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Secret – and indefinite – internment

Late one night in mid-February 1984, there was a quiet yet persistent knock at the door of the small garden cottage I rented in suburban Windhoek, a creatively converted double garage at a discreet distance from the main house. My friend and colleague, Hosea Angula, and Samson Ndeikwila of the Council of Churches in Namibia (CCN) quickly entered, accompanied by another man, introduced as Bennie Shilongo, who slid in behind them. He looked around uneasily. His eyes continually shifted their gaze, alternating between the surroundings and my interaction with Hosea and Samson. He seemed intrigued by Hosea’s familiarity with the surroundings: Hosea made his way straight to the fridge, and took out and opened a few beers, while Samson, with equal ease, engaged in casual small talk with me.

By the time we sat down, Bennie, with beer in hand, was discernibly more comfortable. After Samson amplified his introduction, hinting that crucial linking evidence was at last at hand, Bennie soon began to speak freely about going into exile and his capture by the SADF on 4 May 1978 at a Swapo transit refugee camp called Vietnam at Chetequera in southern Angola. He said that the camp had been pulverised by a powerful attack by an armoured column, preceded by aerial bombardment. Heavy fighting had ensued. Several people had been killed. After about four hours of intense fighting, resistance had finally been quashed and an eerie stillness had descended. Along with about 200 other refugees, he was rounded up, taken prisoner by the SADF and brought back to Namibia.

The official accounts differ about the number of people killed in this attack.16 The network of camps around Chetequera constituted Target Bravo of the SADF’s Operation Reindeer. Target Alpha, the primary target, was a Swapo base at Cassinga. The accounts of numbers of those slain at Cassinga do not differ as much as those at Chetequera. According to the Swapo reports at the time, 615 Swapo refugees were killed at Cassinga and 100 at Chetequera.17 The official South African account puts those figures at 600 and 248 respectively. This mass slaughter is annually commemorated as a public holiday in independent Namibia, although the focus is mainly on the Cassinga massacre, with little said about those slain and captured at Chetequera.

It would appear that no one was taken prisoner at Cassinga. Several hundred Swapo refugees were left there, injured. The South African troops were ferried back by helicopter from a point near Cassinga to their bases close to the Namibian border. There was no space on board the helicopters for prisoners.

According to the South African account, 202 Swapo members were captured at Chetequera. Sixty-three of them were said to have been released on 29 May 1978 and 118 were transferred to a rudimentary internment camp at Mariental.18 These figures roughly accord with those provided to me by former detainees. I have not encountered an explanation for the 21 persons unaccounted for in this version. It is possible that some died, while others may have been released even earlier. The official Swapo version is that 270 refugees were taken prisoner.19 Most detainees put the figure at about 200, however. Presumably, several refugees were unaccounted for in the turmoil that followed the attack. Some may have been able to flee, and may even have got back home again. Others may have died; these facts were not known by Swapo at the time.

Bennie had left northern Namibia along with several other young Namibians from his area about a week before the attack on Chetequera and their capture. After crossing the border, they had made their way to the Vietnam base at Chetequera where they had met up with other refugees and been welcomed by Swapo cadres. This base, some 20 km inside Angola, formed part of a network of forward bases of varying sizes in the area, ranging from 6 km to 28 km inside Angola as supply points and as reception or transit centres for Namibians going into exile.20

Bennie had gone into exile in the hope of studying further and bettering himself. Prospects in Namibia for him at that time were bleak. He had left school early and migrated to Windhoek in search of employment. The best he could do was to become an ice cream vendor, on a bicycle, ringing his bell to offer his wares in the small city centre, the more affluent areas and at sporting events. His exile was short-lived, however, with the SADF attack on the Vietnam base occurring within a week of his arriving there. Bennie was released in the group of 63 captives on 29 May 1978. Presumably the remaining detainees were considered more hard-line; one can only speculate about the motivation, as no reasons have ever been given. Some time after his release, Bennie was employed as a driver at the Otjihase copper mine near Windhoek, a position he occupied at the time of our meeting.

Bennie dispelled the myth repeatedly put out by the South African propaganda machine and slavishly disseminated by the local media that youngsters in Owambo were violently abducted and taken away at gunpoint by People’s Liberation Army of Namibia (PLAN) fighters every time they left in droves to join Swapo. Most of those perpetrating and perpetuating this distortion (assuming they believed it) failed to understand or even consider the deep disillusionment felt by young people at massive inequality along racial lines and the lack of opportunities facing them, let alone the rapidly growing political consciousness that motivated these departures. Political consciousness had risen sharply following the national strike in 1971 directed at the hated SWANLA contract labour system, which denigrated people to mere labour units and severely restricted their mobility.

Resentment at the discriminatory education system and the regime also escalated dramatically among young people after the 1976 Soweto uprising in neighbouring South Africa. Namibians were subjected to fundamentally the same form of Bantu education that continued until independence, despite the installation of the IG by the apartheid regime in 1985. Indeed, despite its professed commitment to doing away with racism and racial inequality, the IG was party to its perpetuation by maintaining the racial and ethnic segregation in schools and the profound disparity on education spending. Ten times more was spent on the education of children in segregated white schools compared to children in Owambo in 1986.21 The discrepancy was probably considerably worse when Bennie left school in the mid- to late 1970s.

Bennie had a friendly and open disposition and spoke with ease and coherence about the events. He confirmed the capture of those in the original list of thirteen names of detainees I had obtained the previous November, initiating my inquiries, which started the case. He wanted these friends to be released, as well as the others captured with him at Chetequera. He was now prepared to come forward, assist with the challenge and make an affidavit in support of an application for the release of the remaining 118 detainees captured with him and secretly held near Mariental. He confirmed that the detainees mentioned in my November letter to the military had, in fact, been captured with him at the Vietnam base. They had been brought back to Namibia and held in a makeshift tented internment camp adjacent to the Oshakati military headquarters, surrounded by high barbed wire fences with watchtowers at intervals. Later, corrugated iron structures, which the military called the ‘hokke’ (cages), had been erected there.

Most of his fellow captives had not been released with him on 29 May 1978. He had recently heard from some of their families that they were being held at a military internment camp near Mariental after some had been permitted visits. He also said that, during his detention, he and other detainees had been tortured, including by way of electric shock treatment. He had been blindfolded for most of his detention but at one point had managed to see that one of his fellow detainees, Nikodemus Katofa, had been suspended for long periods by his arms, which were tied with wire above his head, his legs unable to touch the ground. He also spoke of frequently hearing screaming from his fellow captives as they cried out during torture sessions.

Bennie’s account represented a breakthrough in unearthing evidence of the secret detention of the remaining captives from Chetequera – then held for almost six years without charge.

The idea of challenging their secret detention had come to me while I was doing postgraduate studies in Cambridge, Massachusetts, in the US spring of 1983 – some nine to ten months before. I had been invited to a seminar organised by the UN Council on Namibia at Columbia Law School in New York to speak on a panel about Namibia’s position in international law. My task was to make a brief presentation on the repressive legal framework and how it operated against those who pressed for self-determination, and to speak about legal practice there. I provided damning details on the former and a few brief remarks on the latter. I had only recently qualified as a lawyer.

Preparing for my talk afforded me the opportunity to look at detention laws afresh from afar. This was a fruitful exercise. The detention power principally invoked by the South African security forces was in Security Districts Proclamation AG 9 of 1977 (AG 9) enacted by the first Administrator-General (AG) shortly after his appointment in 1977. It authorised any member of the security forces (both SADF and police) of any rank to detain people without trial. They could initially do so for up to 96 hours, soon extended to 30 days. In 1979 AG 9 was amended by the AG to authorise himself to order the further and indefinite detention of detainees already in custody. This amendment was embodied in section 5 bis.

It struck me that this amendment had probably been included in a bid to legalise the incarceration of the Mariental detainees captured in Angola, who became known as the Cassinga detainees – a slight misnomer as they were captured at Chetequera but as part of Operation Reindeer, which was primarily directed at Cassinga.

Rumours of their capture and subsequent detention had circulated for some time. But these were not confirmed by the SADF or the authorities. Indeed, the detainees were held at a secret location. Shortly before I left for my studies in the US in 1982, there was some talk of them being held in an internment camp near Mariental, about 270 km south of Windhoek. These accounts started surfacing after family contact with detainees was eventually permitted, at first by letter in 1981 and later in the form of visits in 1982. I later discovered that these forms of contact had been brokered by the good offices of the International Committee of the Red Cross (ICRC). But I had not received any direct corroboration of this when I left Namibia for my studies in mid-1982.

Attendance at the New York seminar was rewarded with refreshments afterwards. That was the best part, as I suppose it usually is at events like these. I did not need much persuasion to loiter a little over the tepid American beer on offer – not just because I was putting off braving the cold, grey spring afternoon to make my way back by subway to Penn Station to catch my train back to Boston. I was missing home and enjoyed the friendly reinforcement from a group of exiled Swapo members and officials. Their longing for home was understandably much stronger than mine. I could, after all, go home on completion of my studies; their homecoming seemed an incomparably remote and distant prospect. One of their number in particular stood out. He was Swapo’s then United Nations representative, Theo-Ben Gurirab, a charming and erudite man, who had spoken earlier.

Exiled Swapo members were eager for news and more recent impressions of the situation at home. Their generous encouragement in my human rights work was unequivocal, their acceptance reaffirming. But my commute back to Boston beckoned.

In the course of extended farewells and exchanging contact details, a striking African-American woman purposefully joined our circle and introduced herself in a discernible southern drawl as Gay McDougall. She wanted a quick word. Gay, too, needed to travel, but in the opposite direction – back to Washington, DC, where she worked for a respected civil rights organisation, the Lawyers’ Committee for Civil Rights under Law. Gay directed its Southern African Project, which supported those engaging in legal challenges to the South African regime. She came quickly to the point and offered her collaboration and financial support to defend those on trial. She invited me to visit her office before returning home after my studies. I spoke of my growing interest in making challenges to detentions and the laws that facilitated them, given that so few people were put on trial. I updated her on the breakdown of law in the northern areas of Namibia, with security forces acting with impunity there. Her eyes lit up when I spoke of the need to bring about some accountability for the deaths, detentions and disappearances that regularly occurred in those areas.

Our frenetic chatter continued as we strode together towards the nearby subway station. I referred to the 1979 amendment to AG 9 enacted after the Mariental detainees were already in detention, and thus questionable. I suggested to Gay that her organisation may wish to support investigating a challenge to the legality of their detention financially. It seemed viable; Gay enthusiastically agreed.

I would only return to Namibia after the summer, however, as I had landed a position of summer associate with Ropes and Gray, a leading law firm in Boston. Before eventually returning to practice at Lorentz and Bone in Windhoek in October 1983, I had a final conversation with Gay about the logistics of investigating a challenge. Gay understood that communication with her after my return home would of necessity be minimal until an application had been served. This was because telephone lines were invariably tapped and correspondence intercepted of those engaged in work against the apartheid regime. We had always suspected this and were to receive proof a few years later when my friend and fellow activist, Gwen Lister, discovered a letter in her postbox, marked ‘top secret’, from the head of the South African Police to notify the Postmaster of Windhoek of the authorisation to intercept her mail. When Gwen made this public, she was arrested and detained over a weekend on charges of contravening the Official Secrets Act for making known a classified communication.22 It seemed like something straight out of Kafka. The bizarre charges were dropped six weeks later.

Upon my return, I set about making enquiries, seeking the names of detainees who had been captured in Angola and the whereabouts of their relatives. An activist Catholic priest, Father Stegmann – who consistently provided staunch and invaluable support in detainee work – declined to give any information. He had become aware of the detentions and the location and even knew some of the names of detainees and their relatives. His church was assisting the ICRC in putting relatives in contact with the detainees. Some had even visited their detained relatives through the church’s intermediation. He had been sworn to confidentiality on the issue. It had been a condition of the church’s participation in arranging the visits. He was concerned that the privileges and the improved conditions that the ICRC had painstakingly negotiated over a long period may be withdrawn and future visits refused if I were to start stirring. A highly principled person, he considered himself bound by the oath of confidentiality he had taken. Through my work for detainees, I had also come to know the ICRC’s representative well. He confirmed the detentions too, but could not divulge any further information or provide any leads because of his position.

A close colleague on matters of this nature at the firm and a very good friend, Hartmut Ruppel, also voiced his concern that my enquiries and activism on the issue may have adverse consequences for the detainees themselves along the lines put forward by Father Stegmann, who had obviously enlisted Hartmut’s support to prevail upon me to drop my enquiries in the best interests of the detainees.

I understood why they felt this way. The security forces were often vindictive to detainees when efforts were made to obtain access to them or when there were petitions for their release. Detainees were also appallingly treated, especially in the outlying areas where there was little or no supervision and often no restraint. Conditions there were frequently makeshift and routinely subhuman. This was also the case, as I later discovered, for the detainees in Mariental. The conditions were grim for the first few years but were vastly improved from 1981 when they were moved to a new camp nearby with better facilities. This coincided with the involvement of the ICRC.

Although I respected their concerns about jeopardising the gains in detainee access and treatment, the risk of setbacks was, I believed, well worth the reward of the resultant exposure – and a possibility, even, of success. Their detention was indefinite, without even the remotest prospect of release after more than five and a half years of secret incarceration. The issue of their release would not, in my view, receive attention unless their plight was exposed and pressure generated on the issue. The detentions would also need to be justified as a matter of law.

My colleague Hosea Angula, who was doing his articles with us at the time and was later to make history as the first Oshiwambo-speaking person to be admitted as a lawyer in Namibia, was, in contrast, unqualified in his support of a challenge to the detentions. From then on, we drove the legal action together. We had become close friends from his first year at university when he had worked in my office as a student assistant during his long vacation at the end of that year. This was in the first year of my articles. He had applied for vacation work. He was interviewed by one of the partners, a well-meaning liberal man who told him to return for the outcome of that interview in the afternoon. In the meantime, the partner approached me to avoid some personal discomfort in turning Hosea down, and preferred me to do so. Sensing this, I asked for his reason. He said we had no space. Upon my further enquiry, he confirmed to me that this was the only impediment, and reiterated, ‘Yes, unfortunately you must turn him away as a result.’

It was true that there were no spare offices. I felt at the time that some sort of makeshift plan would have been fashioned for the child of a well-connected client in a similar position. When Hosea came back in the afternoon, I instantly got on with him. We first chatted about the work I was doing and his studies and the student unrest at his university. We turned to the matter at hand. I informed him that there was no space and that the firm was minded not to make him an offer for that reason. But if he cared to share my office, there would be work for him. That was the start of an enduring friendship and close working relationship. He returned to the firm each long holiday after that and joined to do his articles upon completing his studies. I was in the US with my graduate studies at the time and informed the firm that my decision to return to them could be affected if he were not to be offered a position. I did so because there was some doubt expressed by the firm to me on that score. I was told that other (white) applicants had approached the firm and had LLBs – a five-year degree course, as opposed to the four-year BProc that Hosea was then about to complete. I greatly admired Hosea’s tenacity in completing his studies at the University of the North in South Africa in what were very turbulent times at segregated black South African universities. Boycotts and unrest frequently interrupted lectures and exams. Completing a course in the designated duration was no mean feat, and took very special qualities. I expressed this to John Kirkpatrick in my correspondence with him about my own future with the firm, urging him to adopt a wider view about qualifications and the qualities of applicants. Fortunately he was persuaded.

My enquiries to my usual church and other sources in my work for information about the Mariental detainees and their relatives drew a blank. I then turned to Dan Tjongarero, a prominent Swapo leadership figure. At the time, he was Director of Communications at the CCN. He said he needed some time to follow up, and would get back to me. He, too, was excited about the idea of a challenge and promised to do what he could. About ten days later he brought his CCN colleague, Samson Ndeikwila, to see me.

Samson originally hailed from the Ombalantu area in the western part of Owambo. He had gone into exile several years before and received military training, but was later detained in Tanzania at Swapo’s instance. On his release he travelled to Kenya where he furthered his studies. He had returned to Namibia some three years previously23 and obtained employment from the CCN after its recent establishment. Samson had heard that some of the detainees were from his area. He knew someone who would possibly be prepared to assist us. He, too, needed time to make his enquiries. They would be discreetly done in person when he next travelled to the northern areas. As the detentions were secret, and not publicly acknowledged, we needed not only the names of the detainees to enquire about the legal basis of their incarceration, but also witnesses who could confirm the detentions themselves in case this was denied, seeing that the detainees were being held in secret. A witness to attest to the circumstances of their capture was also essential to provide evidence of their seizure in Angola and that they had already been incarcerated in 1979, before the amendment to AG 9 had been passed and their further detentions presumably ordered – no doubt a legislative attempt to legitimate an existing state of unlawful detention.

Within a week or two, Samson returned with a list of thirteen names of detainees. I addressed a letter on 16 November 1983 to the General Officer Commanding the SADF in Namibia, seeking confirmation of their detentions and enquiring as to the legal basis. The reply was swift. In a letter dated 23 November 1983, the military acknowledged that they had been detained under the 1979 amendment (section 5 bis), upon an order of further detention by the AG.

We now had evidence that the people on Samson’s list were, in fact, being detained. But we still had no evidence about the circumstances of their capture. Samson did not know anyone who could attest to that. He undertook to extend his enquiries over the Christmas holiday period at the end of 1983 when he visited his family home in northern Namibia. During that holiday period, I called upon a friend in Cape Town – Jeremy Gauntlett, an advocate practising there – to seek advice about bringing the case. He had been the top final-year student at Stellenbosch University in my first year and had tutored a small group of us in our first year. In 1983, he was fast becoming an exceptionally fine barrister, combining his formidable intellect with a capacity for focused hard work. I had already briefed him in a political case. He had been impressive. He gave advice about building the case to challenge the detentions. The lawfulness of orders to extend detentions of people who had previously been unlawfully captured was highly questionable; he would be comfortable arguing that case.

The breakthrough, however, only came in mid-February 1984, with Samson and Hosea bringing Bennie to meet me at my house that evening.

The next day yielded more progress. In the morning, Samson brought Josef Katofa to my office. Two of his brothers, including Nikodemus mentioned by Bennie, were among the detainees at the Mariental camp. I was to learn later that Katofa was Samson’s key contact person in establishing the names of detainees, getting in touch with their relatives and Bennie, and subsequently persuading them to make affidavits in support of the case. This he did at considerable personal sacrifice, as subsequently emerged. Unbeknown to me, he was covertly picked up by the military and detained just before the case came to court.

Josef Katofa cut a very colourful figure as he entered my office, with his confident air and exuding charisma. His flashy sunglasses were ostentatiously tucked into his thick and bushy hair on one side, just below the brim of the cream Stetson hat he sported at a slight angle to accommodate the position of his sunglasses. His brightly coloured tie competed with a shirt of even more gaudy, clashing shades. He needed no persuasion to make an affidavit. He quickly cut to the point as he had other business to complete in Windhoek before returning the next day to his small cuca shop business at Eengolo not far from Outapi, in the Ombalantu area. (These shops were called cuca shops in northern Namibia after the Portuguese beer sold at them in earlier days, when it was sourced from nearby Angola.)

Katofa confirmed that he had heard of his brothers’ capture at the hands of the South African military from Bennie. He had more recently heard from fellow members of the Uukwaluudhi community who had visited their relatives at the camp near Mariental that his two brothers were also being held there. He also made more enquiries at Samson’s request.

I promised to prepare an affidavit that same day and requested him to return by no later than 4 pm so that I could accompany him to a commissioner of oaths for him to formally depose to it. He responded by undertaking to return to my office later, but that it would be ‘past four’. Despite my repeated entreaties, he would not be tied to a more exact time. I left it at that.

True to his word, at 4.25 pm and to my relief, his flamboyant figure appeared in my doorway. We were able to have the affidavit signed before a fellow attorney in a different firm. (Affidavits must be signed and sworn before a commissioner of oaths not connected to the case. Court officials, lawyers, bank managers and police officers are commissioners of oaths. The banks had already closed by then. Court officials were no longer available for this purpose after 3 pm. If he were to have come later, it would have meant going to the police station. This we clearly wanted to avoid. It was critical to keep the application under wraps so as to avoid interference with and intimidation of other witnesses.)

Samson, Hosea and I then planned to go to the northern war zone area of Owambo urgently to take affidavits from the other detainees’ relatives. Hosea and I would stay at the Roman Catholic mission at Okatana, near Oshakati. Owing to the very sensitive nature of the case, Father Stegmann requested that we consult witnesses elsewhere, given his church’s role in arranging visits of relatives to detainees, fearing that this facilitating role would be terminated and visits ended if they were seen to be assisting with this application. We respected that.

Hosea came up with a solution. His sister and brother-in-law owned a service station at Ongwediva, some 10 km from Oshakati. It was a convenient location. It had a small back office usually used on a weekly basis for consultations by a medical practitioner who was away pursuing a specialisation. It was available for us to use. No questions would be asked of us; it was perfect for our purpose. And the presence of people waiting outside to consult with us would not attract undue attention as people often gathered at the service station to secure lifts in minibus taxis to Oshakati. These were the only form of public transport in the area.

Samson would need to bring the witnesses from the Uukwaluudhi area to the service station, a distance of about 120 km. Hiring a minibus from a car rental company to do this may have aroused suspicion and attracted attention. We decided to approach the General Secretary of the CCN, Dr Abisai Shejavali, to permit Samson to use one of their vehicles. This meeting was hastily set up by my friend, Nora Chase, who had a senior position at the CCN at the time. A church organisation minibus conveying people within the area would not be out of the ordinary. The churches had a strong hold on their members. Meetings and synods were well attended. It would be commonplace for a church organisation to transport congregants or members to a synod or a funeral or the like.

I explained to Dr Shejavali that our hiring a vehicle would no doubt invite unwanted attention, which could result in interference and harassment and may even thwart our purpose. Dr Shejavali, a courageous and greatly respected opponent to the South African occupation and its policies in Namibia, had not been in his position very long by then and was widely regarded as a stickler for correct procedures. Highly principled, he would not permit the unauthorised use of CCN vehicles or funds under any circumstances. He pointedly responded: ‘But my brother, you are not engaged in CCN work. That precludes the use of a CCN vehicle.’

I respectfully urged him to adopt a wider view of CCN work and its mandate, and gave a detailed overview of the issues raised in the case.

Dr Shejavali listened attentively. He was persuaded, and relented in the generous spirit that has characterised all my interactions with him. A CCN vehicle could be used. He went further and gave the case his blessing and his warm support, as he did to my subsequent cases and work.

Samson was to leave the next day for the area. He would spend the weekend tracking down relatives and then bring them to the service station on the following Tuesday morning. Hosea would also proceed separately, obtaining a lift to the north and arriving a day ahead of me so that he could start consultations very early on the Tuesday morning before my arrival. He could, at that stage, still travel without being under observation from the authorities. My arrival would be noticed, however. I would stick out starkly: a white civilian in a non-military vehicle, a very rare phenomenon. It was too risky for me to be observed before witnesses were already at our consultation venue.

I left my office late on the Monday afternoon and stayed over at the mining town of Tsumeb, some 450 km from Windhoek and about 250 km from Ongwediva. I arrived at the Minen Hotel at about sunset. The northern areas were declared security districts, under proclamation AG 9. Those areas were previously referred to as the police zone. You entered the Owambo area through a military and police checkpoint and gate in the veterinary fence at Oshivelo some 90 km north of Tsumeb into a military zone where martial law was effectively in place.

The curfew was rigidly and relentlessly enforced, without regard for human life. No movements other than those of security force members were permitted between sunset and sunrise. Vehicles could be – and were, in fact – shot at for a breach of the curfew, at times with fatal or severe consequences. Everyone travelling to and from Owambo would need to pass through the permanent military checkpoint at Oshivelo. There were also several other checkpoints within Owambo, some permanent and others temporary, the latter dependent upon recent insurgency in specific areas. These checkpoints caused considerable resentment for those living in the area. People were not only questioned in a disrespectful and often aggressive manner. Body searches were also routinely conducted, without regard to the dignity of those being searched. Vehicles were also searched, again mostly with contempt or at best indifference for the dignity of the occupants.

There was an all-pervasive military presence in the area, characterised by the constant movement of convoys of large mine-protected vehicles carrying heavily armed SADF troops or members of the notorious paramilitary police counterinsurgency unit known as Koevoet. At least three different variants of these vehicles were used: Casspirs, Hippos and Buffels (buffaloes). They were ever present. There were also others – mostly named after wild animals – which were encountered less frequently. Occasionally, more ferocious-looking armoured columns of highly mobile light tanks and armoured personnel carriers called Ratels (the Afrikaans word for honey badgers, very resilient, aggressive mammals) could also be encountered.

Before leaving Windhoek, I had prepared a number of draft affidavits with different permutations in typed form. This was done so that I could, for the large part, merely type in the relevant personal and other details. Of course, this was well before the advent of personal computers. I had taken along an electric IBM golf ball typewriter to make the necessary insertions and for typing other affidavits, as may be required and when I was able to do so. The mission where we would stay (like most places in Owambo) was not on any grid and dependent upon a generator for power.

After I checked in at the Minen Hotel, I took a table on the open veranda beer garden area where meals were served as well as thirst-quenching beers. I had barely placed my supper order when I recognised a familiar figure striding to the hotel’s reception area. A warrant officer in the security police. I could see from my vantage point not far off that he was checking the hotel register and speaking to the receptionist. Within minutes, he swung around to scan the dining area on the veranda. Seconds later his gaze settled upon me. He immediately made his way over to my table and greeted me by my first name with forced familiarity which irked me – a security police custom I made a point of never reciprocating. He awkwardly attempted small talk by pointing out that we were both out of town and asked where I was proceeding or whether I was in Tsumeb for a case. I was taken aback at his directness. I did not want to appear too defensive in my response. Maintaining my composure, I merely said off-hand that I had some work in the area and expected to be back in Windhoek very soon, by the night after the next, at the latest – being very vague but at the same time accurate in the sparse detail I provided. He could see that I would not be drawn further into discussion, and left as quickly as he had arrived. This came as a surprise to me. Very few people knew of my movements. Only Hosea and my trusted secretary, Anita Witt, knew that I would be staying at that hotel that evening. Neither would have readily divulged this information. I subsequently found out from Anita that a close friend with whom I had studied in the US had called from Mexico City late that afternoon. When she was informed that I was out of town, she insisted on a telephone number from Anita where she could reach me that evening. After some persistence, Anita had reluctantly given my friend the hotel’s phone number, which was no doubt picked up by the security police in their eavesdropping and then easily traced to the hotel.

I left early the next morning so that I could reach the military checkpoint at Oshivelo shortly after it opened. There were a few extra temporary checkpoints that day in Ovambo. About halfway to Ongwediva, a gaping hole in the bitumen-surfaced national road bore testimony to the low-intensity war in the area. A landmine must have been detonated there a day or two before. There was a heavy military presence in evidence for much of the way, especially from about 60 km south of Ondangwa following a checkpoint at Okatope, which was home to a Koevoet base as well as an SADF base on opposite sides of the national road.

I arrived at the service station by mid-morning to find Hosea immersed in consultation. Some twenty people were sitting in the ample shade afforded by a huge, indigenous sycamore fig tree on the premises of the service station. Hosea had been at it since quite early. Progress, he said, had been very slow, however. It had taken some time to win the trust of the people and explain what information we needed.

Our consulting room was tiny. We shared a table. At one end, I typed in the details supplied by Hosea, who made his notes at the other end while consulting the people in their shared vernacular. February falls at the peak of the summer raining season. It was hot and humid. The small fan in that cramped office was strained at its optimum speed, struggling to make any discernible difference. After some time, I became concerned at our rate of progress. Each person spoke at considerable length to Hosea. Sometimes it would eventually turn out that they were not related to a detainee – or, if they were, they had not visited their relative. But all this took time to establish. We had decided to take affidavits only from those who had actually visited detainees or from relatives of those detainees whose detention had been admitted by the military in correspondence with me.

We both felt that it was crucial to have at least three duly signed affidavits that afternoon and to complete the rest the next day after typing them overnight. We were concerned that the military or the security police – or, worse still, Koevoet – may become aware of our work and that witnesses may be interfered with overnight. Other practical difficulties also stood in our way. There were no lawyers in full-time practice in that area. The only commissioners of oath whom we could approach with some degree of confidence were the branch managers of the two major banks in Oshakati. It was, of course, out of the question to have affidavits commissioned at the Oshakati Police Station. But the banks closed early – at 3:30 pm. The only alternative was the Postmaster at the Oshakati Post Office. We would have to get there by 4.30 pm, before it closed to the public. There was also the curfew to consider – we would have to stop our work well in advance of sunset to enable us all to get safely to where we would spend the night.

I noted at one stage that one particular woman of advanced years was speaking at great length in a slow and deliberate manner. Hosea had at one point even stopped taking notes while she did so. I could discern that she had earlier also asked him several questions. It was equally clear to me that this discourse went outside what we required for the affidavits: Hosea was no longer writing anything down. I turned to him and urged him to find a way to cut her short and get to the point, unnecessarily adding that we did not have time to canvass all sorts of other issues as well. He patiently explained that it would simply not be possible for him to cut her short and that the same applied to many of the other people there. She was, he said, entirely unused to consulting lawyers, and would not and could not be rushed. She would get to the point in her own good time and would certainly not be confined to the specific questions we had raised. In fact, he said it was taking time to get anywhere near the issues at hand. Some of her questions were directed at ascertaining more about Hosea’s and my backgrounds before Hosea could even broach the subject matter.

The shame I felt at my own insensitivity and impatience was compounded by the tactful way in which Hosea had administered this fundamental lesson. It was one that proved invaluable in the years which followed. It was also reinforced a few years later when learning the language myself, and coming to a more rounded understanding of culture and discourse in the area. You simply could not hurry people, especially older people, in any meaningful consultation as a general rule, but most certainly not when it concerned sensitive matters of this nature – matters in which a lack of trust and confidence could lead to reprisals and compromise others.

It turned out that the old woman would not be a witness. She had not visited a relative in detention. Nor was her relative among those listed in our enquiries. But we took down the name of her son and undertook to enquire about his detention and revert to her. Hosea also assured her that, if the case were to be successful, her son would also be released. This more than satisfied her. The unconditional warmth in her gratitude to us for seeing her and taking up the issue of her son’s detention at the end of the extended consultation only served to drive home the lesson I had learnt even harder.

As the 4.30 pm deadline approached, we agreed that I would go to the post office with three witnesses and an interpreter while Hosea would continue to consult. I covered the 10 km to Oshakati at high speed along the near-deserted road, populated only by a few military vehicles – a far cry from the steady stream of congested traffic along that stretch in today’s Namibia. We just managed to reach the post office before closing time.

I asked at the counter if I could see the Postmaster. Within a few moments a middle-aged Afrikaans man appeared. He looked quizzically at this unusual group of people seeking his assistance. I politely apprised him in Afrikaans of the purpose of our presence at his post office. I explained that I was a lawyer with three witnesses in a court case who needed to depose to affidavits, while the fourth would act as their interpreter from English or Afrikaans to Oshiwambo. It seemed that he was seldom called upon to commission affidavits. He asked to see the affidavits. I handed them to him.

After quickly perusing them, he dismissively discarded them on the counter and looked up sharply. His air of almost benign indifference had in an instant turned to open animosity. He continued in Afrikaans, with an edge to his slightly raised, high-pitched voice: ‘I can’t commission affidavits to that effect because I’m not satisfied that the affidavits are true. I don’t know that the people referred to in the statements are in fact detained and where and for that long.’

I was at pains to point out with all the courtesy I could muster that this was not his function. His task was to satisfy himself that the witnesses knew and understood the nature of the oath and swore that their statements were true and correct. Despite this explanation, he remained reluctant. This spurred me on to assert that he was required by law as a commissioner of oaths to perform this function when it was requested of him and that he could be acting in breach of his statutory duty if he declined to do so. His increased displeasure at our presence and purpose there was palpable. He paused and eventually responded: ‘All right. I’ll do it. But I refuse to use the interpreter you have brought with you.’

Without even looking at our interpreter or awaiting my response, he looked over his shoulder and raised his voice to an even higher pitch and yelled, ‘Paulus!’

Within seconds, the middle-aged Oshiwambo-speaking man who had been summoned appeared from one of the back rooms of the post office. The Postmaster turned towards him and, with increased vehemence, commanded him in Afrikaans: ‘Paulus, find out from this old man if these are really his words and that they are in fact the truth according to him or whether these words were put into his mouth by this lawyer or others.’

His manner was overbearing and intimidating. It would also have become obvious to our witnesses that he was being dismissive and openly aggressive towards both them and me.

His employee, whom he addressed only by his first name in a deeply demeaning tone, then turned to the ageing, white-haired Dominic Amutenya and explained this question in some detail in the vernacular. Dominic Amutenya paused plaintively for what seemed an eternity as he considered his answer, which was then delivered in a carefully measured manner, with manifest gravitas. The instant he finished his answer and before there was time for its translation to commence, the Postmaster, possibly sniffing my blood, impatiently snapped at his subordinate in Afrikaans: ‘Come, come, Paulus, what is he saying, man?’

The atmosphere, already heavy due to the oppressive humidity, thickened appreciably. I had visions of the case collapsing calamitously before getting out of the starting blocks and of my potential disbarment on grounds of putting words in witnesses’ mouths to subvert justice. I suddenly regretted not foreseeing the real risk of such a hostile commissioner of oaths and not taking the time to prepare Dominic Amutenya for this eventuality in our excessive haste to make it to the post office on time.

The post office employee, with his eyes gazing ahead to avoid the Postmaster’s persistent stare, unhurriedly delivered the translated answer: ‘Baas, the old man says that he is an old man in years. He has already lived for many years. He has seen and experienced many raining seasons and many other things in his lengthy life. But in his whole lifetime, he has never spoken a truer word than that contained in that very document. He furthermore says that it is a very great privilege for him to make this true statement officially in a court document. In fact, it is very true and has been true for nearly six years now and still remains the truth. He finally also says that the injustice and suffering must cease.’

The postmaster then snatched at his official stamp and hastily did the necessary with all too obvious irritation. While his head was bent over officiously applying his stamps and signature, Dominic Amutenya – for the first time since giving his telling answer – turned to me, flashed a smile and simultaneously gave an exaggerated conspiratorial wink of the eye. This gesture has remained with me ever since and is one I shall never forget.

When the Postmaster had completed the task of commissioning the other two affidavits, he grabbed his stamps and hurriedly retreated, storming off in the direction of his office without saying another word. A discreet departing nod in our direction from his employee, known to us only as Paulus, meaningfully spoke of solidarity and respect.

Our shared relief when leaving the post office was echoed, by strange coincidence, by a heavy downpour. It provided a welcome release from the overbearing humidity that had been building up incrementally all day, reaching its climax during the encounter with the Postmaster. I bade my farewells to Dominic Amutenya, the interpreter and the other witnesses. I thanked them all warmly, particularly Dominic. He responded that it was for him to thank me for enabling him to support a case he felt so strongly about. He was grateful to be able to do something about his son Willy’s detention during his lifetime. He added that he would not want to die without doing so. I subsequently learnt that Willy had been injured during the aerial bombardment that had preceded the assault on the base and had consequently had an arm amputated. Willy became a leading figure in the group and has published an account of his capture and his time in detention.24

I returned to the service station to collect Hosea, still studiously consulting, for us to make our way to Okatana where we would stay overnight before the curfew would take effect.

Okatana is a Catholic mission station and school nestled in a grove of huge indigenous fig, leadwood and acacia trees, lending it an air of tranquillity amid the prevailing turbulence in the area. A warm welcome from Father Hubrecht was followed by a hearty dinner. Upon my enquiry, he said that the generator would stay on until 9.30 pm. Hosea and I continued to work on the affidavits until then. The generator was switched on again at 5.30 am the next morning, in time for the mission station to prepare for morning mass. We continued our work on the affidavits from then until breakfast time. Hosea dictated details while I typed as quickly as I could.

As we left the mission station, schoolchildren of varying ages were converging upon it from all directions. The energy in their approach may have had something to do with the morning’s freshness following the rain of the previous late afternoon and evening. This energy was also no doubt because of how strictly the impending school starting time was presumably enforced, given the influence of German Catholicism. We continued to encounter them for some distance, demonstrating how far away some of the children lived from the school, with latecomers scurrying with even more urgency towards the mission station.

We returned to finalise the remaining affidavits and spent some time going through them with the various deponents. We also noticed that the numbers of people had begun to swell in the course of the morning while we were carefully checking details and contents with deponents. Samson explained that they also wanted to consult with us. Some of them had a relative detained at Mariental; others knew of people who had a relative detained there; still others wanted to discuss disappearances or detentions unrelated to the Mariental detentions. All said that they had received word of the case and had come to support it.

Hosea and I tried our best to explain in a respectful manner that affidavits from everybody would not be neither necessary nor possible in the time available to us. But we assured them that, if the case were to succeed, all the detainees at Mariental would have to be released. We agreed to take down their details and those of their relatives who were in detention or who had gone missing, and promised to do what we could. We also thanked them all for their support and willingness to come forward, expressing our appreciation and respect for their courage in doing so in difficult times. An elderly man in the group stepped forward as a spokesperson and movingly thanked us on behalf of all present. We then went to the Oshakati branch of Standard Bank where the manager commissioned all the remaining affidavits without demur. In all, 21 affidavits had been completed since the day before.

A light lunch awaited us at Okatana. As we approached the mission station, the children toiled homeward in small groups mostly defined by their size, their languid movements no doubt the consequence of the heat and humidity that had long since replaced the day’s early freshness.

The fast pace of our progress back to Windhoek was only temporarily interrupted by the frequent military and police checkpoints which were negotiated without incident. We encountered a few showers along the way. At sunset, we stopped to stretch our limbs alongside the road near the Omatako mountains midway between Otjiwarongo and Okahandja.

The presence of some clouds in the west served to accentuate the range of colours of the sky as the sun set to spectacular effect and disappeared behind those near-symmetrical mountains, which stood out dramatically from the seemingly endless plains of surrounding farmland. The sight was so splendid that we stood there for some moments, marvelling at the timeless beauty of the scene and reflecting on the past 36 hours. The serenity of this spectacle combined with sheer exhaustion stirred our emotions, which ranged from relief to a sense of elation at eventually having secured sufficient evidence to take the case to court. But we also had a deep sense of uncertainty and foreboding about what was to come, not knowing what the consequences would be for our clients and witnesses, and what would happen in the case. We spoke briefly about our thoughts – which were strikingly similar, our having worked together on the case for some time. For most of that time, we had not made much progress, and then this flurry of developments. We travelled the remaining hour and a half mostly without speaking as we each contemplated these themes to the strains of Bob Dylan, Ry Cooder and Bob Marley playing on some tired cassette tapes in the background. We were both physically and emotionally drained on our return to Windhoek that night.

I spent time the next day preparing a draft of my own affidavit. I also approached the Anglican Bishop of Namibia, James Kauluma, to join the application as an applicant to apply for the release of those detainees whom it had been admitted were in Mariental and for whom we had not been able to trace any relatives. He was the serving president of the CCN, whose member churches represented some 85 per cent of the Christians in the country and over 95 per cent of those living in Owambo. He enthusiastically embraced the idea. It was the start of an enduring partnership in human rights work. As he was about to head for Owambo, he agreed to approach the bishop of the Evangelical Lutheran Church in Namibia (ELCIN), Kleopas Dumeni, to do so as well. I was to speak to the Catholic bishop, Bonifatius Haushiku, on the Monday after the ensuing weekend as he was out of town at the time.

Our approach was to argue that the three bishops would have standing to apply for the release of those for whom family could not be found. The courts had acknowledged about ten years before in a leading case that the Anglican Bishop of Namibia had standing to interdict the flogging of activists by state-supported tribal leaders in the north because of their political activism.25

I travelled that weekend to Cape Town to consult Jeremy Gauntlett. He agreed to spend Saturday settling my own and Bishop Kauluma’s affidavits and the terms of the notice of motion. My own affidavit essentially set the background and the enquiries I had made, and the responses from the military. It also dealt with the further steps taken to obtain affidavits. Jeremy excellently embellished upon my rather ordinary draft for Bishop Kauluma, dealing with the question of standing in the following way:

During the course of the tragic hostilities in South West Africa, and notably Owamboland, I have often been approached by members of the civilian population who have asked me to assist them in their search for lost family and friends, caught up in the war, some of whom have been held by the South African Defence Force (the SADF) or the South West African Territory Force (SWATF). By the nature of my vocation as a bishop, the vows I have taken to serve God and man in the dictates of the Christian Gospel, I have sought to assist where I can … I consider it my duty to coordinate and consolidate the activities of member churches and to promote and protect the several interests of member churches, the membership of such member churches representing 85% of the population of South West Africa, and to act on their behalf …

I have read the Notice of Motion and all other supporting affidavits filed herein. I am personally aware of the circumstances at present prevailing in Owamboland which make it most difficult to find family or friends of the abovementioned detainees; the fact that some of the areas concerned fall within the war zone, the great distance, the lack of means of communication and the general atmosphere of fear.

After careful reflection, I consider it my duty to join in this application on behalf of the aforesaid detainees.

It was certainly necessary to set out the claim for standing in detail. Our experience by then, and repeatedly confirmed subsequently, was a deliberate strategy on the part of lawyers acting for the security establishment to take every conceivable procedural point they could to persuade courts to find for them without the need to go into the merits of cases. They relished making it as difficult as possible for detainees and their families to have access to the courts (and tried to avoid going anywhere near the merits of cases, given the nastiness of security force action).

I dropped off the draft affidavit for Bishop Kauluma with the Dean on my return that Sunday. He would take the draft to the Bishop in Tsumeb the next day. I then met with the Catholic bishop, Bonifatius Haushiku, the next day. His support was likewise emphatic and enthusiastic. His assistants’ initial resistance to the case had in the meantime given way to wholehearted support, once they became aware of the headway we had made and the scale of case. After he and Bishop Kauluma had signed their affidavits, we decided to serve the papers before we had received Bishop Dumeni’s commissioned affidavit because he would only be able to return it to us the following week.

The minister of defence was cited as the first respondent in the application as the minister in charge of the SADF. The AG was also cited because he had signed the orders for the further detention of the detainees. Hosea and I had scrambled to ensure that the papers were ready and handed to the deputy sheriff for service on Friday 5 March 1984. We provisionally set it down for hearing on 4 April in the event of no opposition. If opposed, a subsequent date would be sought.

Once service of the application was out of the way, I was at last able to telephone Gay McDougall for the first time to report on the application to her. She was ecstatic. I had written a long letter to her before our breakthrough in February and our securing the affidavits in the north. Visiting friends from the US had taken the letter back with them and mailed it to her from there on their return, to avoid its interception.

These were the days before fax machines. The best I could do was to courier a copy of the application to Gay. I met with my close friends, Tony Weaver and Gwen Lister, both journalists. Gwen worked for the Windhoek Observer, a fiercely independent newspaper at the time. She was its political correspondent. She also did some freelance radio work for the BBC World Service, widely listened to by Namibians who had access to shortwave radio, and who thirsted for some balance in reporting and wanted to escape the relentless propaganda of the local state-controlled radio stations and indirectly controlled newspapers. Tony was then the Windhoek-based correspondent for the erstwhile Rand Daily Mail, the most progressive of South Africa’s daily newspapers, and the other morning newspapers in its group, including the Cape Times. They both provided extensive coverage to the launching of the application.

For the first time, the plight of the Mariental detainees had received media attention – some six weeks short of the sixth anniversary of their capture and incarceration. While details of the Cassinga and Chetequera raids had been sketchy, the local media heralded the military operation as a body blow to Swapo. In contrast, the international community condemned it as a major atrocity. It was long thought that prisoners had been taken, and now at last there was some official confirmation of their circumstances.

Gay, a seasoned activist, ensured that the detentions and the application secured considerable publicity in the US and elsewhere.

The government respondents in the application had a few weeks to file a response. On the last day for doing so, they dropped a bombshell.

Instead of filing a notice to oppose the application and opposing affidavits, a terse certificate under the signature of the Minister of Justice of South Africa, Kobie Coetsee, was lodged at court and a copy served on us. Under the heading ‘Certificate in terms of section 103 ter of the Defence Act, 44 of 1957’, it proclaimed in the Afrikaans language:

Whereas I, Hendrik Jacobus Coetzee, in my capacity as Minister of Justice, have been authorised by the State President in terms of section 103 ter (4) of the Defence Act, 1957 to issue a certificate directing that the civil proceedings instituted by James Hamupanda Kauluma and 22 others against the Minister of Defence and Another in the Supreme Court of South West Africa should not be continued:

I hereby direct, as contemplated in section 103 ter (4), that those proceedings shall not be continued.

I was caught completely unaware by this dramatic turn. In fact, I was flabbergasted by the Orwellian phraseology and oblivious to the cited legal provision that facilitated it. This power had never before been invoked in any case of this kind. I was unaware of the existence of this power, in this obscure section, until I looked it up. At its core, it prohibited the institution or continuation of any court case (civil or criminal) against the State or the military or one of its members for any act done in good faith by the military ‘for the purpose of or in connection with the prevention or suppression of terrorism in any operational area’.26

The provision went on to empower the minister of defence to certify that a particular act had been committed ‘for the purpose of or in connection with the prevention of or suppression of terrorism’. A certificate by the Minister or the Prime Minister issued under this sub-section established conclusively that the act in question had been committed for the purposes of, or in connection with, the prevention or suppression of terrorism.

It got worse. Sub-section (4) stated that no court of law had jurisdiction to determine both the issue of whether the act had been committed for the purposes of, or in connection with, the prevention or suppression of terrorism, and whether it had been done in good faith. The effect of a certificate was to leave nothing for a court to decide. The issuing of the certificate would conclusively determine both the nature of the act (as being for that stated purpose) and the existence of good faith. Under sub-section (6), the consequence of a certificate was that the court proceedings lapsed and were ‘deemed to be void’.

The final blow was administered by sub-section (7). It stated that ‘no court shall have power to review, set aside or declare to be void or otherwise question the validity of any certificate issued under sub-section (3) or (4)’. This is an extreme form of what is known in the law as an ouster clause because its purpose is to oust or deprive the courts from exercising jurisdiction to determine the validity of the certificate.

I was appalled that I had not even heard of this draconian provision. It had never been referred to at law school. Nor had I read any publicity about its passage through parliament in South Africa.

No one I turned to had heard of this provision either. Jeremy was also surprised and undertook to research section 103 ter and to see if there could be a way out.

I called Tony. I said I had something to show him. We met at the nearby Café Schneider for a cup of coffee. This was our regular meeting spot after the application had been served to brainstorm follow-up angles to keep the story alive.

When I showed the certificate to him, he gasped, ‘Holy shit.’ After rereading it, ‘This is dynamite.’ A few seconds later, ‘Phew, this is really big.’ And after another minute or so, ‘This now becomes huge. But what are you going to do?’

I had also brought a copy of the section with me and gave him a few minutes to absorb its meaning. ‘Oh my God, so the court’s totally excluded. This is unbelievable. I’ve never heard of this power before. Had you?’

I confessed that I had not. Nor had anyone else so far. The section was tucked away towards the end of the Defence Act, which most lawyers would not have much occasion to research. I said we would look into it and see if there was any possible basis of challenging the certificate, despite the explicit removal of the court’s jurisdiction to pronounce upon its validity. He would run the story immediately. We agreed to meet the next morning to discuss follow-up avenues.

Tony’s report made it to the front pages of all the newspapers in the morning group in South Africa. It was in fact the lead story in both the Rand Daily Mail and the Cape Times. Gwen also gave it prominence in the next edition of the weekly Windhoek Observer and did a detailed report on the Africa Service of the BBC. Even the local pliant pro-apartheid media reported on the banning of the case – as necessary in combatting terrorism. I was referred to in these reports. A consequence was running into an acquaintance of my parents the next week in town. ‘What a disappointment you must be to your poor mother,’ she lamented. I was so surprised that all I could come up with was that my mother fully supported what I was doing. Her disbelief showed as she hastily moved on. This exemplified the view of most of the white community.

Later that afternoon I phoned Gay, impatiently having to wait for much of the day for the opening time at her office because of the time difference. She was equally aghast. She fired many questions to me about section 103 ter. Like Tony, she expressed her horror at the import of the section.

‘You all must see what you can do about this. I’ll certainly raise all hell about this from here.’

We agreed to remain in close contact about the issue.

True to her word, the certificate banning the case received prominence in the Washington Post. Within a week or so, it was also raised in the House of Representatives of the US Congress. Gay also saw to it that it was raised as a question in the House of Lords in England. I contacted my friends at Ropes and Gray. One of the partners was a leading figure in the American Bar Association. Within a few days that body petitioned the US Secretary of State, George Shulz, to approach the South African state president about the issue. I put Tony in touch with Gay. He duly kept the issue alive by according all of these events considerably wide coverage in the media in South Africa, as did Gwen in the Windhoek Observer.

In the meantime, our research revealed that section 103 ter had been inserted in the Defence Act in 1977. The parliamentary debate in South Africa did not shed much useful light on the subject. Jeremy discovered that the wording closely followed an indemnity provision which had been enacted by the Smith regime in 1975 in what was then Rhodesia.

The senior partners in my firm were, by this stage, concerned that I was becoming obsessive about this case. The terms of the section were, they said, clear and prevented any further challenge in court. I had done my best for my clients and exposed a gross injustice. I should learn to accept it when I had been defeated. It was time to move on. But I was not ready to do so.

When Jeremy could not come up with a clear answer for a sustainable basis to challenge the certificate, I asked a few senior counsel for their views, including the local Bryan O’Linn who seldom steered clear of a scrap with the security establishment. Similar sentiments to those expressed by the senior lawyers of my firm were conveyed to me.

I sought Gay’s approval to approach the great South African and later English senior counsel, Sydney Kentridge,27 for his views. To my delight, she readily agreed. I called his Johannesburg chambers, only to be informed that he was in London, where he was increasingly practising. His secretary said he would be back in Johannesburg the following week but that he was fully engaged in a case set to run for some time after his return. After I explained the nature of the case to her, she was empathetic and said that he would be arriving over the weekend (on Saturday) and that I should phone his son Matthew, who was staying at their Johannesburg home and was in frequent contact with his parents. I could ask him to raise the issue with his father to see if he would see me. Matthew was a student and I should call that evening.

A few hours later Matthew was most enthusiastic in his support of our case. His father was due to call the next day and he would do his best to prevail upon him to see me over the weekend. He was confident that his father would do so. I informed him that I would be in Kempton Park on Sunday and Monday. This was the nearest town to Johannesburg’s international airport. I was heading there because Gwen Lister had been charged under the Internal Security Act of South Africa for being in possession of documents about banned organisations – the ANC and PAC – on arriving at that airport the previous year en route to Namibia from a UN-sponsored conference she had attended in Paris. Her trial was set down for that Monday in the Kempton Park regional court.

Her arrest had taken place during my time in the US. In my absence, she had initially been advised by a new colleague in my firm, a former prosecutor, to plead guilty to the charges because the items had, in fact, been found on her when the security police had swooped upon her as she had landed and before she could enter the arrivals hall. She told me about this on my return. I advised her to change her stance. A conviction under the Internal Security Act could have consequences. It could preclude her from starting a newspaper or it could be used to support a ban of her current newspaper. It could also form the basis of withdrawing her passport and a realm of other actions that could conceivably be taken against her. She gladly accepted my advice. I took over her defence within the firm and engaged both senior and junior counsel to defend her. Jeremy was the junior counsel and would be able to accompany me to a meeting with Sydney Kentridge.

Matthew called me back the next night. With evident delight in his voice, he reported that his father would see us at 4 pm on Sunday afternoon as he was tied up from Monday onwards.

When Sydney took us through to his study, he politely informed us that he had time constraints because he had dinner guests coming early that evening. I wasted no time in setting out the factual background to the application. Jeremy took him through the provisions of section 103 ter. Sydney had also been unaware of this provision and had been taken by surprise when he had read about the banning certificate in The Times in London.

When we had both finished our respective presentations, he quietly asked me how I proposed to challenge the certificate in view of the ouster clause. I suggested that the detentions were not in good faith. Nor was the certificate. His compelling counters to those propositions were unanswerable. I desperately tried to come up with a few other ideas. Each was quickly disposed of as being untenable. And each time, there was no rebuttal to his devastating logic. It now seemed to me that we had finally reached the end of the road – a cul-de-sac. Rising to my feet, I thanked him for seeing us on a Sunday afternoon and apologised for wasting his time.

‘Not so quickly, young man,’ he said. ‘There’s something you’ve said which could possibly be developed further.’

I sat down. He turned to Jeremy and asked him to reread the section. When he got to the part ‘the proceedings were instituted by reason of an act advised, commanded, ordered, directed or done …’, Sydney stopped him.

‘This section,’ Sydney said, ‘concerns wrongful acts done in the past. The past tense contemplates that the acts are completed.’

This, he said, was the purpose of an indemnity provision. It dealt with something which had been done – as a finite act – in the past and afforded an indemnity for that act. It could not concern conduct in the future or an ongoing wrong such as an unlawful detention. Unlike an arrest, the act of detention was, he said, not an act done in the past tense but a continuing one, which carried on every day the detainees remained in detention. He concluded that the section could not apply to the continuing wrong of detaining my clients. The certificate would thus not be a bar to the proceedings. We should press ahead with the application.

This irrefutable logic had of course not arisen from anything I had said. I knew that I had just witnessed a level of intellectual brilliance I had not encountered before and have not since.

The next step, he advised, would be to address a letter to the Government Attorney to record this and to call upon the government respondents to file answering affidavits if they wished to do so and then set the case down for hearing.

I asked him if he would be prepared to argue the application. He was unfortunately tied up for a few weeks and would then start another case. But he did not expect his current matter to run the full course and should be free on either 25 or 28 May. It was not certain, though.

‘If you want to secure the services of somebody else, you should do so,’ he said.

I replied that we would certainly prefer to take our chances on his availability.

In my excitement and with my lack of experience, I had not discussed another practical matter that one customarily discusses when engaging counsel. He realised this: ‘If I may be commercial for a moment, I don’t know if you have funding for this matter. But you needn’t be concerned if you don’t have. This is a matter of such fundamental importance that I would be prepared to assist without charge.’

I assured him that there was funding available.

As we were gathering up our papers, Sydney’s wife, Felicia, gently knocked and entered to announce that their dinner guests had arrived. As Sydney escorted us towards the front door, he paused at the lounge door and stuck his head into the room. ‘Arthur, there is someone I’d like you to meet,’ he said.

A tall, friendly figure emerged. I was introduced to Arthur Chaskalson, the brilliant senior counsel who had left a flourishing practice at the Johannesburg Bar to head the Legal Resources Centre (LRC). Meeting Arthur was the crowning moment of an exhilarating afternoon.

As we drove back to Kempton Park, Jeremy suggested that I obtain a mandate to secure Arthur’s involvement as well in case Sydney would not be available. Realising what was at stake in the case, and having great respect for Arthur, Gay was quick to agree. Arthur was available and was on board.

The next day also went very well. Ian Farlam, our senior counsel, was outstanding in presenting Gwen’s defence. His cross-examination of a security police officer, Derek 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 in those cases. This and other attempted injunctions were baseless, and were politically motivated to discredit and distract our clients during the run-up to the election. Judge Strydom had no difficulty in dismissing them in 1989.

After counsel had placed themselves on record, there was complete silence in the courtroom during Sydney Kentridge’s address, delivered in a measured and logical manner and with such clarity. At the outset, he first dealt with the release of 55 of the detainees – 31 of whom were no longer part of the application – over the preceding weekend and said it was no longer necessary to apply for their release. He then referred to the threat of the special order of costs against me.

Since the papers were first filed, there have been a number of developments in the case which I should mention to your Lordships, largely in order to clear them out of the way.

My Lords, the application was originally brought in respect of 37 people who were detained in a camp in the Mariental area. In fact it appears that owing to a misunderstanding, one of the names was duplicated, so that there were 36 detainees involved.

Now, my Lords, since then, 31 of them, I am glad to say, have been released. My Lords, let me make it clear that the respondents say that this had nothing to do with the present application, so let us accept that it was but a happy coincidence. But be that as it may, my Lords, 31 have been released and there are 5 still in custody in respect whom which we wish to press the application.

Sydney then listed the five names of those still incarcerated and proceeded:

Now, my Lords, the other development which took place in this case, was that the Minister of Justice issued a certificate purporting to have been issued in terms of section 103 ter of the Defence Act … [I]n terms of this certificate the Minister purported to order that these proceedings should terminate. Now, my Lords, the applicants acting on legal advice, are submitting to your Lordships that this certificate is bad in law; it is a nullity, it is issued without jurisdiction on the ground, shortly, if I may give it in its shortest form, that s 103 ter does not relate to or cover proceedings of this nature, this is to say, habeas corpus proceedings.

… After this certificate was issued, the attorney for the applicants wrote a letter to the State Attorney, who was acting for all the respondents, in which it was said, in the second paragraph, ‘it is our view that the issue of such certificate in the present application is an act of ultra vires Act 44 of 1957 and void in law’, and the respondents were ultimately called on to file answering affidavits.

Sydney turned to the letter from the Government Attorney to me, threatening costs against me on a special scale and stating that he regarded the proceedings as malicious.

Now, my Lords, in my respectful submission, that is an astonishing and indeed, most improper method for one attorney to write to the other. It is a threat made against the applicants’ attorney to attempt to deter him from proceeding with the case. It verges in our submission on contempt of court and my Lords all I need say about it is that this attitude is not persisted in any longer by the respondents …

As your Lordship will see from page 97, a further point was taken … that the Minister of Justice had to be cited as a party to this matter. My Lords, that point, although not as offensive as the other point taken by the State Attorney, is equally without substance and I am glad to tell your Lordships that this point is also not persisted in by the respondents, so that your Lordships may deal with the merits of the certificate and the merits of the application.

His understated irony in referring to the timing of the release of 55 detainees as a ‘happy coincidence’ was met with much semi-stifled mirth in court. It even evinced smiles from two of the three judges. Mouton remained stern-faced, and William de Villiers’ body language spoke of despair.

Using simple and plain language, Sydney proceeded to set out the argument against the certificate and the detentions in an easy, logical progression. Everyone could follow and appreciate the weight and sheer sense of the arguments. During both the tea break and the lunch adjournment, many of the clergy and activists in court felt there could be no answer to his compelling arguments.

The two senior counsel for the government split the argument between themselves. Louis Harms dealt with the certificate. Upon his analysis and interpretation of section 103 ter, the certificate should be upheld. William de Villiers rambled on about the detentions, arguing that the SADF had wide powers under the Defence Act and that the capture and detentions themselves were lawful. And, he said, the AG could validly extend detentions of people even if they were initially taken unlawfully into custody.

Although different in style and delivery to Sydney, I was also struck by the simplicity of language used by Arthur in his excellent reply. He incisively deconstructed and then demolished the arguments advanced by the government lawyers. The combination of Sydney’s argument and Arthur’s reply had been the most impressive display of advocacy I had witnessed up to then, and ever since.

The court reserved judgment as expected. I rushed our counsel to the airport in time for their late flights out of Windhoek. In high spirits, I joined Hosea and a few friends to reflect on what had been an enthralling day. We felt that the government lawyers had no answer at all to the argument on the certificate and considered that we had a sound chance on the detention issue.

Weeks went by while we anxiously awaited the court’s ruling. Eventually, on 21 June, the court registrar called to say that the ruling would be handed down the next day. Most of the lawyers in my firm trooped off to court the next morning in the company of Bishop James. On these occasions, the full judgments are not read out. Only the concluding order is read out by the judge.

I was ill prepared for what followed.

Judge President Berker announced that he had prepared a judgment which his colleague Strydom had agreed with and that Judge Mouton had written a separate judgment. My hopes suddenly skyrocketed. I had not expected Mouton to find in our favour and a division held out the promise of success. As quickly as my hopes had risen, so they were dashed. In his next breath, Berker said that the result, however, was the same on both approaches. The application had lapsed under section 103 ter and no order is made. In other words, they accepted the validity of the certificate, resulting in the case lapsing; the application failed for that reason.

The court had rejected the powerful arguments against both the certificate and the detentions. The majority of the court (in the opinion written by the Judge President and agreed to by Strydom, J) found that it was for the state president to form an opinion not merely as to the good faith of the act in question, but also as to whether the court proceedings were instituted by reason of an act of the kind specified in section 103 ter (4). According to the court, the State President could thus form an opinion as to his own jurisdiction in deciding whether the court proceedings were by reason of an act contemplated by the section. They found that, once he had formed that opinion, the court had no power to declare his opinion invalid on the grounds that it was, objectively speaking, wrong or founded upon incorrect facts.

Judge Mouton’s judgment was even more reactionary and in favour of the military. He considered that ‘the act of continuously holding in custody’ was, as a matter of law, an act ‘contemplated and foreseen by section 103 ter’.

As for the detentions, the majority, although inclined to the view that the detainees were not in lawful custody at the time of the AG’s ordering their further detention in May 1979, found that the term ‘custody’ used in the 1979 amendment ‘does not mean lawful custody but simply refers to the factual position of a person being held in custody’. The AG could thus order the further detention of those unlawfully in custody. Judge Mouton agreed with this conclusion but went considerably further and found that the detainees had at all times, in any event, been in lawful custody. He said that the power to arrest and keep in custody flowed from the powers of the SADF to suppress ‘terroristic’ activities.

So much for the rule of law. The outrage I felt at the court’s ruling was so intense that it felt visceral, like being winded by a blow to the stomach. When the blow was administered in court, I looked down at the blank page of the pad in front of me so as to avoid the glance of the exultant Chris Brandt who made no attempt to temper his delight at his triumph. The written judgments were handed to me. I scoured the majority judgment in my numbed state of disbelief, desperate to discern how things had gone so wrong. I got up to leave after the others had already gone so as to avoid encountering Brandt. I spoke outside to relatives of detainees and the bishop about an appeal. Without the need for any discussion on the issue, there was an instant consensus to do so.

It struck me that the court’s reasoning on the certificate issue was formalistic and contrived, steering a compliant course. The appeal would be directed to the Appeal Court in Bloemfontein, South Africa. It was the highest court of appeal for cases from Namibia until independence. (It had the same status for South African appeals.) We agreed to meet formally to finalise the notice of appeal after I had also consulted counsel about the matter.

Gay was understandably also disappointed at the ruling and supported an appeal.

I was so downhearted. I decided to call Arthur that evening. His wonderful wife, Lorraine, said he was not at home and would only return late after a meeting. She was unequivocally supportive and had already become a good friend. Lorraine let me vent my anger at this injustice and then responded with coherence in her soothing tones, acknowledging that it was an awful setback. But, she said, they had also experienced setbacks in some of the outcomes of Arthur’s cases. She said I was justified in feeling anger and being let down. The legal system could be fickle and nasty. Victories within it were very hard to come by. What was important, she said, was that I could hold my head high in the knowledge that I was in the right, even if the court ruling had gone against us, and had done my best for my clients. And to remember that it was important to keep believing in fighting injustice. Her warm words worked wonders.

Although I remained disillusioned about the outcome, this conversation had given me much-needed perspective. I knew that Arthur must have had many setbacks over the years of a similar kind. Yet he had tirelessly continued and had no doubt learnt from them in becoming the bastion of principle and excellence he was to us younger lawyers who aspired to do human rights work. Arthur called me the next day at work. He was also reassuring and encouraging, reminding me of the remarkable success achieved so far in the case by securing the release of 55 people after more than six years in secret detention. He quickly turned to practical matters, talking about an appeal and expediting it because of those who remained in detention. I set about putting those steps in motion at once.

There was a heavy atmosphere of gloom the next night at the Press Club where I met with my circle of friends on Friday evenings for drinks. The Press Club met on Friday evenings at the private bar of the rather sleazy Kaiserkrone Hotel in the city centre. Tony and I and a few other friends, including Hosea and Hartmut, commiserated about the outcome to the strains of Abdullah Ibrahim’s iconic ‘Mannenberg’ – the signature song of the Press Club. The pathos and pent-up anger in that beautifully written and played jazz composition matched the mood. The locally brewed beer flowed and fuelled our vehemence in expressing our anger and frustration, and was about to give way to a sense of futility in taking on the system in the courts. I left before I became completely enveloped in despair.

My feeling of deep disillusionment about practising law continued for a few days until I realised that it was beginning to affect my colleagues as well. I recalled Arthur’s words about our success in securing the freedom of 55 detainees, and exposing the injustice of the detentions and the lengths to which the regime had gone to prevent justice from being dispensed. But much more importantly, I realised that success would not be measured in court rulings in our favour. Those would not be readily forthcoming. The real outcome for our clients was, after all, what mattered most. Fifty-five detainees had been released, a serious abuse previously concealed had been exposed, and accountability on the issue had been forced, even if the court had not been receptive to our arguments. I recalled my thinking on being more assertive in the courts. That approach would not necessarily result in success in the narrow sense of the outcome of the case itself. Success was to be understood in a broader sense. My frame of mind improved. I felt I was on the right track. But the events that unfolded soon afterwards would preclude time for more introspection and rather demand that my attention be directed to more immediate concerns. This became a recurring theme in my practice during the 1980s – moving from one challenge to the next, often arising from the former, without a breather.

The case had been exhausting and I decided to take the following weekend off. I invited Hosea to join me and a visiting friend from the US at the Etosha National Park for three nights. It was the perfect antidote for the pressure of the case and the disappointment that followed it. Or so I thought.

On the second evening of our stay, one of the friendly conservation officers came to our fireside as we were about to start our braai in that magnificent setting, overlooking the floodlit waterhole at the Okaukeujo camp inside the park. He said he had an urgent telex for me. And so it was. Tony had written to tell us that my partner Hartmut, friend Anton Lubowski and other friends in the leadership of Swapo, including Dan Tjongarero and Niko Bessinger, had been arrested and were being detained without trial, apparently for breaching a law regulating meetings. A braai had been arranged by Swapo at Döbra, a Roman Catholic School just outside the capital, to welcome the newly released 55 Mariental detainees back into society. The venue had been surrounded by about 80 heavily armed security and riot police officers who had closed in on the event to arrest 37 of those there. We cut our stay at Etosha short and returned to Windhoek early the next morning.

An emergency partners’ meeting was convened at the house of senior partner John Kirkpatrick that Sunday afternoon. The security police had, in the meantime, confirmed that all persons were being held without trial under security legislation (AG 9) and that charges under the meetings legislation were being investigated. They could be detained for up to 30 days on this basis.

John, always an imposing presence, spoke first: ‘I’ve been approached by the Beeld’s reporter [a leading South African Afrikaans daily newspaper based in Johannesburg, which supported the apartheid regime]. I’ve been asked what action we as a firm would be taking against Hartmut.’

Hartmut had also become a junior partner on the same day as I had, some two months before. John said that other members of the media would be approaching him and he first wanted to consult the firm about his response and which actions we would be taking against Hartmut.

The next most senior partner took his turn to speak: ‘There is a need to take some form of action, and to be seen to be doing so. I suggest a suspension.’

Claus Hinrichsen was next in line to speak but first wanted to hear my views before stating his position.

I was profoundly disturbed by both the question being posed and the trend of thinking of those who preceded me, and said so. I did so as tactfully as I could. Even though distressed by what they said, I wanted to persuade them rather than have a showdown.

‘I thought we’d been called together to see what we could do for Hartmut and about the other detainees and coordinate our actions,’ I said. ‘I’ll be calling Gay at home this evening and get on to Amnesty International, Helen Suzman and some embassies in South Africa tomorrow. I’ll also call my friends at Ropes and Gray [in Boston] and ask them to take it up with the US State Department. But there are also some pressing practical issues we need to discuss such as Hartmut’s court work, like securing postponements and the like. I’ll go in early tomorrow to look at those and ask Hosea to help with that as well. We also need to support his parents and I’ll be going there straight after this. I simply can’t see how we can even consider any action against Hartmut while he is detained without any access to him. We should instead be doing what we can about his detention and to support him.’

Claus firmly agreed with me and immediately offered to assist with Hartmut’s files the next day.

The mood of the meeting fortunately changed and the two senior partners agreed with these steps. I proposed that the Beeld reporter be told that no steps of any nature could be considered without any charges and until we had been afforded the opportunity to consult Hartmut about those charges. There was consensus on this and I excused myself to visit Hartmut’s parents. They were in a state of extreme anxiety. I explained to them what steps we would take. I promised to be in touch with them every day with an update until his release. If I could not get to see them every day, I would at least call. I kept my promise to them until Hartmut and the other 36 detainees were released five days later.30

They 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.