Death, Detention and Disappearance. David Smuts
– emerged of security police interference with the defence, hence the application to enter evidence to that effect on the appeal record. Maisels was magnificent in exposing the conduct of Capt. Nel (who, despite this, was subsequently promoted and later became a brigadier in the security police in the late 1980s). Such disgraceful conduct was rewarded in the security police. To them, the end justified the means, as this book will demonstrate.
The appeal succeeded the following year.14 The Appeal Court in Bloemfontein, the highest court of appeal at the time for cases from Namibia, cast aside the convictions and sentences in March 1977 because the infiltration of the defence amounted to such a gross violation of the principle of attorney–client privilege that lies at the heart of a fair trial. That court rightly found that this gross irregularity resulted in a failure of justice.
The forensic skills of Maisels were compelling to observe. But the context of the trial and the surrounding events made even more of an impression upon me. It was my introduction, even if vicariously, to defending dissidents in Namibia. But there was an enforced two-year delay before I could do so in person, caused by compulsory military conscription.
I had been in the first group to be called up for two years of compulsory conscription at the end of my law studies in November 1977 – a very grim prospect. I thought about leaving the country, but decided this was not viable as it would exclude any future involvement for me at home. I reported in January 1978, completed basic training and a short officer’s course, and became a law officer in May of that year. As the only LLB with a Windhoek home address, I was posted to Windhoek, to appear in courts martial and review disciplinary proceedings.
One of my first duties was to defend a corporal who had absented himself from a newly established mixed-race battalion. He was a former foot soldier for the FNLA faction who had fought in Angola’s civil war. The FNLA had been backed by the CIA and SADF and, by then, was all but crushed. He had been recruited by the SADF and allocated to 911 Battalion – a unit comprising mostly Namibian volunteers and conscripts of colour, and a few Angolans, led by white SADF officers. My client was repelled by the discriminatory practices within this battalion and had stayed away, but was caught. Charged with being absent without leave, he could not dispute his absence – but he decided to give evidence describing the racially abusive treatment he had experienced at hands of his white superiors, which had offended his dignity. This did not go down well with the colonel in charge of the legal department in Windhoek. He was the presiding officer and soon adjourned the proceedings to call me aside.
‘What do you think you’re doing?’
‘I’m defending this person to the best of my ability.’
‘Se gat, man! [Like hell, man!] You can’t be serious with this kind of evidence. You’re looking for shit. I’ve adjourned for you to reconsider.’
‘Colonel, my instructions are to place this on record as it is all relevant for sentence.’
‘You have one last chance to reconsider and drop this line of questions.’
‘There is nothing to reconsider. It’s my client’s choice and I find it relevant.’
He stormed off to resume his presiding position. My client was punished and his sentence was reduced on appeal to a dishonourable discharge – his preferred outcome.
Within a week or so, my own punishment was also determined. The colonel summarily announced to me that I had been transferred to Owambo and instructed me to report to the officer commanding 1 Military Area at Oshakati, Colonel Kat Liebenberg. A few days later I sat in Liebenberg’s office. He was blunt: ‘I have no need for another law officer and didn’t ask for one. There are two at my headquarters and no need for any more. I don’t know what to do with you. But I’ve got a meeting with my four battalion commanders later this morning and one may have some use for you. Otherwise, I’ll have to send you back.’
I hung around and was later called in again. A commandant was in Liebenberg’s office. ‘This is Cmdt Benade, OC of 53 Battalion. He says he can use you for disciplinary issues and boards of inquiry. Get your things and go with him to Ondangwa.’
It was an infantry battalion, a fighting unit with an armoured column attached to it. I did not fit in. One of my first boards of inquiry concerned the death of an unarmed civilian shot in his car by soldiers manning a temporary checkpoint. They had opened fire because the vehicle had been moving very soon after sunset. It had not got dark yet. The driver had not been challenged, nor had there been any attempt to fire warning shots. He had been struck by more than one bullet. The shots had all been clustered around the driver’s position he occupied. I was required to meet the bereaved family members and soon understood their profound and justified grievance with the senseless killing. In stark contrast, there was an arrogant sense of entitlement and justification on the part of the military. Their stance was that he had, strictly speaking, contravened the curfew and could have been a terrorist. Attitudes to local civilians on their part (varying only in degrees between deadly indifference that negated their humanity to more intense race-based enmity) were to be a recurring theme in my next few months there, and later in my years of practice. I later investigated other instances of abuse of local residents and recommended that some officers be prosecuted by court martial. Although my OC, Cmdt Benade, generally backed me up and did not approve of abusive behaviour towards local residents, I became unpopular with the other officers in the unit and soon became regarded as a nuisance. Liebenberg was later promoted to brigadier and, I suspect, suggested to my colonel that I should be returned to Windhoek. And so I was recalled to Windhoek, not to be replaced.
A few months after my return, and while my colonel was on leave, the commanding general (Geldenhuys) called for an inquiry from the colonel’s office. In searching for the file, I came across another, marked ‘top secret’. A cursory glance showed that it concerned the summary execution of four unarmed civilians in northwest Owambo. They had been approached about the movements of insurgents and seriously injured in the assaults that accompanied the questioning. The captain in charge of the platoon decided that they should be executed and buried in a shallow grave a few kilometres north, just over the Angolan border. The platoon members were sworn to secrecy.
These appalling events would take their toll on a young conscripted member of the platoon, however. Deeply distressed by this bloodbath, he broke down to the visiting Chaplain General when he was touring the operational area. The chaplain sought an inquiry from Gen. Geldenhuys, which my colonel was appointed to conduct. The colonel recommended no disciplinary action, and a cover-up. His reason for this was to avoid the political fallout that would result from the exposure of the cold-blooded killings of those civilians. The general signed off on that. This so shocked me that I immediately reported the matter to the SADF’s chief legal officer, Brig. Pretorius at SADF headquarters in Pretoria. I simultaneously decided that I would fly to Cape Town over the following weekend to raise this case with an opposition figure I respected in South Africa, Frederik van Zyl Slabbert, if Brig. Pretorius did nothing. My concerns on that score were soon dispelled. He caught the first available flight to Windhoek. When I fetched him at the airport, we proceeded straight to the Attorney-General, Donald Brunette. Both Brunette and Pretorius agreed that prosecutions must proceed. They agreed on a general court martial for murder in Pretoria, because part of the crime had been committed in Angola. The captain, a lieutenant and two non-commissioned officers were charged and convicted of murder in the court marital. The officers received lengthy terms of imprisonment. They later had some success on appeal, which was presided over by a judge.
My colonel never returned to his office. He was boarded on health grounds and retired early. Brig. Pretorius told me he could not trust such terrible judgement. I was to hold the fort until a replacement was found. In the next few months, and prior to a new colonel’s appointment, another serious board of inquiry into military excesses was to pass my desk for me to advise the general on a recommendation. My advice was not accepted by the military command, which again preferred a cover-up. Again, I contacted Brig. Pretorius. Again, he flew to Windhoek urgently to meet the second-in-command about the matter and insisted that my advice be accepted. It had his full backing, and was begrudgingly accepted. My standing within the command increased. I was even invited to travel by air with the head of operations, Colonel Eddie Webb, to the