From the book: No.46 - Steve Biko by Hilda Bernstein, 1978, South Africa
These are the indisputed facts concerning the treatment of Mr. Biko.
Mr. Biko was detained on 18 August 1977, whilst in good health. He did 26 days later. What the security police themselves admit they subjected during this period is more than a matter for comment. The admitted assaults his dignity under the direction of Colonel Goosen are evidence of a callous disregard for his legal and human rights and are highly relevant in assessing evidence of those who abused him:
He was left in solitary confinement from 19 August to 6 September. He was deprived even of the negligible rights he had as a section 6 detainee. His clothes were removed and he was left naked in his cell; he was not taken out for the minimum period of exercise in the open air; he was not allowed to purchase any food; he was not allowed proper washing facilities. His complaints magistrate on 2nd September did not even come to the notice of those against whom they were made.
He was brought to the interrogation room on the morning of 6 Sept 1977. At night he was handcuffed, and shackled by leg irons on his feet in turn were locked on to walls. This was the position that he was expected to sleep in. He remained so shackled even after Colonel Goosen (according to his own evidence) suspected that he had suffered a stroke, and even after his hands feet and ankles were swollen and cut.
He remained shackled on the mat after Dr. Lang saw him, for the day of the 7th and during the night of the 7th/8th and during the morning of the 8th. Security policemen say that he had not made use of toilet facilities offered, but the fact is that he was found in urine-wet trousers and blankets, on mat, and was left there, shackled, until he was removed to the prison h at about 21.00h.
No channels of communication were established to report his condition to the doctors.
For contradictory and inadequate reasons he was moved from the prison hospital to a police cell, ostensibly to make it easier for Dr. Lang to see him regularly. In fact, this meant that he was removed from even the semi-skilled care of the prison warders; removed from a bed to a mat, and again left naked.
In a few hours he was found in a state of collapse on the floor. The' officers and Dr. Tucker were again hurriedly called in. Again there was insistence on only a prison hospital, even if it was 1,200 km away, and even if only a van was available as transport.
He was transported approximately 1,200 kilometres lying naked in of a Landrover without any medically qualified person and with nothing more than a bottle of water by way of equipment.
The doctors of Port Elizabeth furnished no medical reports, nor did the security policemen who took him to Pretoria ask them for.
Although he had to be carried into prison by four men using a stretcher, a further attempt was made by the security policemen from Port Elizabeth to persuade officials at the Pretoria Prison that he might be feigning illness, and that he was on a hunger strike.
He was sent all the way to Pretoria Prison because there, according to Colonel Goosen, there were 'outstanding medical facilities'. For Biko these facilities proved to be a mat in the corner of the cell, the attendance of a newly-G.P. six hours after his arrival at the prison, a diagnosis based on false reports of a hunger strike, a drip and a vitamin injection, and nothing more.
At no time was any member of Biko's family or any friend informed of his condition. He died a miserable and lonely death on a mat on a stone floor in a prison in cell.
It is difficult to comment on these facts in measured terms. Certainly Colonel Goosen's statement made after his death that everything was done for the comfort and health of Steve Biko is as cynical a statement as any heard in a court of law. Colonel Goosen, Major Snyman, Captain Siebert, Lieutenant Wilken, and Dr. Tucker are all to a greater or lesser extent involved in the sorry treatment of Mr. Biko. Their alleged concern must be judged in the light of their conduct rather than their professions. The evidence of some of the security police of their tenderness towards those in their care becomes unacceptable in the light of this conduct and their use of improper methods of interrogation.
The Pathological Evidence ”” The Brain Injury
By the pathological evidence, the brain injury is dated as 4 to 8 days old by Prof. Loubser, Dr. Gluckman and Prof. Simpson””probably 5 to 6 days old; as probably 5 to 8 days Prof. Proctor, while Prof. Loubser and Prof. Simpson thought the injuries to the brain were nearer 5 than 12 days old.
The head injury was therefore suffered before the night of the 8 September, and not earlier than 4 or 5 September.
The Police Evidence is that Biko left Walmer at 10 a.m. on 6 September. He was d well. He then underwent seven or more hours of interrogation during which, according to his interrogators, he was in possession of all his faculties. This session ended at 6 p.m. At 7.30 a.m. on 7 September he was found by Colonel Goosen to be incoherent. He was not responding to stimuli, and Colonel Goosen spoke in terms of a stroke'.
The Clinical Evidence is that by 10 p.m. on the 8th Dr. Hersch had found unmistakable evidence of brain damage””(the extensor plantar reflex, echolalia and left-sided weakness).
Earlier on the same day Dr. Tucker's examination revealed neurological abnormalities (whether or not he realised it at the time):
Biko moved his left arm with difficulty; its reflexes were reduced. There was a doubtful up-going toe on the right side; he had difficulty in using his left leg; eneurisis had occurred.
These features reflected a neurological disorder.
At 9.30 on 7 September Dr. Lang, (whether or not he realised their significance) noted neurological abnormality:
Slurred or thick speech; the 'ataxic type' gait; a difference between the reflexes in Biko's arms.
This evidence places it beyond reasonable doubt that Mr. Biko had suffered his brain injury by 7.30 a.m. on the 7th. It also points to the very strong probÂability that the injury had been suffered not earlier than the night of the 6th. Note Colonel Goosen's telex which speaks of the fact that injuries were 'inflicted' at 7 a.m. on the 7th.
In the course of cross-examination we put it that Biko had been 'smashed up'. Police witnesses and district surgeons maintained that he showed no sign of this, that all they saw was a cut lip, a bruise on the chest and abrasions on wrists and ankles. This evades the real point of the indisputable evidence. On the morning of the 6 September Biko went into the interrogation room alive and well. At 7.30 a.m. on 7 September he was a physical and mental wreck.
It is clear; therefore, that Mr. Biko suffered his injuries either while in the custody of the night squad (Lieutenant Wilken, W/O Fouche and Coetzee) or the day squad (Major Snyman, Captain Siebert, W/O Marx, W/O Beneke, Sgt. Nieuwoudt). Nobody else can have direct knowledge of how he sustained his injuries. It is, therefore, for them to explain acceptably how he came to sustain them. In the absence of an acceptable explanation the court is entitled to draw an inference that one or more of them was responsible for unlawfully assaulting him.
If, in addition to failing to give an acceptable explanation, a false explanation is given, the inference of guilt is strengthened.
In this submitted that no satisfactory explanation of the injuries has been given, and that false evidence of the events of 6 and 7 September has been given by members of the security branch.
No Satisfactory Explanation
From the Night Squad, Lieutenant Wilken and W/0 Fouche, one has had a bare denial that Biko was assaulted. He was within their sight or their hearing all times during the night. Both stated that they could hear any sound above a whisper. Nobody appears to have heard anything unusual. The affidavit W/0 Coetzee is similarly negative. No explanation is to be found in this evidence.
From the Day Squad, all five members have given an account either orally or affidavit. Their version consists of a story of aggression by Biko””for which and conflicting explanations were given””followed by a struggle. It is said that the struggle was a violent one, that five men were needed to overpower him and that he went on struggling even after he was manacled. In the course of this struggling, it is said Biko and his captors bumped into the furniture and perhaps into the walls and may have fallen to the ground.
Can this version explain the brain injury? It cannot for the following reasons:
In the first place not one of the five is prepared to say that he saw Biko strike forehead. Nor does anybody admit to having seen what would have been a fresh injury on his forehead””notwithstanding the fact that they saw the lip injury. Moreover””nobody mentioned either in his original affidavit or in his later statement to General Kleinhaus that Biko had or might have bumped his head.
In the statements taken by General Kleinhaus the policemen concerned had their attention specifically drawn to the question of brain injury; and asked if they could give any explanation of it. The fact that nobody mentioned that Biko had or may have bumped his head either on a wall or on the floor leads irresistibly to the inference that that did not happen. Neither Major Snyman nor any of his officers has given satisfactory, or even intelligible accounts of any impact which might account for the injury. Major Snyman in the occurrence book stated as a fact that Biko had fallen with his head against the wall and his body on the ground'. But when pressed by the Court it became clear that he had seen nothing of the sort. He was drawing on ‘inference'.
Captain Siebert is equally vague and unconvincing. In his original affidavit, he said that during the struggle 'we' fell against tables, chairs and on the ground. But when General Kleinhaus all he could say was that it was not ‘impossible' that the injury could have been sustained on the 7th pertinently put the question to him. He said nothing about any particular fall and nothing Biko's head being knocked against the wall. When asked whether he had seen Biko fall with his head against the wall, he said No, that it was he, Siebert himself, who bumped into the wall.
Warrant Officer Beneke does not claim to have seen any impact or possible impact to Biko's head. Warrant Officer Marx conceded that he had never said evidence that Biko sustained any head injuries, nor did Major Snyman ever say anything of the sort to him.
Notwithstanding the absence of any convincing evidence that anyone saw Biko sustain to his head it might be argued that in a confused struggle in a crowded room he might have sustained a blow on his forehead which nobody noticed at the time. This in itself is possible, although highly unlikely. But the struggle' was an explanation of the injuries is entirely eliminated by the powerful medical evidence on the subject of unconsciousness. There is strong, convincing uncontroverted evidence that the brain injury which Biko suffered must have resulted in a substantial period of unconsciousness.
Professor Proctor stated' I would say, as far as medically one can say it that this patient must have been unconscious'. He estimated a period of unconsciousness often to twenty minutes. It could not have been momentary. And if all the brain lesions were caused by one blow, the period of unconsciousness would have been greater.
Professor Simpson agreed that it was almost inconceivable that there we" not have been unconsciousness following these lesions to the brain.
Professor Loubser, stated that he had no reason to disagree that there " have been a period of unconsciousness of at least ten minutes””more likely fifteen to twenty, and possibly up to an hour.
When asked by the court whether he agreed that it was 'virtually inconceivable that there would not have been an appreciable period of unconsciousness answer was 'That is my personal view and I agree with that; but the alternative that he was not unconscious is a distinct possibility that I cannot rule out'.
In the light of all this evidence, it must be accepted not merely on the balance of probabilities but for all practical purposes that the injury sustained must have resulted in a period of unconsciousness.
The account given by the various officers completely excludes any possibility of unconsciousness. It follows that the struggle as described cannot be taken is explain the injuries. Some other explanation is necessary but has not been forthcoming.
The possibility of a self-inflicted injury was mentioned in passing but not seriously mooted. None of the doctors appears ever to have come across phenomenon of a self-inflicted brain injury, or to have read of it.
Even if it is medically not impossibility, it is so improbable as not to be worth mention. During the time in question Mr. Biko was constantly under surveillance. None of the night squad heard or saw anything untoward; none of them suggests that Biko was ever out of his bed. As Professor Loubser says, to inflict that degree of injury himself, he would have had to bang his head against the wall with some considerable force 'and repetitively'.
The Furnishing of False Explanations
It is submitted that the police account of what took place on the morning the 7th is untruthful. An analysis of the evidence shows that at some time in the night or the early hours of the 7th, possibly at 7.00 a.m., possibly earlier, injuries were inflicted on Mr. Biko. It must have been seen that he was unconscious; and his lack of reaction to stimuli as he began to come round caused concern to Colonel Goosen. The seriousness of the injuries was no doubt not realised, but it was nonetheless felt necessary to call in a doctor. Some of the injuries, such as the cut lip, could not be disguised. It was therefore necessary from the outset to give some explanation of his injuries which would make him out to be the aggressor, and justify any force used against him. The telex concealed by Colonel Goosen as long as he was able to, and produced in this court at a late stage, throws a great deal of light on this. The telex speaks of injuries inflicted on Mr. Biko at 7.00 a.m. Colonel Goosen, in answer to his own counsel, said that he was referring to the minor injuries such as the lip injury cannot be true. The vital point in the telex was that Mr. Biko's inability to speak was directly related to the injuries inflicted. No one could have hat a mere injury to the lip would have accounted for his failure to incoherence, or the symptoms generally which Colonel Goosen chose to describe as evidence possibly of a 'stroke'.
Notwithstanding what he could see for himself. Dr. Lang was induced to give clean certificate, one which he acknowledged in this court was substantially incorrect and which we submit was plainly false.
With the certificate for protection in case the detainee should later complain, no further steps were taken by Colonel Goosen. However, when Biko again manifested alarming symptoms on the night of the 7th, further action became necessary. That action was the making of Major Snyman's entry in the occurrence book. There a foundation was laid for a version which won Biko's injury as caused by 'falling with his head against the wall'. The explanations given for this late entry have been contradictory and unacceptable is main affidavit. Major Snyman gave as his reason that Biko was still stubbornly refusing to react to questions. In his evidence he gave as reason that Biko was shamming””a ridiculous reason. Colonel Goosen said in evidence that the entry was made because of an injury to W/0 Beneke. And in the telex, the reason for not making the entry at the proper time is said to be the existence of Dr. Lane's certificate.
It is instructive to compare the telex dated 16 September with Colonel Goosen's affidavit dated 17 September. The telex clearly connects Biko's refusal to speak with the injuries. The affidavit does not; on the contrary, the detainee's condition is attributed to a suspected stroke. The telex, intended only for the eyes of the security police, says nothing about any suspicion of shamming.
The affidavit, intended for other eyes, is at pains to introduce the alleged suspicion of shamming””the refrain taken up by all the Security Police officers when compelled by circumstances to give some explanation. It is little wonder that Colonel Goosen denied the existence of any telex messages.
This false denial shows that he was well aware of the contradiction between what was stated in the telex and what he had said in his affidavits and evidence. Why else should he have lied?
At that stage when they were giving evidence, and it was their case that the brain injuries were probably sustained in the 'scuffle', both Colonel Goosen and Major Snyman were impelled to say that they always had it in mind that Biko's mysterious state might be attributable to a head injury. But this is the possibility that was never mentioned by Colonel Goosen or anyone else to Dr. Lang, Dr. Tucker or Dr. Hersch. What can be the explanation for that? I suggest only a desire to conceal the true circumstances in which the injuries were received.
Consider also the fact that amid the host of irrelevant photographs of places to the police photographer, the one thing that was never pointed out where Biko might have bumped his head in the struggle.
Major Snyman's statement that he demonstrated to General Kleinhaus ho the alleged fall of Biko against the wall took place is obviously unacceptable; there is no mention of this in any of the affidavits which the General took and is inconceivable that even in the type of investigation carried out by the General, this point would not have been noted by him.
It is fairly easy to make up a general story of a 'scuffle' in which anything may happen including the bumping of a head against a wall or the floor; but it is not easy for the police officers to explain why this possibility which looms so large their present evidence played no part in their reports to the doctors or in the attitude to Biko. If they really believed that he had, without fault on the part the police, possibly sustained a head injury in the struggle, it is inconceivable that they could have clung so firmly to the idea that he was shamming. There are furthermore numerous points on which the police evidence concerning the origin of Mr. Biko's alleged 'aggression' is demonstrably false.
First and most important is Major Snyman's attempted explanation of why Biko should have 'gone berserk'.
Major Snyman begins a circumstantial account of the facts with which confronted the detainee on the morning of the 7th. He denied that these 'facts were simply plucked out of the air, and said himself (without prompting fn his counsel) that they already had sworn statements in that connection and counsel then tendered the sworn statements to the Court. It was made clear that the sworn statements handed in were the sworn statements with which Biko was confronted. Major Snyman was specifically asked whether he had put these sworn statements to the detainee on the morning of the 7th and he confirmed this.
It was then shown that the sworn statements were dated after Biko's death.
After this ignominious retreat, Snyman made some attempt to suggest that he had in mind unsworn statements. But the other police officers admitted that on the morning of the 7th no documents at all were put to Mr. Biko.
Consequently, what we have is clear and plain cases of deliberate perjury-the part of Major Snyman. What object could he have had in putting fan' a false reason for Mr. Biko's alleged outburst, other than to conceal something to his own discredit?
Major Snyman's careful story of the confrontation of Biko with the facts is entirely contradicted by the affidavits made last September when the full implications of the case were not yet clear to the police officers. Major Snyman in his affidavit says nothing about confronting Biko with facts; he speak-questions to which Biko would not respond. Captain Siebert, in his affidavit, says that Major Snyman was putting questions to Biko which Biko was answering in a hostile manner. Warrant Officer Marx suggests that Biko's outburst started only after twenty minutes of interrogation. Warrant Officer Beneke also indicates that there was about fifteen minutes questioning before the alleged incident.
Captain Siebert's further attempt to decorate the story by describing how was shocked by the confrontation, and how he went 'ashen grey' is a most unconvincing afterthought; in his affidavit there is no mention of this, and Biko is said to have been answering in a hostile manner right up to the moment when rang up to the moment when he sprang up.
Indeed the whole story of the alleged confession in the late afternoon of the 6th is unacceptable.
There are indications in the evidence that this confession was a fabrication. First, Lieutenant Wilken's statement to Mr. Biko that he should 'stop wasting people's time and tell the truth' would hardly be comprehensible if Biko had already confessed. And finally the fact, stated by Brigadier Zietsman in affidavit, that when Colonel Goosen was asked how far the investigation had progressed, he made no mention of Biko's confession. On the contrary, all that he reported was Lieutenant Wilken's report of Biko's request for fifteen minutes and his subsequent failure to make a statement.
From the time of Dr. Lang's first visit on the 7th, right up to the last days' evidence in this court, the police officers have repeatedly stated that they believed that Mr. Biko was shamming. They pressed this view on the doctors; and still maintain that this was their genuine belief. This is also demonstrably untrue.
Colonel Goosen, in his evidence, based his belief on gossip that Biko in previous detention had shown 'similar symptoms', whatever that may mean.
This is that he said to the Port Elizabeth doctors. But no attempt was made to substantiate this. Any other officer did not confirm it.
As to the cause or likely cause of death there can be no doubt whatsoever. On the evidence of Professor Loubser, Proctor and Simpson and Gluckman it has been established that Mr. Biko died as result of at least three brain lesions caused by the external application of force to his head. The suggestions made in the affidavits of certain police officers and highly placed persons outside court, that Mr. Biko was on a hunger strike, or that he had become dehydrated that he had suffered a stroke or that he suffered from kidney disease, need no serious consideration.
The other question which the court has to answer is whether the death was brought about by any act or omission involving or amounting to an offence on of any person. The Court may find that a person is responsible, and if his identity has been disclosed in the evidence the court should name him. The fact that the identity of a wrongdoer has not been disclosed in the evidence does not, however, mean that the court is entitled to make a finding that no person is guilty of any act or omission causing the death. A negative finding would be tantamount to exonerating all the persons involved in the handling of Mr. Biko. a conclusion which would have the effect of exonerating all concerned is one that cannot on the evidence as a whole, be reached by any reasonable man.
Our submission is that one or more of the security policemen is responsible for the injury which caused Steven Biko's death, and that the probabilities are that the injuries were inflicted deliberately, unlawfully, without good cause Those responsible are accordingly guilty of at least the crime of culpable homicide.
We do not submit that Mr. Biko was willfully killed in the sense that whoever assaulted him wanted him to die. We submit that he was beaten; and the person or people who did this did not at the time care whether he was seriously injured or not.
This court's function is not to try the security policemen nor to convict them. An inquest is not a criminal trial at the instance of the Attorney General nor indeed is it a private prosecution with the representatives of the family as the prosecutors. The function of the court at an inquest is an attempt to ascertain whether or not there is evidence that, on all the probabilities, establishes at least a prima facie case that some person, known or unknown, is responsible for the death of the deceased. The court, therefore, does not have to come to a verdict beyond any reasonable doubt. The court must express an opinion as to whether or not there is a prima facie case. Whatever the court's view may be in relation to a prima facie case, if it is apparent that further investigations should be conducted, it is the court's duty to point this out to the Attorney-General, in the hope that the further investigation will take place.
Although the Court's finding is not a final one, it is nevertheless an important one, in which the members of the family have a real and substantial interest.
We as representatives of the family are entitled to avail and have availed ourÂselves of the opportunity to -place information before the court and to cross-examine witness in order to assist the court in coming to correct conclusion.
However, we have been subject to a number. We have no right to subpoena witnesses. Nor in the nature of things could we produce an eyeÂwitness to the treatment received by Biko in Sanlam Buildings. What we have tried to do is to test and probe the evidence made available to us by the court. We have been permitted full scope by the court in cross-examining the witnesses called, although we would, of course have liked to cross-examine other persons too whom the court felt it unnecessary to call.
In the task of probing and testing the evidence of the police officers and the witnesses, we had the assistance of the court, but none of the other counsel in court. All, including the Deputy-Attorney-General, appeared to us to ask no question but to repair or extenuate the effect of our cross-examination. NotwithÂstanding public promises of the fullest investigation, the investigation undertaken by the police had peculiar and unfortunate limitations. First, it appears that the investigating officer made his appearance in Port Elizabeth only a month or more after Mr. Biko's death; yet the fact of Mr. Biko's injury””if not its cause-was ascertainable from Prof. Loubser by the morning of 13 September. The investigating officer took numerous affidavits, many in duplicated form, and all self-serving. He failed to search for or take possession of documents””not even the telex messages or the hospital bed letter. He made no search of the Security Branch's office, whether for possible blunt instruments or for anything else.
He seems to have made no effort to find out whether there was any truth in the rumour spread by Col. Goosen that in previous detention Biko had shown 'similar symptoms', nor does he seem to have subjected Col. Goosen to any real interrogation on this or any other subject. A police investigation would require far more spirit and initiative than asking suspects to fill in a form or answer a few simple questions. Accordingly we must base our submissions on the probabilities which arise from the medical evidence, the circumstances surrounding Mr. Biko's death, and the evidence, often unwilling and evasive, of the police officers and doctors concerned.
Our submission in simple summary is that Mr. Biko was assaulted and that is how his brain lesions were caused. The security police deny that he was assaulted and now appear to suggest that his injury may have been accidentally caused in an incident on the morning of the 7th, in which Mr. Biko was said to be the aggressor. We assume that the fanciful theories of Colonel Goosen that the injuries were self-inflicted in attempts to commit suicide are not going to be persisted in. The main issue before the court, therefore, is whether, considering the evidence, there is reason to conclude that one or other of the security policemen assaulted Biko while he was in their custody.
There is no direct evidence that any particular security policeman assaulted Biko. The reason for the absence of such direct evidence or eyewitness evidence to the fact that some at least of the security police have entered into a 'racy of silence as to what really happened.
However, in order to reach the conclusion that Biko was assaulted, it is not necessary to have direct evidence. Circumstantial evidence may be far more than direct evidence.
The circumstantial evidence which shows that one or more of the policemen assaulted Mr. Biko during the night of the 6th/7th or the morning of 7 September falls broadly into the following categories:
The time when the injuries were sustained, namely between the evening of the 6th and 7.30 a.m. on 7 September.
The failure of the police officers to give any truthful or acceptable explanaÂtion of the circumstances in which Mr. Biko received his injuries; they concealed the truth, and in this court some of them at least have given demonstrably false evidence.
The behaviour of certain of the doctors and their failure to see what must of necessity have been visible to them, which shows that they too were drawn into the conspiracy of silence.
The callous treatment of Mr. Biko by the security police.
The overwhelming balance of probabilities on the medical evidence that the 'scuffle' on the morning of the 7th could not have caused the brain injuries found post mortem. This story bears all the hallmarks of invention.
It has already been pointed out that the telex makes no mention of shamming.
Certainly after Dr. Hersch's examination none of the officers could honestly have believed that Biko was shamming, yet they persisted with their story. Colonel Goosen's second affidavit, of Biko's first feigning weakness in one arm and then in another was shown to be false””none of the doctors would support it. And the clinical findings of Dr. Tucker and Dr. Hersch show that the comÂplaint in both cases was in respect of the left arm””another pure invention by Colonel Goosen.
It is not possible to believe that Colonel Goosen made the urgent arrangement' which he did on Sunday evening, the 11th, for someone whom he honestly believed to be a malingerer.
He says there that at the time Biko was sent to Pretoria he still had no reason to believe that the man was sick. This is the man whom in his own telex he described as being in a 'semi-coma'. There are other false statements on this topic scattered through Colonel Goosen's evidence. For example, his affidavit that he was assured by all the doctors (including Dr. Hersch) that there was nothing physically wrong with Biko; and that it was the 'general opinion' that - the detainee was shamming. This was plainly untrue; his attempted explanation of the words ‘general opinion' shows this witness at his most shifty.
Colonel Goosen attempted to deny that the suggestion of shamming came from him to the doctors. He suggested that it was the doctors who conveyed the suggestion to him. This is plainly false. Perhaps the most absurd and flagrant example of Colonel Goosen's prevarication is the 'theory' in his second affidavit. Even at that stage he put up the theory that Biko's head injury had been self-inflicted on the early morning of the 9th. (i.e. after Dr. Hersch's clear findings of evidence of neurological damage). He maintained in evidence, that when he made that affidavit, he still thought that Biko had been shamming on the 7th and the 8th””in other words that on the 7th and 8th Biko was shamming the effects of a injury which he actually suffered on the 9th.
No honest man could have believed the theories stated in his affidavit. They constituted an attempt to draw attention away from the fact that the head injuries had actually been suffered not later than the early morning of the 7th, and in circumstances to which Colonel Goosen did not dare honestly to advert.
Colonel Goosen's attitude is reflected in that of other members of his branch. For example. Captain Siebert, Lieutenant Wilken and Warrant Officer Fouche were all responsible for taking Mr. Biko in a semi coma from Port Elizabeth to Pretoria. They had to carry him to the van. He was plainly comatose dunes' the journey. He had to be carried into the prison in Pretoria. At Pretoria Prison when Sergeant Pretorius said he was afraid for Biko's life, the reaction of Captain Siebert and Lieutenant Wilken was to suggest that he was still shamming.
In this court they maintained that position.
Warrant Officer Fouche, without being able to give any credible reason for it, echoed this view when giving evidence on the last day of the hearing.
There is also the unexplained mystery of the alleged hunger strike. What is known is that the Ministerial head of Colonel Goosen's department shortly after Mr. Biko's death issued statements in which it was said that on 5 September he had threatened a hunger strike and refused to speak. What is abundantly clear is that Biko did not 'threaten' a hunger strike and particularly that he did not do so on 5 September. The question remains how it was that which were false and misleading, could be made and repeated at the highest level.
And why was it that in the official statements there was no mention of this 'scuffle' which has now taken on such importance in the police evidence? Who was responsible for this misleading statement? And, equally who was responsible for the fact that although published amidst a public outcry, it was never corrected? The Security Police have not seen fit to clear up this mystery; nor has the Minister of Police. Although Colonel Goosen has denied that it started with him, there can be little doubt that it must have originated in the Port Elizabeth office.
A further unexplained mystery, which casts doubt on the truthfulness of the police officers, is their concerted denial of having seen the obvious injury on Mr. Biko's forehead. As Professor Loubser and Dr. Gluckman indicated, it is hardly credible that this would not have been seen by any of the police officers. The doctors did not admit having seen it either””a fact which will be discussed when their evidence is considered in detail.
The inference from the false evidence of the Police Officers
It is necessary to consider the effect of this mass of false evidence. Sometimes statement does no more than destroy the credibility of the man who makes it. But in many cases the making of a false statement is in itself a piece of positive evidence.
This is particularly so when the obvious inference from a piece of false evidence there is something which the witness wishes to hide. This is plainly such There could be no reason for the mass of false evidence referred to above is by no means a complete recital of all the falsehoods in the police (evidence), unless there was some circumstance connected with Mr. Biko's injuries which the police wanted to hide. No other explanation can reasonably suggest itself.
The false evidence is of a piece with the actual conduct of the police at the time. They constantly distracted attention from the possibility of a head injury and the theory of shamming. They kept the detainee in Sanlam building as they could, and persistently refused to allow him to go into a Provincial Hospital. They gave instructions when he went to Port Elizabeth Prison that no black member of the police force should come into contact with him.
They gave a false name when sending the samples to the Institute of Medical Research and his true name was kept at least from Mr. Keeley and possibly from Dr Hersch.
They were anxious to get him out of Port Elizabeth Hospital and back into the Walmer police cells as soon as possible; and they preferred to send him road to Pretoria rather than put him in a Port Elizabeth hospital.
The falsehoods with which we are dealing are not on peripheral or collateral matters. In the words of Judge Schreiner (R. v. Gani, 1958), what is before the court is not merely a story put forward by an untrustworthy witness, 'it is the story of which the central, justificatory feature must be rejected as a concoction
The only inference which can properly be drawn is one of guilt.
The Port Elizabeth Doctors' Findings
The medical profession's general reputation has led courts in the past, whenever an issue arose as to whether a prisoner seen by a doctor had been assaulted or not, to place great if not absolute reliance on the district surgeon's finding' We are compelled to submit that in this case the proved facts show that not only can the court not rely on the evidence of Drs. Ivor Lang and Benjamin Tucker but that an analysis of the evidence shows that they joined with the security polio in this conspiracy of silence. Not only can the court not rely on their evidence that they saw no injury, other than the lip injury, and that no complaints were made to them by Mr. Biko; but their admitted lack of enquiry about the possible cause of his injuries and/or the probable cause of the suspected brain damage shows clearly that, at the very best, they turned a blind eye. Dr. Hersch is not specifically included in these criticisms, even though his stated failure to see the injury on Mr. Biko's left temple and eye is difficult to accept.
Dr. Ivor Lang cannot be believed for the following reasons: He was not able to explain the reason why he issued the certificate; why the complaint that he noted on the certificate was other than that made by Colonel Goosen; why he had not noted the injury on the lip, the ankles, the wrists, the swelling of the hands and feet nor the bruises over the sternum. His concession that the certificate was 'highly inaccurate' and his statement that he did not know why Colonel Goosen might have wanted it is sufficient grounds to disbelieve him on any of the matters where his evidence has been put in issue.
In leading questions put by counsel for the security police, an attempt was made to rehabilitate Dr. Lang on this point. However, Dr. Lang's acceptance that he only issued the certificate in the form he did at the specific request of Colonel Goosen in order that Goosen's records may be kept 'straight', may be evidence of a degree of subservience which goes a long way to prove the submission being made.
This purported explanation is in conflict with Dr. Lang's statement earlier, that he could not answer nor explain why the additional matters were not put into his certificate.
Dr. Lang's inability to answer the question why he did not ask Mr. Biko about his injuries, when he himself says that he suspected a head injury when he saw the lip, is inexcusable from a professional man on whom a grave responsibility has been placed to protect helpless people in detention. What value can be placed on the evidence of a district surgeon who says that the reason why he did not ask an injured person how he got his injuries, was because he assumed that the patient would have told him? In the presence of a colonel, or whilst lying in an interrogation room in the immediate vicinity of his interrogators!
In answer to Counsel for the Police, Dr. Lang said Mr. Biko had ample opportunity to complain to him. His report was misleading in giving lack of co-operation as reason for the ataxic gait, when in evidence he says that he attributed it to the swelling of the feet.
He failed to note in his report that he found Mr. Biko shackled, and only mentioned this for the first time in his affidavit of 20 October.
His decision to remove Mr. Biko from the prison hospital to the Walmer Police Station is inexplicable, if one has regard to Mr. Keeley's affidavit and the cursory enquiries made by him of prison officials.
His evidence in relation to his conversation with Mr. Keeley is in conflict with the affidavit of Mr. Keeley. The probabilities clearly favour Mr. Keeley's version. His statement to Biko at the prison that there was 'not much wrong with him'; his entry on the bed letter that no pathology could be found, and his explanations for these statements clearly show that he is not speaking the truth, even if he merely describes them as 'incorrect'.
His failure to enquire from Biko and/or Goosen whether there may not have been a head injury is not explained in cross examination or in answer to the Court. His failure to see the head injury (having regard to the fact that he saw Mr. Biko on the 7th, twice on the 8th, the 9th and the 10th) cannot be explained, except on the basis that he did not examine properly, or that Dr. Lang has made himself a party to the conspiracy of silence initiated by Colonel Goosen and his officers.
Dr. Lang himself offers no satisfactory explanation. His reliance upon hearsay evidence of Mr. Biko's condition at the prison hospital, which induced him to move him to the police cells so that he may more closely observe him and then failed to do so, shows a lack of responsibility towards his patient so extraordinary for a doctor that the most adverse inference must be drawn against Dr. Lang's edibility.
His reliance upon information given by untrained persons in coming to a inclusion that Biko's condition had improved on the Friday when it in fact had venerated further, strengthens the submission being made.
Dr. Lang's denial that Mr. Biko was 'smashed up' cannot be of any assistance anyone wanting to submit that he was not; a minimum of three lesions in the brain, two injuries on the lip and injury on the chest, abrasions on the wrists and ankles and swollen hands and feet, most of which Dr. Lang missed may not the minds of many be construed as an exaggeration if described as 'smashed up'.
Dr. Lang's unreliability and how easily he is influenced is best illustrated by his uncritical acceptance of whatever was put to him in cross examination by Counsel for the Police.
In view of the fact that he had consulted with Counsel for the Police (before giving evidence in Court), very little if any weight should be attached to his evidence when he readily concedes matters in favour of the Security Police.
His consultation with Counsel for the Police, at the offices of the Security Police, at a time when he knew that his patient had died, and when he must have realised that he had been misled about his condition, not only shows lack of sensitivity but a degree of identification between medical practitioner and the Security Police whose conduct he knew was about to be investigated.
Dr. Benjamin Tucker cannot be believed on matters on which his evidence has been put in issue for the following reasons: He too identified himself with the Security Police by attending the consultation held by their Counsel (before being called to give evidence).
Although he was called in by Colonel Goosen and told that Mr. Biko had not passed urine for a substantial period of time, he makes no searching enquiry when he finds his clothes and bedding wet with urine.
His persistence in making assumptions about the causes of the injuries on Mr. Biko which he admits he saw, is not in accordance with the practice of District Surgeons, far less of a Chief District Surgeon.
No satisfactory explanation was given for his omission in the report of the injuries to the ankles.
The superficial nature of the examination and/or the inaccuracy of the report is illustrated by his evidence that he only asked Mr. Biko one question; but he says in his report that Biko was mentally alert and answered questions in a" indistinct manner.
His evidence that he asked no questions to test the memory of Mr. Biko when he had been told that he may have suffered a stroke, is inexplicable.
The finding recorded by him as 'lack of co-operation' was clearly wrong in view of the concession that sufficient evidence was found that there was org,' disease.
His failure to enquire whether or not there was the possibility of a head injury once he had found the presence of a doubtful extensor plantar reflex, is clear evidence that he did not wish to ask questions which might embarrass the Security Police.
He evaded the questions of the cross examiner and the court in relation to I' state of mind after his examination of the patient on the 8th, and more especial after the findings of Dr. Hersch.
The condition that Dr. Tucker says he found Mr. Biko in on Sunday 11 th this at variance with the concern of Colonel Goosen and the bizarre behaviour noted by prison warders.
On his own evidence the examination on the 11 th must have been a cursory one; and his authorising the removal of Mr. Biko by road from Port Elizabeth to Pretoria is consistent with a desire to please Colonel Goosen and possibly to rid himself of the responsibility.
His persistence 'despite Dr. Hersch's findings' that there was no organic disease, does not bear critical examination.
For a registered medical practitioner to say that there were no signs disease if one ignored the positive plantar reflex and the level of consciousness is so absurd that one must seek some reason for such a statement.
He admits that his affidavit, though deliberately made, container incorrect statement.
In common with all the security policemen and all those who were allowed see Mr. Biko, Dr. Tucker failed to notice the obvious injury on Mr. bike's temple.
His statement that he considered Biko's condition satisfactory, and that is why he gave leave for the patient to be transported to Pretoria, is further evidence of his desire to accommodate the Security Police. His answers on this issue are clearly incorrect when analysed in cross-examination and is directly contradicted by the telex, which described Mr. Biko's condition at the time in Question as semi comatose.
The absence of inquiry from the orderly at the prison hospital or from Dr Lang as to Mr. Biko's clinical picture from the evening of the 8th to the afternoon of the 11th is evidence of lack of concern for the patient.
Dr. Tucker's concession that (in a hypothetical example) he would have treated a non-detainee differently and have insisted on his hospital) further evidence that he had abrogated his responsibility as a doctor, and was guided by Colonel Goosen.
To a lesser extent criticisms may be levelled against Dr. Hersch for his failure insist that Mr. Biko should have been hospitalized, his failure to react positively to the extensor plantar reflex; the apparent contradiction in the report on the spinal fluid; and above all his failure to enquire as to whether or not there had been a head injury. His failure to see the injury on Mr. Biko's temple is also inexplicable, as is the wrong name of the patient on the sample. His proÂfessed ignorance cannot be correct, as he would have had to tie up the sample with the report and the patient that he had seen.
The relationship of the District Surgeons to Colonel Goosen was one of subÂservience, bordering on collusion. Their obvious neglect of their patient's interests, and their deference to the requirements of the security police was a breach of their professional duty, which may have contributed to the final result. They should not have tamely accepted Colonel Goosen's refusal in any circumstances to send Mr. Biko to a proper hospital.
Their conduct is of a piece with Colonel Goosen's disregard of the statutory regulations and orders by which he ought to have regulated his conduct. He did it regard himself as working under statute.
For whatever precise reason, the doctors felt themselves beholden to the security police. Upon being called in, Dr. Lang gave a patently false certificate.
Neither he, not his superior. Dr. Tucker made any inquiry of their patient as to the origin of even the lip injury which, at least, they admit seeing. They did not even direct any inquiry to the police.
This studied lack of curiosity can only be explained either by their active collaboration with the police; or a deliberate election not to embarrass the police, nor indeed themselves, by asking questions to which the answers were obvious.
They””no doubt in common with the police””did not fear initially for Mr. Biko's life. On the contrary, it must have seemed that the course of time would heal Mr. Biko without their medical intervention, which would have had to be given in concert with officials of hospitals who would no doubt be more curious than they were.
And as time passed, one falsehood was compounded by another: Dr. Lang's false report to Biko that nothing wrong was found; and Dr. Tucker's claim that the dying man was in a satisfactory condition on his removal to Pretoria.
The police felt confident that they could rely upon the doctors to support them. And their confidence was justified. Perhaps strengthened thereby they, with gross impertinence, present to this court a totally implausible account of Mr. Biko's death, starting with a fanciful description of a struggle, violent in the extreme, in which no blow was struck; a bizarre account of an alleged shamming when to any candid observer a man's progress to his death was being seen and described; and all the while the refusal to acknowledge the head injury.
A court””including an inquest court””is the brake upon the abuse of power, It must be made known by this court that the penalty for falsehood contemptuously fabricated is not merely rebuke or reprimand but a firm finding adverse to the fabricators; if you create a tissue of lies it can only be that you dare' speak the truth.
Accordingly the verdict, which we submit is the only one reasonably open this court, is one finding that the death of Mr. Biko was due to a criminal assault upon him by one or more of the eight members of the security police in which custody he was at Sanlam Building on 6 or 7 September, 1977.
This inquest has exposed grave irregularity and misconduct in the treatment of a single detainee. It has incidentally revealed the dangers to life and liberty involved in the system of holding detainees incommunicado.
A firm and clear verdict may help to prevent further abuse of the system. In the light of disquieting evidence before this court, any verdicts which can he seen as an exoneration of the Port Elizabeth security police will unfortunately be interpreted as a licence to abuse helpless people with impunity.
This court cannot allow that to happen.