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A harsh and hostile environment

Politicians are often fickle and feckless in the promises they make. Sooner or later, a promise solemnly undertaken is deviously denied or undermined to avoid or delay fulfilment. South Africa’s Prime Minister John Vorster was no different. The undertaking made by the South African government in April 1978 to implement the UN peace plan for Namibia was soon in tatters.

The prospect of self-determination and justice for Namibia, so long denied, promised by the UN peace plan (later embodied in Security Council Resolution 435), entailed free and fair elections and independence under UN supervision. The South African cabinet was said to be divided when Vorster made that promise on 25 April 1978,4 with the military balking at the idea. Its decisive response was swift and came nine days later: Operation Reindeer, a massive military incursion into Angola on 4 May 1978, the intended body blow to the implementation of the UN peace plan. It was a deadly two-pronged assault – on a Swapo base at Cassinga some 250 km into Angola, and on Chetequera some distance away, a cluster of Swapo forward base camps between 8 km and 20 km inside Angola, just north of the Ombalantu area of western Owambo. Swapo casualties – mostly refugees – were heavy. This operation not only succeeded in scuppering the UN peace plan, but also signalled that the military had gained the upper hand in policy and decision making for Namibia at the expense of the diplomats supported by Hendrik van den Bergh, the head of the Bureau of State Security, known as BOSS.5 Later that year, this military dominance was cemented when Vorster was to resign over the information scandal, bringing P.W. Botha to power.

The ensuing militarisation of South African rule in Namibia was to have a profound impact upon human rights and the law in the decade which followed. This book is about that impact over that period, starting with a case that arose from Operation Reindeer. It is about the assertion of rights and the law in a harsh and hostile environment against the backdrop of increasing lawlessness, including extrajudicial killings and criminal conduct by the military and security establishment, a descent into a darkness in which the military ultimately discarded the law and even suborned when it did not suit them.

The repressive legal landscape in Namibia at that time shared several similarities with the system in place within South Africa. Apartheid policies were, after all, also applied to Namibia. They were scrupulously defined by law that was central to their rigid enforcement. Law was also used to deal with dissent. Several of the most oppressive laws were applied to Namibia, such as the Terrorism Act,6 an earlier version of the Internal Security Act,7 and the Police Act8 and Defence Act.9 There were, however, some significant differences too. Unlike the ANC and PAC in South Africa, Swapo was not a prohibited organisation. Following the adoption of UN Security Council Resolution 385 (the forerunner to Resolution 435), a number of discriminatory laws were repealed when the first Administrator-General (South Africa’s supreme representative) was appointed in 1977. These included the Prohibition of Mixed Marriages Act,10 the Immorality Act,11 separate amenities and segregated areas legislation. But the fundamental basis of apartheid through its separate ethnically based administrations with their profound inequality, especially in education, as well as access to land, remained in place until independence. Even the installation of the two interim governments by the apartheid regime did nothing of substance to change or even ameliorate that.

Another distinguishing feature was that the northern areas were under effective martial law, having been declared security districts under the notorious Security Districts Proclamation, 1977.12 These areas were previously collectively referred to as the Police Zone (Owambo, Kavango and Caprivi), where more than half the population lived. A ruthlessly enforced curfew was in place in Owambo. That proclamation also gave the security forces (both the police and military) wide powers of arrest and detention. Any security force member of any rank had the power to detain for up to 96 hours. That was soon extended to 30 days. Later, the AG gave himself the power to extend those detentions indefinitely. Detainees were denied access to family and lawyers. They were also denied the ability to receive letters and have any contact at all with the outside world.

The enforcement of martial law in the northern areas was primarily in the hands of the SADF, an occupying army that had military bases of varying sizes spread across the entire area. Military checkpoints were set up on most major and several minor routes in the area, to be negotiated by local residents with varying degrees of indignity, depending on the disposition of those manning those points. Military patrols would search for and sometimes pursue insurgents without regard for people’s homes and livelihoods. The sheer terror and lawlessness in the northern areas escalated even further and took a more sinister turn with the establishment of the soon to be feared paramilitary police unit called Koevoet (the Afrikaans word for ‘crowbar’) in January 1979.

Those living south of the northern war zone were able to live their lives largely unaffected by these military activities, although this was to change towards the end of the 1970s as remote white farms and some urban areas were also sporadically targeted by insurgents.

This legal setting and growing militarisation held little promise of a smooth and comfortable professional journey for a new entrant to the legal profession at the beginning of 1980 whose prime purpose was to defend those who had come into conflict with the apartheid state. It was instead to be a bumpy yet buoyant ride, unpredictable for the most part and mired by an incremental descent to lawlessness coupled with covert criminal conduct on the part of the military and security establishment.

During my very early teens growing up in South Africa, I recall becoming vehemently opposed to apartheid at a very young age. By my early high school days I had become determined to study law to defend people who challenged the apartheid state. Although my parents were not politically active, they were unambiguously against apartheid and encouraged an enquiring mind. I read widely and, from a young age, developed an intense interest in politics.

My ideal to represent clients charged for political offences by the regime was powerfully reinforced by an experience in my second-last year at high-school in 1971. I had been able to attend a single day of the celebrated political trial of the Dean of Johannesburg on charges under the Terrorism Act, which took place in Pretoria, where I spent my high-school days.13 In a dramatic afternoon session, I observed the illustrious senior counsel, Sydney Kentridge, demolish a security police brigadier in a carefully constructed cross-examination, ensnaring the brigadier in his own web of deceit and contradictions until his version seemed to collapse. It was riveting. I was inspired and would be hooked.

I wanted to become a defence lawyer.

But my life was to take a new turn the following year. I was still in high school when my father was transferred to Windhoek to take up the position of Surveyor-General of the then South West Africa. (The name ‘Namibia’ was adopted by the General Assembly of the UN in 1969 and had been used increasingly since then. I used the term ‘Namibia’ in my practice in the years covered by this book, hence my use of the term).

I instantly took to my new home. The downtown area of Windhoek had a distinctly different feel from Pretoria. It was more racially mixed. Black citizens were not effectively excluded from Windhoek’s central shopping area and made to feel as unwelcome as I felt was the case in downtown Pretoria at that time, even though white political attitudes were very similar in both places in support of apartheid policies. Namibia’s unique status in international law added to its allure.

During my university years, it was my good fortune to attend a master class in cross-examination by another eminent South African senior counsel, Issy Maisels, which also had a profound impact on me. It was during my mid-year university break in 1976 and the setting was the Windhoek High Court.

At the end of a lengthy trial of Swapo activists under the Terrorism Act earlier in 1976, it was discovered that the Windhoek law firm defending them had been infiltrated by the security police. A partner called Anton Smit and Mrs Ellis, a secretary, had been recruited as security police informers and had, throughout the trial, deliberately and actively leaked key elements of the defence case to the security police who would in turn inform the prosecution. The firm applied for a special entry in the trial record to reflect this.

Issy Maisels was brought in to lead the legal team in the application to place evidence to this effect on record. It entailed cross-examining a security police captain named Nel and his co-conspirators, who had so fundamentally undermined the justice system. The defendants in that trial included Aaron Mushimba, a prominent Swapo member and brother-in-law to then Swapo president Sam Nujoma. He and three of his co-accused had been convicted under the Terrorism Act. Mushimba and a co-accused had been sentenced to death, and the others to terms of imprisonment. (Mushimba had been sentenced to death for allegedly providing a Land Rover vehicle to Swapo activists for transporting persons intending to undermine and overthrow the administration in Namibia. To make matters worse, leave to appeal was refused by the presiding judge but later granted on petition to the Chief Justice of South Africa.)

After conviction and sentencing, suspicions – and, later, evidence – 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 northern zones so that I could attend to a board of inquiry while he attended to some meetings of his own there. En route, we stayed overnight at the same suite in Grootfontein and played several hands of bridge well into the early hours of the next morning with his second-in-command and the head of air force operations in Windhoek. Webb’s name was to crop up just over ten years later as the SADF general in charge of special operations, which included command over a covert group curiously called the Civil Cooperation Bureau (CCB) that was responsible for my friend Anton Lubowski’s assassination in September 1989.

Possibly because I had stood up to the command, at the end of my two-year period of national service I was promoted to the substantive rank of captain. I was made to understand that I was the only conscript in my intake to have received such a promotion. There still remained the obligation to do eight 30-day camps, to be served annually, which was to make life and practice more complicated than things already were.

My two-year stint had seen my political views undergo a change from liberal to a radical rejection of the status quo. I was firmly against the war and considered South Africa’s presence in Namibia illegal.

The firm that had defended Mushimba and his fellow defendants was Lorentz and Bone. It was the only firm that defended political activists at the time. They had a vacancy in January 1980, which arose following the departure of Anton Lubowski, a university friend since 1973. Unlike me, he had put his compulsory military conscription behind him before going to university. While I had been caught up in mine, he had completed his two years of articles of clerkship (the training period to qualify as an attorney) at the firm, but had not passed the attorneys’ admission exam within those two years. He decided to do pupillage as an advocate instead. He later became a prominent member of Swapo, although he was then very active within the Namibia National Front (NNF), which was also firmly opposed to the apartheid regime, its policies and its favoured politicians who formed part of the ethnic and homeland structures. Anton strongly recommended articles at the firm because of the political work being done there and its potential. Our friendship grew stronger in the years that followed.

On 1 March 1980, I started my two years of articles with Lorentz and Bone, articled to the senior partner, John Kirkpatrick, the leading commercial lawyer of his time in the country. He ably represented the leading transnational mining concerns operating in Namibia. The firm was hierarchical but liberal. The partners all opposed the apartheid policies imposed upon Namibia and believed in defending those who opposed the system. That was exceptional during those times. The overwhelming majority of the white community, then comprising about 8 per cent of the total population, strongly supported the apartheid state and the imposition of its policies on Namibia. The partners in Lorentz and Bone paid for their principles as many conservative white clients took away their business and caused their institutions to do so as well. For instance, the municipality of Windhoek, then dominated by white Afrikaners, took away much of its lucrative property work from the firm as a consequence of our representation of Swapo insurgents and activists in political trials.

During my initial two and a half years with this firm, I represented Swapo activists in their brushes with the law. I had developed a special interest in detention without trial and the myriad laws that facilitated indefinite detention, typically without any access to lawyers or family. I had seen that opponents of the apartheid state in Namibia were seldom put on trial. Instead, the authorities detained the regime’s opponents for lengthy periods. No major political trials took place during this period or during in the following year while I was pursuing postgraduate studies on scholarship in the United States. There was, I suppose, hardly any need or incentive to put people on trial if they could be neutralised by detaining them indefinitely. As John Dugard explains in his seminal work Human Rights and the South African Legal Order,15 the South African state would resort to trials of dissidents primarily for propaganda purposes – for internal as well as external consumption. This was also the approach in Namibia (by the self-same security apparatus) – a fastidiousness in going to great lengths to employ the powerful array of punitive measures at their disposal and to be seen to be relying upon the law in dealing with dissidents.

The distance from the immediacy of practice that a year’s postgraduate study in the US had afforded me (in 1982/3) gradually gave rise to a realisation that I should shift my focus towards finding ways to mount assertive challenges to detentions and oppressive practices, seeing that my clients would seldom face trial. Intense critical discourse with my fellow students from diverse legal systems and backgrounds assisted in crystallising my ideas.

Trials under the Terrorism Act were heavily weighted against defendants (and justice). The accused were invariably detained for several months without access to lawyers or their families. This meant that torture and ill treatment, then routine, could and would mostly go undetected. Witnesses, often accomplices or informants, were also detained and promised release if their testimony satisfied their incarcerators. The statutory offence of terrorism was framed widely and also included an inverted burden of proof. The effect was that defendants would need to prove their innocence, instead of the universally accepted standard of guilt being established beyond reasonable doubt.

The composition of the courts also undermined notions of fairness. Some, but not all, of the judges who were selected to preside in these earlier cases in Namibia had been ardent supporters of apartheid, rewarded for their loyalty with appointments as judges to the court in Windhoek.

There would be little prospect of a fair trial under these circumstances. This was to change in the 1980s, however, with judicial appointments increasingly made from the ranks of local lawyers, making a significant difference.

The inherent unfairness of political trials did not mean that defendants should go unrepresented. As long as they and their families wanted representation, which they did, there was no doubt in my mind that they should have it. Their defence was to be seen within the overall context of an unjust legal system, and the need to expose this. Necessary as it was, defence work in infrequent trials was not enough.

My focus was to shift away from defence work to finding ways to tackle detentions head-on instead of waiting for the unlikely occurrence of our clients being charged.

I no longer saw my role as primarily a defence lawyer. It was rather the pernicious system that should be put on its defence, in its various facets, by seeking to use the law to bring about accountability. A more assertive stance was required against detention laws and those stifling dissent and delaying progress to self-determination.

This book concerns some of the cases and work I was privileged to become involved in over the years, in this context of pursuing a more assertive approach, which would require adapting at times to meet the impact upon the law of increasing militarisation and the authorities’ increasing subversion of the law. This despite the attempt to mask this trend by packaging it in the veneer of a more benevolent multiracial front under the Interim Government (IG) installed by Pretoria in mid-1985. The inclusion of a bill of rights in its empowering proclamation promised much, but delivered no real change in human rights abuses and the fundamental inequality that apartheid policies brought about and whose core remained firmly in place with the separate ethnic administrations and structures until the eventual implementation of the UN peace plan in 1989, which coincided with the demise of P.W. Botha and, eventually, of the malevolent military edifice that surrounded him. The cases illustrate how the ultimate control in Namibia remained with the security establishment, whose abuses intensified and later became more sinister, resorting to covert criminal conduct. The first of these cases following my return from the US concerned uncovering the secret internment without trial for some six years of over 100 Swapo cadres captured in Angola in the course of Operation Reindeer. It was to be a watershed, and an ominous portent of what was to come.