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