Death, Detention and Disappearance. David Smuts
Brune, was masterful, securing crucial concessions from this feeble and fumbling witness. We called the widely respected journalist, Allister Sparks, as an expert witness.28 He gave evidence about pamphlets and brochures from organisations being thrust upon journalists at conferences of the kind attended by Gwen, the protagonists eager to disseminate their messages to members of the media. The regional magistrate accepted Ian’s argument that it had not been established beyond reasonable doubt that Gwen had the necessary intention to possess the documents in question, and acquitted her.
On my return to Windhoek, I sent the letter, as advised by Sydney, to the Government Attorney to the effect that my clients had been advised that the certificate did not apply to the present proceedings as the minister of justice and state president had acted outside their powers in respectively signing and issuing the certificate. The Government Attorney was notified that we intended to press ahead with the application and set it down for hearing. The government respondents were called upon to file opposing affidavits if they wish to do so. I gave notice that the application would be heard on 28 May 1984.
The response from the Deputy Government Attorney, Chris Brandt, came a few days later. Its tone was threatening, as were its contents. It said that the actions contemplated in my letter were ‘malicious’ and ‘politically motivated’ and that a special order of costs would be sought against me personally. This was most unusual. Cost orders are normally sought and granted against the parties to a case, and not against the lawyers who bring them. I informed Jeremy of this response and he in turn contacted Arthur. I heard years later from my friend Geoff Budlender, who worked with Arthur at the LRC, that the usually calm Arthur had been outraged by this threat.
On the following weekend, Jeremy and I met Arthur at his offices to work on the written argument that would be presented a week later. When the draft was ready, we all went to Sydney’s home for his final input. The written argument was filed after my return to Windhoek.
The hearing was set for the following Monday, 28 May. Nothing was forthcoming from the Government Attorney until late on the preceding Friday afternoon when a voluminous set of papers was filed. These included answering affidavits. A colonel in the SADF admitted that the detainees had been captured in the course of a military operation in Angola. It was said that the operation was to combat terrorism in an operational area and that their capture and subsequent detention were necessary in order to do so. This had occurred on 4 May 1978. More than a year later the AG had, under section 5 bis of AG 9, issued detention orders under the 1979 amendment in respect of all of the detainees to authorise their ‘further detention’.
The head of the Mariental internment camp stated in an affidavit that the detentions had been recently ‘reviewed’ and that release warrants in respect of 55 of the 113 detainees had been issued; 31 of the 36 detainees whose release was sought in our application were in that number and would be released together with 24 fellow detainees over that weekend (immediately preceding the application). No explanation was given about the review itself – concerning criteria, considerations and its timing. But this was a thrilling development.
I immediately called Gay with this momentous news. We would, of course, proceed for the release of the remaining five detainees in our application. Another 58 detainees also remained in detention at Mariental. If we succeeded with the application, they too would be released. I also called counsel in both Johannesburg and Cape Town to apprise them of these developments. They decided that we should argue the case on the Monday rather than seek some time to reply to the opposing papers.
The courtroom was packed to capacity well in advance of the starting time. All of the lawyers in my firm came to court and took up positions on the attorneys’ bench. That was out of solidarity because of the Deputy Government Attorney’s stated intention to seek a special costs order against me personally. I had become a junior partner in the firm a few months before, on 1 March 1984. The three bishops, resplendent in their purple, took up their positions in the row behind me for clients. Several clergymen were in the public gallery, together with relatives of the detainees and activists, including Samson. Every single seat was taken. All available standing room at the back and on the sides was also occupied. The registrar, Mr Peters, was a fair man and was in attendance to ensure that every possible space inside the court could be utilised. In the foyer outside the court, a throng of people gathered to wait outside.
This, I felt, sent a powerful message to the three-member bench for the case. The newly appointed Judge President, Hans Berker, presided. He was flanked by Judges Chris Mouton on his right and Johan Strydom on his left. Berker’s appointment to the bench had been widely welcomed. He was drawn from the ranks of the Windhoek Bar and was from Namibia. This was a departure from the string of political appointments emanating from Pretoria and elsewhere in South Africa that had preceded his. He was also thought of as having liberal instincts. I knew him well. I had worked with him on a few cases in my first year and a half of articles until his appointment to the bench. His charming wife, Marianne, had played bridge with my mother before my parents had retired to Cape Town a year or so before. The Berkers occasionally invited me to their home for meals, which were enjoyable. He was open-minded and I felt we had more than a fair chance that he would find in our favour.
The other judges were also Namibian appointees. Their appointments had also been welcomed by the local profession. Judge Mouton, however, was a reliable supporter of the apartheid state and its policies. He had previously served as a National Party senator in the South African parliament. Until a few years before, whites in Namibia could vote for, and were represented by, six members in the South African Parliament and two senators. They were all members of the South African ruling party’s local branch and thus all subscribed to apartheid policies. A few years before, in 1977, representation in the South African Parliament had been abolished as one of the first steps taken by the South African government prior to its acceptance of the western proposals to bring about Namibia’s independence. Mouton then turned to practise full time in Windhoek. Although I did not hold high hopes of Mouton finding for us, given his political background, he had found against the security police in a nasty case in which a detainee client of ours, Johannes Kakuva, had gone missing and whose detention had been denied. Hartmut had succeeded with an application presuming Kakuva’s death at the hands of the security police. Judge Mouton had rejected the stonewalling by the security police and granted the application.
The third member of the court, Johan Strydom, had been appointed the year before. He was born in Namibia and had run a successful practice at the Windhoek Bar for several years before taking his appointment to the bench. I had worked with him in two matters. One had been a large commercial matter where I had assisted my principal during the first year of articles. He was a humble man, extremely pleasant to work with and a very competent counsel. He was also well-known in practice for his unimpeachable integrity. He had, significantly, never acted for the government in political cases. Nor was he active in political matters, unlike Mouton. These were good signs. He had always struck me as a fair and decent man, which he more than demonstrated in his many years on the bench that culminated in his elevation to Chief Justice of Namibia in 1998 – a position he held with great distinction until his retirement. But he was new on the court then and I was not sure how he would respond to the case, which so fundamentally challenged the status quo. I thought he could be a possible swing vote on the court, however.
Shortly before the start of the proceedings, the second-most senior member of the government legal team, Louis Harms,29 later a prominent judge in South Africa, took Arthur aside to say that the government would no longer apply for the special costs order that had been threatened against me. Arthur said he seemed to distance himself from the stance of the Government Attorney in that respect. Arthur was not surprised that he would have felt uncomfortable with the Government Attorney’s approach. He had served with him on the General Council of the Bar in South Africa and respected his professionalism.
The leader of the government legal team, the well-known Pretoria senior counsel, William de Villiers, was a more regular choice for the government in political cases and was widely known for his right-wing leanings. This became more evident to us in Namibia in 1989 during the implementation of the UN peace plan (Security Council Resolution 435) when he appeared for some politicians backed by the South African regime and its security establishment in seeking an injunction against political activists I represented