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