Death, Detention and Disappearance. David Smuts
were never charged with any offence.31 During his detention, I tried to have access to Hartmut on the pretext of work and the need for his input on certain of his cases, which I was then attending to. This was refused point-blank. After some negotiations, I was permitted to send him a few notes with questions about his cases. I included some gratuitously coded messages of support, which he later told me he appreciated.
The arrest and detention of the 37 at the braai received wide international media coverage and condemnation, both inside South Africa and abroad. The South African minister of police distanced himself from the arrests, given the bad timing. The arrests had been made at a Catholic church school just north of Windhoek. His state president was about to meet the Pope when this had occurred. The arrests were said to be an initiative of the police chiefs inside Namibia. Not surprisingly, the arrests went down well with the state-controlled media in Namibia, and those who supported the security forces of the apartheid state such as Die Republikein, the DTA mouthpiece.
The Windhoek Bar Council, led by Bryan O’Linn, issued a statement condemning the arrests and detentions. Under his leadership, that body, which represented practising advocates, became increasingly vocal in criticising human rights abuses.
The Law Society, the larger professional organisation representing all attorneys, was shamefully reluctant to speak out on those issues. I was then its secretary and formally asked the elected council to follow the lead of the Bar Council and condemn the arrests, which included one of their members, Hartmut. The Council conferred and declined to do so. I resigned my position, as did John Kirkpatrick, then vice president, who had consecutively served on the Council for 33 years. I respected his stance, given his initial view of the arrests. His stand came at much greater personal cost than mine. It was shortly after this that institutional work was taken away from the firm because of the work we were doing. The Law Society continued on its path of acquiescence until independence. It was, after all, the body that had failed even to discipline the lawyer from Lorentz and Bone, Anton Smit, who had been complicit with the security police in the Mushimba case and leaked the defence case to them. Not even a reprimand was forthcoming from the Law Society for such disgraceful conduct. (An application to strike him off the roll struck me as the more appropriate measure). He was naturally fired by Lorentz and Bone and moved to a small town in the Orange Free State in South Africa to continue practising there.
The appeal process took time. The record first had to be prepared. Although a simple task, weeks passed before it was ready to be dispatched to the Appeal Court in Bloemfontein. After a few months, these formalities were met.
In the meantime, international pressure mounted for the release of the remaining 74 Mariental detainees. (There were a few other detainees captured outside Namibia in addition to the remaining 55 seized on 4 May 1978.) The best efforts of Tony and Gwen to keep the story alive were strained as there were simply few developments of a newsworthy nature on which to hang further airing of the issue.
Without any forewarning or prior notice of any kind to us, on 18 October 1984 the rest of the detainees were transported by military aircraft to Ondangwa in northern Namibia and released at Oshakati. This was probably done to avoid another welcoming braai and an accompanying celebration by Swapo in Windhoek. Their release was announced with a flourish on the evening state-controlled television news by the authorities. I indicated to Samson that those released may wish to consult about potential claims in case we won the appeal. Despite remaining on record for five of the remaining detainees, I was never informed of their release by the authorities. I had also applied for access to all the detainees we represented at an early stage – before the court hearing. This had been refused. No reasons were ever given for that refusal. Some of the detainees arranged a meeting with Hosea and me after the final releases to thank us warmly for our efforts. Some instructed civil actions for damages, which were eventually settled.
I did not meet either of Josef Katofa’s brothers who were detained at Mariental until some months later when Nikodemus Katofa called on me in early 1985. His purpose in approaching me was to enlist my help. Josef had, entirely unbeknown to me, gone missing and was thought to have been detained in May 1984 already, shortly before the case had been heard in court. The suspicion in the community was that the reason for his detention had been his active and crucial participation in preparing the application. I set about enquiries concerning him, which ultimately led to court proceedings.
The appeal still went ahead, even though everyone had been released. It could still proceed because it raised issues of great public importance about the issuing of certificates under section 103 ter, the powers of the SADF and detentions under the 1979 amendment. But the date of hearing could no longer be expedited and we had to wait for more than two years for it to be heard.
The appeal was eventually set down for hearing on 23 February 1987. The then Chief Justice of South Africa, Pieter Jacobus Rabie, was a conservative and supporter of the apartheid government. By this time, he knew to allocate his most reliable conservative colleagues to security-related appeals for the preferred outcome. He presided over a carefully selected, conservative, five-member bench. They listened attentively to Sydney’s argument, asking very few questions.
The government respondents were then represented by a different team, led by a controversial figure, Piet van der Bijl. He had been a government legislative drafter who worked in the AG’s office in Windhoek, having been brought in from South Africa. He had, we suspected, been the author of the 1979 amendment, as well as a range of other draconian security legislation in Namibia. The IG, installed in 1985, had astoundingly nominated him to be appointed as a judge in Namibia to preside over a constitutional council. Two members of the IG’s cabinet, who were not as pliant in adhering to Pretoria’s plans for Namibia as the others, opposed his appointment. A curious choice, a senior Pretoria civil servant with a murky human rights background, to preside over a council to come up with a constitution for the country. A farcical situation developed as those two cabinet members sued their cabinet colleagues and the apartheid government in a widely publicised court application to set aside his appointment. The case became settled. The South African government and AG and the compliant cabinet partners, together with Van der Bijl, agreed that his appointment be withdrawn and that he be given a handsome financial settlement. He then went to practise at the Pretoria Bar as a senior counsel. This status is usually earned by those in practice who are nominated for this distinction by their peers after a rigorous selection process. But not in his case. He had not practised at the Bar. Instead, he had worked his way up within South Africa’s Justice Department, culminating in his appointment as a senior drafter specialising in security legislation. His loyal service to the apartheid state was rewarded by senior counsel status.
Getting to one’s feet after what was a vintage Kentridge performance would invariably be a daunting task. The contrast between them could not have been starker. Van der Bijl’s delivery was ponderous; the court repeatedly pounced upon his lack of precision in his formulation of propositions and pulverised him with a series of questions about his defence of the court’s judgment on section 103 ter. He grasped in vain for answers to those questions. They did not interrupt much, however, when he turned to the legal justification for the detentions and the narrow positivist interpretation of the 1979 amendment adopted by the local court, which he enthusiastically supported.
The unanimous judgment of the court was handed down a month later on 25 March 1987. It overturned the Windhoek court’s approach on section 103 ter, upholding Kentridge’s argument outlined in his study at our first meeting – that the state president could not invoke that power in proceedings relating to an ongoing wrongs like detention. The court was unequivocal in doing so. But it found that a detention order under the 1979 amendment did not require pre-existing lawful custody and that the further detentions were lawful after the AG had issued his orders a year after the detainees had been captured. This conservative bench had earned the reputation of seldom finding against the apartheid state in security matters. They duly delivered in this case too. Overruling the Windhoek court’s executive-minded approach on section 103 ter did, however, set a significant precedent, even though we had lost the appeal itself because the detentions were found to be lawful.
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