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