‘Cerissa, you know Svritsky. I can’t give you any version.’
‘Then it seems, Mr Calloway, that we have precious little to talk about. Good day.’ She turned away from him to stub out the cigarette on the outer window ledge before flicking it expertly into the bin. Richard nodded. With nothing left to say, he retreated from the office.
Although, on the face of it, the cursory interaction had been unfruitful, both Du Toit and Richard knew that the purpose of his request for a meeting had been achieved: the defence attorney had ascertained that the eyewitness had not been located and that the State appeared to be no closer to finding him. They both also knew that the State’s case was thin without the witness: there were statements from incidental policemen, from the post-mortem pathologist, from a detective who found the car licence plate where it had come loose a few hundred metres up the road. Forensic evidence linked the blood on the licence plate to that of the deceased. There were photographs of the young man’s disfigured body. The traffic department records linked the number plate to the green Ford and to Svritsky’s fleet of business-owned vehicles. This established a circumstantial case against the vehicle, but it did not constitute a sustainable case against Svritsky himself.
In order to pursue the Russian, the State was reliant on a scrawled statement, taken at the scene by a junior police officer and signed with a scribble at the bottom. The witness was identified as ‘Samora Machel’ and gave an address at ‘Maputo Street, Cape Town’. Both were manifestly false and it was testimony to the policeman’s appalling education that he had not immediately recognised the deceit. The barely legible statement suggested that the witness had seen the accident involving the distinctive Coupe and could identify the driver. Although lacking in detail, the description of the driver sounded chillingly like Svritsky. The State clearly expected that, once found, their witness would be able to distinguish Svritsky in a line-up. Richard anticipated that the man would be extremely hard to unearth and, if found, reluctant to testify.
Armed with this information, he approached his client with a forced smile. ‘Stefan, good news. They don’t have the witness. She still wants to proceed, but they don’t have him. And without him, they’ve got nothing. Anyway, she’s bluffing, I reckon. She’ll throw a plea bargain our way and when we tell her to get stuffed she’ll withdraw.’ Richard’s speech strayed towards slang when he was around the Russian, and he disliked it. ‘She has to withdraw; she’s got no case and she’s got no choice.’
Svritsky smoothed some imaginary hair on his head with his burly hand. ‘In the meantime, I still have to pay you, yes?’ he scowled, handing over an envelope of cash to make his point. ‘Fuck, it costs me money every day, this rubbish. I should just fix her. Then I can get on with my life without all this crap, you know? All the time, this crap. Why always this crap that you cannot fix? Huh?’
Richard had long since learnt not to respond to the barked questions, asked with a lifted chin and smouldering eyes.
‘And that little boy … he fuck up my car, hey,’ the Russian continued, warming to his indignation. ‘I liked that car. It is old but that V8 motor was good. It purred … it was a good ride. I liked that ride. Then he fucking walk into the way. From nowhere he comes, into my beautiful car …
Bang!
’ Svritsky slammed his two palms together. ‘Then I have to throw it away. Like it is a piece of rubbish. More crap. Now they want to say it’s my fault!’ He shook his head and threw his cigarette into the gutter, still burning.
Richard held up his hands in an effort to calm down his client, but Svritsky was starting to boil. ‘A few drinks I have at the club. Just driving back, minding no one’s business, yes? On my own. Then this boy jumps out into my way. Like he
wants
me to hit him. It is just crap. You should have seen the bonnet. I’d just paid money to polish it. Cost me fortune. Then it is all cracked, and the windscreen is in pieces and the roof all dirty with his brains and shit. Maybe we could have put it back in shape, but then I realise that the licence plate is gone. So we must dump the whole car. It burns me up. The whole car. For some idiot who can’t watch where he goes. Burns me up. All this shit. All the time. Huh?’
Richard assented with a mumble, already wrestling with the approach he would adopt to comply with his professional ethics. Knowing that his client had indeed been driving the car, had also probably been drunk when the accident happened and had certainly laid a false complaint of vehicle theft – these were not insurmountable problems, provided that he did not mislead the court during the trial. He would have to challenge each witness on the content of their evidence without putting a version to any of them, breaking the trial up into small, isolated parcels of fact, each disjointed from the next, so that when the prosecution put them together, a fractured and incoherent narrative played out. He would have to win his case through pedantic challenges to the state witnesses, ensuring that he tugged at the smallest of inconsistencies until the fabric of the whole case unravelled. It would be laborious and would incur the irritation of the bench. It was not an approach that he relished and it felt far removed from the practice of law. He sighed resignedly as he pocketed the thick folded envelope of cash in his jacket. The back of his knees itched maddeningly.
Richard’s cellphone vibrated in his suit pocket as it registered a new SMS. The phone identified his wife Amanda as the sender. He stood in the shade of a stunted plane tree while he read the lengthy note: she had a book club meeting; Raine must be in bed at a decent time; supper was in the fridge; the dogs must be fed. Richard felt a surge of irritation. The message felt like an intrusion into his rarefied business world, as if his status as breadwinner was slighted by inconsequential domestic instructions. The implication was that he needed guidance to attend to his own family’s needs. Or, perhaps, just that Amanda had enough time on her hands to tap out such comprehensive instructions.
He became increasingly aware of a stale smell as he scrolled down the message. He put the phone away and glanced down at the base of the tree. Among the scattered pieces of chip packet and cigarette butts lay a curl of drying human turd, inches from his right foot. ‘Jesus,’ he exclaimed, jumping back out of the shade into the sunlight. He looked around him, as if he expected the culprit still to be present, walking away and pulling up his trousers. An old bergie was sitting on the low wall, his arms draped over his knees like limp seaweed. He opened his mouth wide, as if he were yawning, and revealed a haphazard assortment of broken teeth. Richard did not wait to listen and quickly strode after Svritsky, trying to elude the odour that trailed after him.
The preliminary hearing was held two days later in front of regional court magistrate Mrs Shirley Abrahams. Abrahams was a middle-aged and experienced criminal-court magistrate who had handled some of the most serious trials to come to the regional court. Her standards were high and she did not adopt the same flexibility towards procedural formalities that had crept into some of her colleagues’ courtrooms. She was known for being tough on crime, but Richard was certain of her impartiality. Several years before, when she was still in the district court, she had presided over a bail hearing where Svritsky was charged with attempted murder. As Richard expected, it was the first matter to be raised in the new case.
‘Mr Calloway, as you are no doubt aware, your client is not unknown to me. I heard a bail application some time ago in case number 1043/06 in the district court. Does your client have any difficulty with me presiding in this matter?’
‘No, Your Worship, thank you. I have discussed the matter in anticipation with my client and we are both perfectly happy that you preside.’
Abrahams nodded briefly in acknowledgement. ‘Fine. Now, before we proceed further, I understand you have something to say?’
Richard shuffled his notes in front of him. ‘Yes, thank you, Your Worship, with the Court’s leave.’ He glanced across at his opponent. The NPA had entrusted the prosecution to a relatively junior prosecutor, Bradley Dumbela. Dumbela had risen rapidly through the ranks of the district prosecutors, impressing with his preparation, his courtroom manner and his efficiency. He was a slim, well-groomed young man, an impeccably conservative dresser who never removed his black suit-jacket and wore only a restrained choice in ties. Dumbela was watching Richard closely, his pen poised above a fresh page.
‘Yes, Your Worship,’ Richard repeated, looking up to the bench. He paused, waiting for his thoughts to clear. Once he felt his mind focus, he continued: ‘It is our submission that my client will be prejudiced in his preparation for this trial, and indeed in proceeding with this trial any further, until such time as we have clarity firstly on the identity of the witness referred to in the State’s only eyewitness statement and, secondly, on the content of that statement. Your Worship, if I may hand up a copy of those notes, Your Worship will see what I am talking about—’
‘No, Mr Calloway,’ the magistrate interrupted. ‘No, you certainly cannot start handing up statements or notes or potential exhibits. The trial has not begun. The State is
dominus
and may elect to call or not call whatever evidence it may have at its disposal. If the State wishes to call a witness who has not previously been identified, or whose statement you feel is insufficient, then you may object on grounds of fairness at that stage. But on what authority can you prevent the commencement of the trial altogether? It may be that the State elects not to rely on or to call such witness. Then your problem is solved. Is that not so?’
‘Well, Your Worship, yes and no,’ Richard replied. ‘If the State does not call the witness, then, yes, the unfairness is solved. But what if the State does seek to call the witness, and then Your Worship dismisses our objection? Well, then, the basis upon which we have conducted the trial – namely that calling that witness would be unfair – would be undermined and my client may be prejudiced by that. It is prejudice we believe that we suffer at the outset, rather than at the time the State decides to call the witness.’ Richard felt his point was well made, but Abrahams was shaking her head in disagreement.
‘Mr Calloway, are you suggesting – before we have so much as had the first shot fired in anger in this matter – that I am likely to make an unfair decision at some point further on in the proceedings, and therefore the matter ought not to proceed at all?’
Richard blanched. His submission suddenly seemed tenuous. But Abrahams was not finished. ‘In fact,’ she proceeded, with a cold smile on her lips, ‘your argument is that if I make an unfair finding at a particular point in this trial, that would be prejudicial to your client, and therefore the trial should not start in the first place. If I were to accept that argument, then I doubt that any trial would ever get off the ground.’
‘But, with respect, Your Worship,’ Richard replied, trying to resurrect the argument, ‘my client has the right conferred by the Constitution and as expanded in
State versus Mentoor
to receive full particularity of the evidence to be brought against him. The statement produced by the State falls hopelessly short of the mark in this regard.’
‘No, Mr Calloway, you of all people know not to overstate the impact of the Mentoor case. Mentoor says that your client is entitled to see the evidence that the State has collected. He cannot complain if the evidence is poor or scanty; indeed, he should be delighted at seeing the weaknesses in the State’s evidence. If, however, he feels that the calling of some witness has caught him unawares, or that evidence adduced by the State prejudices him because he was insufficiently aware of such evidence, then the time for objection must surely be when the evidence is sought to be presented. I can see no basis for the objection at this stage, Mr Calloway. Your application – if indeed that is what it was – is dismissed.’
‘As the Court pleases,’ Richard said softly, dropping back into his seat. The magistrate’s last comment seemed unnecessarily churlish. He turned to Svritsky sitting in the dock behind him and noted the colour of his eyes starting to deepen. Further behind him, he noticed the investigating officer, Captain Riedwaan Faizal, folding his arms and curling his lips into an almost imperceptible smile. Faizal’s tough-cop image meant that he seldom displayed emotion, apart from seething aggression. It had been a long time since he and Richard had seen each other, but none of the animosity had cooled.
‘Mr Dumbela, the charges please.’ Abrahams clicked her pen in anticipation. Richard rose again, tapping the edge of the dock to motion to Svritsky to stand. The Russian lumbered to his feet, sighing theatrically. Abrahams looked up sharply, her eyes narrowing as she stared at him.
Dumbela read out the culpable homicide charges and alternatives.
‘How does your client plead, Mr Calloway?’ Abrahams asked.
‘Not guilty, Your Worship. No plea explanation and no Section 220 admissions.’
‘Mmm, unsurprising. Do you confirm that, Mr Svritsky?’ Abrahams was one of the few magistrates still to insist that an accused confirm his plea on record. She pronounced his name perfectly, as if she had been practising it for a while. Svritsky nodded truculently. ‘On the record, please, Mr Svritsky. Nice and loud now,’ she added, as if she were addressing a child.
‘Yes,’ he scowled back, ‘yes, that’s right.’
‘Okay, then,’ she continued, more pleasantly as she turned her attention back to Richard. ‘Trial will commence in three weeks’ time, on 5 March. Mr Dumbela, I expect the witnesses to be lined up and ready to testify. Mr Calloway, I don’t grant postponements, as you know by now. I expect you to be ready to proceed. Let’s try and complete this trial in one sitting, shall we?’ She did not wait for a reply, rising to her feet as soon as she had finished speaking and moving towards the side door to her office.
‘Rise in court,’ the court orderly shouted belatedly, struggling to get out of the broken chair in which he had been slouched all morning.