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