goosen never said anything to you to suggest that Biko had a bump on his head?

Lang No. No Security Police officer ever mentioned the possibility. My examination was to a certain extent dependent on the history of the patient given to me. If I had not been told a full and correct history I could well have been put off the track.

Kentridge Did you order the leg irons not to be replaced due to the swelling on Biko's ankle?

Lang said he had not thought of it at the time but in retrospect would have recommended it.

Kentridge On 7 September did you think Mr. Biko was malingering?

Lang said his findings as well as the history he had been given on Biko led to that conclusion. He had been told Biko could not speak and yet he had held a conversation with him.

Kentridge What sort of feigning is it that stops the moment a doctor comes in and in the presence of a colonel? Isn't it odd?

Lang It is odd.

Kentridge May I suggest that the suggestion of feigning was very largely derived from Col. Goosen?

Lang It contributed to it.

Lang believed Biko's slurred speech could definitely be attributed to the lip injury. He had not prescribed any treatment for it because the cut was 'extremely superficial'.

He attributed Biko's staggering (ataxic) gait to the fact that he had been manacled and his ankles were swollen.

Kentridge Why in your report to the pathologist did you attribute Biko's staggering to 'a lack of co-operation'. A person reading this would understand it as a deliberate failure to co-operate. You agree that this is misleading?

Lang Yes, I agree.

Kentridge A report made by Col. Goosen and Maj. Snyman said that Biko's speech was not merely slurred but incoherent?

Lang 'Thick speech' was a more adequate description than the phrase 'slurred speech'.

Kentridge And after the medical examination Mr. Biko was left lying on his mat in the office in chains?

Lang I had examined Biko very carefully and found nothing 'emphatic­ally' wrong with him.

Kentridge Why did you not order Biko to be kept in bed, in view of the symp­toms you had noticed?

Dr. Lang replied that he had told Col. Goosen that if Mr. Biko's condition persisted he should be called again.

8 September

On the following day, 8 September, Lang was again called by Col. Goosen to examine Biko with the Chief District Surgeon, Dr. Tucker. Biko was coherent.

Kentridge There are many witnesses who have said that after a certain period Biko was incoherent and that they could not make contact with him.

Lang Biko replied clearly when asked his name.

Kentridge said he had been instructed that questioning on that level was not an adequate test of the degree of consciousness or mental ability.

Kentridge The fact that Mr. Biko was in chains was not mentioned until your fourth affidavit. Didn't you think it necessary to mention that in your original report?

Lang No. I didn't mention it. Biko was still lying on the mat chained by his one foot. I cannot remember whether Biko was handcuffed,

I was not told that Biko had been violent again.

Before commencing the examination the doctors were told by Col. Goosen I that Biko had not passed urine for 24 hours. They found on examination that his blankets were wet with urine and that they were smelling.

Kentridge Was nothing done about that?

Lang Not while we were there.

Kentridge Biko might have spent some time under the wet blanket?

Lang He might have.

At the end of that examination Biko had asked for water because he was thirsty and had been given it by a member of the security staff.

He did not accept Col. Goosen's story that Biko had not passed urine, because he had wet his bed. There was no sign of dehydration about Biko.

Dr. Lang went on to speak of a second examination of Biko on 8 September when Biko had complained of vague pains in his head and back.

Dr. Tucker said he had found a doubtful 'possible extensor plantar reflex'.

This meant that when stroked on the sole of his foot, instead of his toes curling inwards, there was a sign that his big toe might be turning upwards. Dr. Tucker then said they wanted to take Biko to hospital in order that a specialist could examine him.

Kentridge At this stage did you think he was shamming?

Lang I couldn't understand why he had passed urine in the bed only conclusion was that he couldn't get up. I asked him and he couldn't give me a satisfactory answer.

Kentridge What was done when Biko complained of a pain in his head Lang Biko was very vague about this.

Kentridge Did you still think of the possibility of his having a head injury?

Lang It was in the back of my mind.

Kentridge It might have been at the back of your mind but it was not forefront of your affidavit.

Kentridge returned to Goosen's suggestion that Biko was feigning. Kentridge Had Col. Goosen put you under the impression that during Biko's last period of detention he had manifested the same symptoms? If this were false, would he not have been seriously misleading the medical practitioners?

Lang agreed. Had he not been given the information about Biko's previous behaviour in detention his approach to his diagnosis might have been different: it might not have led to the conclusion that Biko was shamming. On 7 September he examined Mr. Biko's head very carefully.

Kentridge It seems inconceivable that you didn't see the injury.

Lang I did not see it. I have no cause to hide the fact. I can offer no explanation. I examined his pupils and noticed a swelling on his upper lip but I saw no injury.

Had Biko looked the way he had looked in the photograph with the scab he would have seen it.

Kentridge Isn't it perhaps the case that just as you omitted to mention in your report the chest injury and the lip injury you omitted the head injury?

Lang I saw the lip injury and the chest injury. I can assure you that the chest injury was not that obvious.

Here even Mr. van Rooyen appeared to feel that Lang's evidence was verging on the incredible, and intervened in his support:

Van Rooyen I suppose you have been lying awake at nights, worrying since Biko's death?

Lang Very many nights.

Van Rooyen On the morning of the 7th when you were called in did Col. Goosen make it clear that he had been concerned about Biko's health?

Lang This is correct. Col. Goosen had stressed his concern.

Van Rooyen Did he say he would give his right arm for the life of this detainee?

Lang I heard this at the time. It was quite clear that Col. Goosen was concerned about Biko's good health.

The second doctor to give evidence was Dr. Lang's senior colleague. Witness:

Dr. Benjamin Tucker, Chief District Surgeon, Port Elizabeth

At his examination on 8 September, Tucker said he did not think Biko was incontinent but that because of his position he had been unable to move.

Kentridge Because he was chained up? Did you call Col. Goosen's attention to this?

Tucker No. Col. Goosen had said Biko hadn't asked to go to the toilet.

Kentridge Wasn't he your patient at this stage?

Tucker Yes.

Kentridge Were you not interested why your patient, a grown man, should have wet his bed?

Tucker I was.

Kentridge Why didn't you ask him?

Tucker I cannot answer.

Kentridge There is only one answer, you knew he couldn't answer you.

Tucker I'm afraid that is incorrect.

Kentridge Did you ask Biko how he cut his lip?

Tucker I did not.

Kentridge What sort of doctor is it who doesn't ask a patient how he got his injury?

Tucker Col. Goosen told me that Biko became aggressive, had to be restrained and I assumed that the lip injury was the result of this restraint.

Kentridge You assumed it?

Tucker I accepted that in the restraint there must have been a struggle and that Biko by some means could have injured his lip. Kentridge By what means?

Tucker I don't know what means were used.

Kentridge Why didn't you ask?

Tucker Because this was an assumption I thought I was entitled to make.

Kentridge What right have you got to make any assumption? Why didn't you ask him?

Reply inaudible.

Kentridge In your affidavit there is a statement that there were abrasions around both wrists. The affidavit was a copy of a medical report and I would have thought you had a duty in the medical report to note any possible reason for the abrasions. Why was there no explanation for the abrasions?

Tucker I did not think it was necessary.

Kentridge Why didn't you say he was handcuffed and his leg shackled to a grille?

Tucker replied that he had done this in his second affidavit. Biko's hands were, free and he was only shackled around his right ankle. He accepted that the abrasions on the wrists were due to previous handcuffs.

Kentridge You didn't mention it in your medical report for fear of embarras­sing the Security Branch?

Tucker This is an assumption I just cannot accept.

He agreed that he had not made mention in the medical report of abrasions of Biko's feet and ankle.

Had he left them out because any mention of these abrasions would have pointed to the fact that Mr. Biko had been manacled?

Tucker It was an error.

Kentridge Supposing Biko had lived and had come to court and complained he had been chained by his ankle, your report would have been produced and it would have been put to him that he could not have been because otherwise you would have noticed it?

Tucker If the question had been asked.

Kentridge Your statement says that at no time did Biko mention that he had been assaulted or injured. You were aware that Biko had a lip injury. Did you not know about the chest injury as well? Tucker said he did not but that Dr. Lang had mentioned the bruise on the chest. He could not find it.

Kentridge What is the value of saying Biko had not been injured in any way when you can see an injury on him?

Tucker He had not volunteered this information to me.

Kentridge You didn't see fit to ask him? You just made an assumption?

Tucker Yes. Tucker added that he had asked him whether he had any complaints and Biko said he had a headache and a pain in the back. He had asked no other questions.

Kentridge You asked him one question and you got one answer. Was that the sum total of the questions?

Tucker Yes. He added that he could not recall Dr. Lang asking any more questions.

Kentridge On that basis you say in your affidavit: 'He was alert but answered questions in an indistinct manner'. This is a misleading statement.

Tucker I am sorry.

Kentridge It is not merely misleading, it is a plainly false statement. Tucker I cannot say that.

Kentridge Well, I can. I will tell you why. He didn't answer questions. At most he answered one question. And secondly, on the basis of that single question and answer you had no right to say that mentally he was alert.

The questioning moved on to the subject of brain damage. Tucker stated that the up going big toe on the right side was not clear but might have indicated a neurological problem.

Kentridge You say you had in mind the possibility of a head injury?

Tucker Yes.

Kentridge If someone said this man had bumped his head against the wall, would you have taken a different view?

Tucker No.

Kentridge If you had the suspicion that he had some neurological damage and you knew he was in some sort of violent incident, would you not have asked whether he had received a blow on the head?

Reply inaudible.

Kentridge I am suggesting to you that the reason you did not ask was because you were dealing with the Security Police.

Tucker No.

Mr. van Rooyen at this stage objected strongly to Kentridge's statement.

Kentridge It is a question, not a statement. Why don't you ask a question in that situation?

Tucker I would say no you don't.

Tucker's admission caused noisy murmuring in the packed court room. The Magistrate, Mr. Prins, called an adjournment for five minutes. When the Court re-assembled. Tucker attempted to retract his statement.

Tucker I would like to rephrase my reply.

Kentridge I thought you were agreeing with me.

Tucker My answer to the question is: No, it is not so. Questions asked by the district surgeon are not banned in the security offices.

Kentridge I don't suggest they are banned. I suggest that you personally did not ask the question.

Tucker I can only object strongly. At all times I have always had all the co-operation necessary from the Security Police.

Kentridge You used the word 'co-operation'. What co-operation? What does co-operation mean?

Tucker You used it. My meaning of the word is that when we require information and when we require things to be done, then they are done.

Kentridge You deny you have any inhibitions asking them questions even if they embarrass them?

Tucker Yes.

Kentridge Why did you not ask whether Biko got a bump on the head? Did Goosen at no stage say to you that this man had received a bump on his head?

Tucker No.

Kentridge Nor did any other officer say that to you?

Tucker No.

Kentridge Did anyone suggest to you that Biko had received a bump on the head?

Tucker Gen. Kleinhaus.

Kentridge When?

Tucker At the time of the interview [on 19 October].

Kentridge That was the first time it was suggested to you?

Tucker Also when I spoke to Prof. Loubser the Chief State Pathologist in Pretoria, on the following morning, probably the 13 September.

Kentridge When you last saw Biko was he still on the same mat under a wet blanket with the same trousers on?

Tucker Yes. I gave no orders in that regard.

Kentridge Didn't you think of the possibility that the man had suffered a head injury?

T ucker It crossed my mind.

Kentridge Didn't you ask Biko any questions about it?

Tucker No.

Kentridge Didn't you ask Col. Goosen any questions about it?

Tucker No. I thought the injury to his lip might have caused a brain injury.

Kentridge Dr. Tucker, if you thought the lip injury was evidence of a head injury, oughtn't you to have gone into it further?

Tucker From whom? From Col. Goosen? I don't think I can reply. There was this history of restraint and the injury could have come from that period.

Kentridge Why did you not ask the obvious question, whether the man

received a bump on the head?

Tucker I did not ask it and that is all I could say.

Prins Did you ask Biko?

Tucker No.

Kentridge Was it not possible you were reluctant to embarrass Goosen?

Tucker No.

Kentridge Either from reading about it or from your own experience have you no knowledge that the police assault people in custody?

Tucker I have. (Further answer inaudible).

Kentridge But on that occasion you did not ask?

Tucker No, I did not. Where persons are brought to me for examination my report is completed on a special form. This is all I am required to do. The history was given to Dr. Lang ... the restraint could have resulted in the damage.

Kentridge You accept it as a fact, what Goosen told you?

Tucker May I put it this way? If I am called to see a patient and he has a cut on his head, then I am interested in treating him and not in how he got the cut.

Kentridge In the interest in treating the patient, is it not also essential and wise to know what caused it?

Tucker There was the history that Biko had become hysterical and that he had to be restrained . . .

Kentridge Why should it not have been caused by the brain injury? Tucker Dr. Lang said there were no signs of bruises around the head.

Kentridge Let me start again. You are a professional man and you are not doing yourself justice. Are you not aware that sometimes there are cases of people assaulted in custody? Did you not think about it?

Tucker No.

Dr. Tucker was then cross-examined by Van Rooyen.

Van Rooyen The man was complaining of various things, there was also

Goosen's worry about the man and his condition of health, and you felt it would be best to have him examined by a specialist?

Tucker That is correct.

Van Rooyen In case you were missing something, let's have a specialist look at it?

Tucker Well, Your Worship, the two of us had found different signs and we wanted another opinion.

Van Rooyen Yes, and therefore you suggested that in order to get a specialist's opinion it would be advisable to have him taken to a hospital where he could be observed and be examined?

Tucker That is correct.

Van Rooyen It wasn't as if you had an ill man on your hands, doctor? Obviously ill?

Tucker Not at that particular stage.

Van Rooyen In your mind you at no time even thought that you had here on your hands a sick man?

Tucker Not in the slightest.

At this stage. Prof. Gordon, one of the assessors, intervened.

Gordon You know, this is surprising. I am sorry to interrupt you, but how can you say that you did not have on your hands a sick man, and yet you say that it is necessary to have a consultant to see him at a hospital? It just does not make sense to me. If your man is not sick, then you don't need a hospital, and you don't need a specialist.

I am trying to work out what your reasoning process was. If your reasoning process was, we don't even have a sick man on our hands Col. Goosen, don't worry about it. But you don't do that. You say, we don't even have a sick man on our hands, but none­theless we will have a consultant's opinion and we will try and get that in a hospital.

Tucker Yes, and we would feel far happier.

Gordon You see, because it is nonsense to talk this way. I am sorry to put it to you like that. . . you are a doctor ... It is just that it is unimpressive to me.

Like Lang, Tucker virtually admitted that he had simply followed security police instructions when examining Biko and had ordered no treatment; a' though it was agreed that Biko be transferred to Sydenham Prison for further investigation.

This took place on 8 September.

Witness: Dr. Lang

During the afternoon of 8 September, Dr. Hersch, consultant contacted and agreed to examine Biko in consultation with Lang evening.

Biko was moved to Sydenham Prison for the examination. About 9.45 p.m. Dr. Hersch examined Biko in Lang's presence at the Syden­ham Prison and it was agreed that a lumbar puncture be performed the next morning to exclude the possibility of cerebral haemorrhage or other cerebral disease.

von Lieres You were unable to make a diagnosis and therefore you couldn't have told Col. Goosen Mr. Biko was a sick man?

Lang No I didn't.

Lieres Would Col. Goosen have allowed Biko to be hospitalizes if you had reported Biko to be very ill?

Dr. Lang replied that this was a difficult question to answer. He got the impression that under no circumstances would Biko be allowed to go into hospital.

von Lieres What would the situation have been if a definite diagnosis had been made?

Lang believed that if he had told Col. Goosen there was positive information that Biko was definitely ill, he would have been sent to hospital.

9 September

A lumbar puncture was performed by Dr. Hersch on the morning of 9 September. About 9.45 a.m. Lang visited Biko.

Lang He was comfortable and did not complain of any pain and was in possession of all his faculties. I received a report from Warder Shehab to the effect that Biko had eaten half a plate of food and that he was found in a bath of water during the early hours of the morning and that all his clothing was soaking wet.

Shortly after this I telephoned Dr. Hersch who informed me that the lumbar puncture was performed with little difficulty but that the cerebro-spinal fluid, although not under pressure, was bloodstained. Furthermore, there was no change in Biko's physical condition.

10 September

On the morning of 10 September, Dr. Lang again consulted Dr. Hersch on the phone and the report of the analysis of cerebral haemorrhage was discussed.

Because of the presence of blood Dr. Hersch was of the opinion that a neuro-surgeon be consulted and if necessary an X-ray of the skull be obtained. Lang gave his consent.

Shortly after this Mr. R. Keeley, a neuro-surgeon, telephoned him and Biko's clinical state was discussed at length. Keeley was of the opinion that the findings to date were not evidence of cerebral haemorrhage or for that matter any other brain damage, that an X-ray would not be of much value, and that it was his opinion that all that was necessary at this stage would be observation. 'Keeley agreed that we could transfer him to the custody of the Security Police provided that he was examined daily by a doctor'.

Lang advised Col. Goosen of this. It was agreed that Biko would be moved from Sydenham Prison the next morning.

At 3.30 p.m. he again visited Biko and found him comfortable with no com­plaints and no change in his physical condition. 'I received a report that he had flung the plate of food off the bed on to the floor with his hands at midday. I informed Biko of the findings of the various medical practitioners and that he was to be moved from Sydenham Prison the following morning'.

In cross-examination Kentridge inquired about the medical examination:

Kentridge You were present when the plantar reflex was tested. You reported wrongly that it was tested on the right. It should have been on the left?

Lang Yes.

Kentridge Yet you say in your bed letter that both Dr. Hersch and you could find no pathology. That was false?

Lang Yes.

Kentridge And that the lumbar puncture was normal. That was false?

Lang No, it was incorrect.

Kentridge It was false to say that no pathology could be found?

Lang I gave an incorrect statement in the bed letter. There was an omission of one word. It should have read gross pathology. This was the essence of what I told Biko. That there was no indication of gross pathology.

Kentridge This was also false. A most significant sign of brain injury had been found.

Lang To my mind the upgoing toe was only one of a few.

Kentridge I am going to suggest that it is perfectly clear that you made a false statement to Biko and in your bed letter to get Biko back to the hands of the police as soon as possible.

Lang I deny that. It was an error on my part.

The same events were also recounted by Dr. Hersch.

Witness: Dr. Colin Hersch, Consultant Physician, Port Elizabeth

On 8 September, Hersch was phoned by Dr. Lang and given the history of Biko. Biko had shown difficulty in talking and had dragged his left leg. Dr. Lang also mentioned the possibility of an upgoing toe on the right foot.

Hersch suspected Biko was shamming. He later also gained the impression from Col. Goosen that Biko might be shamming, although Col. Goosen was keen for him to rule out the possibility of a stroke. At no stage did Col. Goosen mention the possibility that Biko might have had a bump on his head, although he did mention the episode where Biko allegedly threw a chair at an officer and had to be restrained.

Hersch said he got the message that he was dealing with a man who might be feigning and that he was a dangerous man.

Kentridge They didn't leave it to your skill and judgement to report?

Hersch I got that history quite clear. Particularly in neurological cases a wrong history could prejudice the examination.

Hersch claimed that he never noticed the bruise on Biko's head or the scab that was apparent in the post-mortem photograph. 'But in retrospect I have quite a clear picture of him standing with a whitish area over his left eye that I thought was dry saliva or sputum'. He did not think he could have missed an abrasion had there been one.

Kentridge How do you account for the fact that it wasn't seen?

Hersch I really don't know. By the rest of the examination one could al­most have expected it to be there. It fitted in with indications of brain injury that there should have been a lesion there. Dealing with the plantar reflex, Hersch admitted that the upgoing toe on the left side was a significant sign. It showed a great likelihood of organic brain damage. Dr. Lang had observed the upgoing toe as well. The upgoing toe changed the whole picture of Biko's condition.

Afterwards he had explained to Col. Goosen that there were positive findings of something wrong with the nervous system. 'I don't remember the actual words made it clear there were positive findings'.

Hersch agreed that Biko's poor co-operation would damage, and denied that he had ever expressed the opinion Biko might be shamming or that he had given Dr. Lang the all clear after the investigation.

The result of the lumbar puncture left any conclusion on Biko's condition 'wide open', according to Hersch. The blood cells could have been due to a brain injury or a bloody tap””blood drawn from blood vessels, not the spinal fluid. But the ease with which a lumbar puncture was performed was a point against the possibility of a bloody tap.

Notwithstanding the fact that he suspected damage on the brain, he did not mention this specifically in his medical report.

Kentridge On the form sent with Biko's spinal fluid to the Institute for Medical Research for testing the name of the patient was made out as Stephen Njelo. Was a false name filled in so the staff at the Institute would not know the patient's real name?

Hersch replied that he did not know who filled in the name on the form. It might have been an orderly at the Sydenham Prison Hospital. 'I don't

Kentridge Isn't it the doctor's responsibility to label the specimen bottle?

Hersch I do not know who did it. A male nurse helped with the lumbar puncture.

Kentridge said he tried to find out from the Institute whether they had done tests on Biko ‘s spinal fluid and at first got a negative reply. He then returned to Hersch's own report.

Kentridge A bed letter written by Dr. Lang on 10 September said that he and Dr. Hersch could find no pathology on Biko and that the lumbar puncture test was normal. This is absolutely wrong on both counts. Dr. Hersch agreed they had found signs of pathology in the up-going toe and that there had been blood cells in the spinal fluid which could have pointed to brain injury. It was compatible with brain damage as well as compatible with a normal lumbar puncture', he said.

Kentridge No doctor could say it was normal because of the presence of the red blood cells in the lumbar puncture fluid. When you were examining Biko did you notice a strange wound on his big toe?

Hersch No.

Kentridge The post-mortem doctors found a small circular vascular wound 3 mm in diameter as though it had been pricked with an object or a pin?

Hersch I did not notice it although I have seen the photograph.

Kentridge Could the wound on the forehead above the left eye have been a substance such as an ointment?

Hersch I don't think so. I would have seen the mark. I was quite sur­prised to see the picture.

Despite the medical indications, no treatment was prescribed for Biko at Sydenham Prison, and on 11 September he was taken back into police custody with the doctors' agreement. His condition was clearly deteriorating. He was visited first by Dr. Tucker.

11 September

Witness: Dr. Tucker

Dr. Tucker stated that Col. Goosen had called him in the afternoon of 11 September because he had been on duty and Col. Goosen had been unable to contact Dr. Lang. He was called in because 'evidently something had happened to Biko'. Col. Goosen told him Biko had collapsed and been found by Sergeant Paul Van Vuuren.

Tucker found Biko still lying on the floor in an apathetic condition. Kentridge All these people found Biko in a serious enough state to alarm them but you found nothing wrong?

Tucker I wouldn't say that.

Kentridge You found froth at the mouth and found that he was hyperven­tilating. What are the possible causes?

Tucker Hysteria, renal failure, bleeding of the brain, epileptic seizure, drowning or lung complaints could cause this. I did a rapid new examination.

Kentridge How rapid?

Tucker About five minutes.

Kentridge Did you test for plantar reflex?

Tucker No.

Kentridge At the previous examination you found a query. How can you say that the nervous system showed no change?

Tucker There was essentially no change.

Biko did not stand up during the examination. Tucker tested his legs for spasticity but not for strength or ataxia.

Kentridge (referring to the photograph taken after Biko's death showing a scab on his forehead). I don't know if you are aware but according to the pathologists the injuries must have been between four and eight days old. It must have been obvious to you as a doctor on Sunday the 11th.

Tucker It must have been there but it was not visible. I examined both Biko's pupils.

Kentridge If you examined his left eye with your torch how could you possibly have missed it?

Tucker The only reason I can give is that it was so insignificant and coloured in the same way as the skin so that I could not distinguish it.

Kentridge Does it not call into question the thoroughness of your examination?

Tucker No. Biko was apathetic.

Kentridge Wasn't it important to establish his level of consciousness?

Tucker There was a definite uninterestedness.

Kentridge Why did you do such a cursory examination?

Tucker I thought I could exclude serious cerebral disease by such an examination. There was no localized sign to indicate to me that any further organic disease was present at the time.

Kentridge To reach your conclusion you had to ignore the level of consciousness, the plantar reflex and the slight weakness of the left limb? How can you say that there was no sign to indicate organic disease? I put it to you that that was a false statement.

Tucker An incorrect statement.

Kentridge Deliberately incorrect?

Tucker It may have been badly worded.

Kentridge I say this was a false statement. Won't you concede that?

Tucker No, I won't.

Kentridge moved on to another area involving Tucker's responsibility as a doctor.

Kentridge You recommended that he should go to a hospital with trained staff and you say Col. Goosen said it was preferable that he should go to a prison hospital. There was no trained staff at the Sydenham Prison Hospital because the only male nurse was on a course and a decision was taken to send Biko to Pretoria. Surely it would have been easier to find a male nurse in Port Elizabeth? Did you argue with Col. Goosen?

I did not consider Biko's condition to be so serious at that time. I did not insist that he should go into another hospital.

Tucker said he knew that Biko was going to Pretoria in a motor vehicle and had not thought this inadvisable. He did not remonstrate about it. He had not known that Biko was going in a Land Rover but had been told that he was going in a Kombi (Volkswagen mini-bus). He knew that Biko was travelling without any medical attention because there was no male nurse available.

Kentridge In your affidavit you said you did not consider that this journey would have any adverse effect. Did you consider his condition satisfactory?

Tucker I did.

Kentridge You were urgently called in on the Sunday afternoon and told that the man had collapsed. You found him still lying on the floor with froth at his mouth which was unexplained?

Tucker Yes.

Kentridge Similarly, he was hyperventilating but you did not know the cause?

Tucker Yes.

Kentridge You found his left arm somewhat weak?

Tucker Yes.

Kentridge You found him apathetic?

Tucker Yes.

Kentridge You knew that the physician who had examined him had found a plantar reflex?

Tucker Yes.

Kentridge Do you say that a man in that condition could be described as being in a satisfactory condition?

Tucker There was a question in my mind about possible shamming apart from the upgoing toe. There were no other localised features to indicate organic disease.

Kentridge I am going to put it to you that in this situation no honest doctor could have advised that Biko's condition was satisfactory.

Tucker In the circumstances, I thought it was.

Prof. Gordon Why didn't you say that unless Biko goes to hospital you would wipe your hands of the whole affair?

Tucker I did not think at that stage that Biko's condition would become serious. There was still the question of the possible shamming.

Kentridge Oh, there was still the possible shamming, was there? Did you think that extensor plantar reflex could be shammed?

Tucker No.

Kentridge Did you think that a man could sham red blood cells in the cere­bral spinal fluid?

Tucker No.

Kentridge In terms of the Hippocratic Oath, to which I take it you subscribe, are not the interests of your patients' paramount?

Tucker Yes.

Kentridge But in this instance, they were subordinated to the interests of security? Is that a fair statement?

Tucker Yes, I didn't know that in this particular situation one could over­ride the decisions made by a responsible police officer.

Dr. Lang corroborated Dr. Tucker's account.

Witness: Dr. Lang

Long At 4.45 on 11 September Dr. Tucker telephoned me to report that he had re-examined the detainee. Because Biko was hyper­ventilating and had not taken any food, I advised that he be transferred to Pretoria Central Prison Hospital either by plane by road.

The next morning, on 12 September, about 9.30 a.m. I asked Major Fischer to advise Pretoria that whoever assumed charge of Biko should immediately communicate with Dr. Tucker or myself in order that they be informed of the clinical findings.

KentridgeAt the time when you advised Col. Goosen that a man could go by road to Pretoria you knew that a lumbar puncture had been done but did not know the results?

Lang Yes.

Kentridge I am going to submit that in that situation no honest doctor could have advised that Biko's condition was satisfactory.

Lang In the circumstances I thought it was.

Kentridge Let us assume a holidaymaker from Pretoria had come to see you in Port Elizabeth about their child who had been acting in a bizarre way. The parents suspected that the child did not want to go back to school, but it showed a plantar reflex, was lying on the floor, had red cells in its spinal fluid, froth at the mouth, was hyperventilating and was weak in the left limbs. Would you have permitted his parents to drive 700 miles to Pretoria?

Lang The circumstances are different. I would have insisted that the child should go into hospital immediately. Here there was an uncertainty.

Kentridge Shouldn't that have made you more careful rather than less careful? Isn't the only difference that in Biko's case Col. Gooses insisted that he do not go into a hospital?

Kentridge I wouldn't say insist. He was averse to the suggestion. Why didn't you stand up for the interests of your patient?

Lang I didn't know that in this particular situation one could override the decisions made by a responsible police officer. Why didn't you say that unless Biko goes to hospital you would wipe your hands of it?

Lang I did not think at that stage that Biko's condition would become so serious. There was still the question of a possible shamming.

Kentridge Did you think the plantar reflex could be feigned?

Lang No.

Kentridge Did you think a man could feign red blood cells in his cerebral spinal fluid?

Lang No.

Kentridge In terms of the Hippocratic Oath are not the interests of your patients paramount?

Lang Yes.

Kentridge But in this instance they were subordinated to the interests of security?

Lang Yes.

Van Rooyen If yesterday it was put to you Biko had only complained about a headache and back pains, that these were his only answers, and you said yes, that would have been wrong. It now appears also that he complained about his limbs and asked for a glass of water.

Lang Yes.

Kentridge This witness said with the utmost clarity that Biko was asked and answered only one question.

Van Rooyen Is it possible for a person with medical knowledge to simulate in a plantar test a movement curve of the toes upwards instead of inwards?

Lang I would say it was possible but I do not know of anybody who has done it. It is not a particularly easy reflex to read and it some­times has to be repeated.

Gordon Have you ever read about it?

Lang No, but I have heard of a case,

Gordon Can you tell us about it?

Lang It involved another witness.

Gordon It will be rather unique if a person can give you a positive extensor reflex. Did you make notes?

Lang No, I did not make notes. I would rather like to change my answer to that. I have no knowledge about it.

This tantalizing exchange went no further, but it left the extraordinary impression that Lang and someone else involved in the case set out to experi­ment whether or not a positive plantar reflex could be deliberately simulated.

Witness: Dr. Hersch

Van Rooyen Nowhere in your report after you knew he had died did you say that you came to a definite conclusion that there was an organic condition.

Hersch No, I did not, but one should have said it.

Van Rooyen You did not say so in your report?

Hersch Because I thought it was self-explanatory. It was not a good report. I had a conversation with Mr. Keeley before I was in con­tact with Dr. Lang. I had no further knowledge of the develop­ments until I heard Biko had died.

Van Rooyen You did not gain the impression that something serious was wrong?

Hersch No, it was serious but not an emergency.

Van Rooyen In your conversation with Mr. Keeley did you suggest brain damage and did Mr. Keeley accept it?

Hersch Yes, he accepted the findings. He agreed there was brain damage.

Kentridge Biko was not taken to a proper hospital.

This was not in our hands. There is no doubt that had he been a private patient he would have been in hospital.

Kentridge Would you have allowed Biko to go to Pretoria in a Land Rover on four cell mats?

Dr. Hersch replied that he would not have been unhappy if Mr. Biko's condition was the same as on examination.

Kentridge If he had collapsed and was in a semi-coma?

Hersch I would never have allowed a patient to go 700 miles by road in this condition.

Witness; Dr. B. Tucker

Dr. Tucker, on the other hand, had breathed a sigh of relief when he had heard that Biko was being taken to Pretoria where he would be under the observation of professional people.

Von Lieres Was Biko given all the care he needed?

T ucker I would say the care he received was adequate.

Gordon Why didn't you bring your influence to bear upon the authorities to ensure that an ambulance, not a Land Rover, transported him?

Tucker Col. Goosen assured me that he would be transported in a comfortable a manner as possible, in a Kombi on mattresses.

Gordon Didn't it occur to you there might well have been an ethical responsibility to argue that if he could not go by air he should have gone by ambulance?

Tucker That is correct. I thought that the mode of transport would amount to that of a quasi-ambulance.

Prins Mr. Biko was transported with four cell mats and a number of blankets. Did you think it would be a shock absorbing bed?

Tucker To a certain extent. A Kombi is far more comfortable to sit and lie in than a Land Rover.

Dr. Tucker was later recalled and questioned about the events following Biko'' death, when the internal police examination was taking place.

Kentridge asked why Dr. Tucker had only made his affidavit on 19 October. Tucker said he was away on leave and when he had returned to Port Elizabeth he was told by Col. Goosen an affidavit was required. His second affidavit was made at the request of Major-General J. F. Kleinhaus, the investigating officer.

Tucker said Gen. Kleinhaus asked whether he had seen any abrasions and whether Biko had mentioned an assault; he also asked him whether Col. Goosen of what had occurred in Room 619 before the first medical examination had informed him.

Kentridge General Kleinhaus simply asked you whether Col. Goosen had told you Biko had been aggressive and attacked a number of his staff?

Dr. Tucker confirmed this.

Kentridge So Gen. Kleinhaus put words into your mouth?

He asked questions and I answered them.

Kentridge It seems a very strange sort of investigation by an investigating officer to do it this way.

Tucker told the Court that he spent about three hours with Gen. Kleinhaus and that Col. Goosen was present at the interview. 'He just listened', he said.

Kentridge This three-hour interview comes out in half a page in your affidavit.

Tucker said there had been a discussion of the photographs taken of Biko and that this had been the first time they had been able to read the report of the post-mortem examination.

Kentridge Were you in Port Elizabeth on 13 September””the day after Biko died?

Tucker I was.

Kentridge Did no police officer come down at that stage and ask you about the case while the trail was still hot?

Tucker No.

Dr. Tucker said his first consultation with counsel or an attorney took place in Port Elizabeth on 10 November.

Asked by Mr. Kentridge who the lawyer was. Dr. Tucker replied: Mr. Van Rooyen.

Kentridge Mr. Van Rooyen, counsel for the police? Do you mean the counsel for the police?

Dr. Tucker confirmed it was the same person. Dr. Lang and Dr. Hersch had been present at the consultation but Col. Goosen was not there.

The Court heard that the week preceding the inquest another advocate, Mr. Pickard, had been called in to act as counsel for the doctors.

Thus the doctors' evidence concluded. None, on their own admission, had attempted to give or obtain for Biko any form of medical treatment.