The ensuing militarisation of South African rule in Namibia was to have a profound impact upon human rights and the law in the decade which followed. This book is about that impact over that period, starting with a case that arose from Operation Reindeer. It is about the assertion of rights and the law in a harsh and hostile environment against the backdrop of increasing lawlessness, including extrajudicial killings and criminal conduct by the military and security establishment, a descent into a darkness in which the military ultimately discarded the law and even suborned when it did not suit them.
The repressive legal landscape in Namibia at that time shared several similarities with the system in place within South Africa. Apartheid policies were, after all, also applied to Namibia. They were scrupulously defined by law that was central to their rigid enforcement. Law was also used to deal with dissent. Several of the most oppressive laws were applied to Namibia, such as the Terrorism Act,6 an earlier version of the Internal Security Act,7 and the Police Act8 and Defence Act.9 There were, however, some significant differences too. Unlike the ANC and PAC in South Africa, Swapo was not a prohibited organisation. Following the adoption of UN Security Council Resolution 385 (the forerunner to Resolution 435), a number of discriminatory laws were repealed when the first Administrator-General (South Africa’s supreme representative) was appointed in 1977. These included the Prohibition of Mixed Marriages Act,10 the Immorality Act,11 separate amenities and segregated areas legislation. But the fundamental basis of apartheid through its separate ethnically based administrations with their profound inequality, especially in education, as well as access to land, remained in place until independence. Even the installation of the two interim governments by the apartheid regime did nothing of substance to change or even ameliorate that.
Another distinguishing feature was that the northern areas were under effective martial law, having been declared security districts under the notorious Security Districts Proclamation, 1977.12 These areas were previously collectively referred to as the Police Zone (Owambo, Kavango and Caprivi), where more than half the population lived. A ruthlessly enforced curfew was in place in Owambo. That proclamation also gave the security forces (both the police and military) wide powers of arrest and detention. Any security force member of any rank had the power to detain for up to 96 hours. That was soon extended to 30 days. Later, the AG gave himself the power to extend those detentions indefinitely. Detainees were denied access to family and lawyers. They were also denied the ability to receive letters and have any contact at all with the outside world.
The enforcement of martial law in the northern areas was primarily in the hands of the SADF, an occupying army that had military bases of varying sizes spread across the entire area. Military checkpoints were set up on most major and several minor routes in the area, to be negotiated by local residents with varying degrees of indignity, depending on the disposition of those manning those points. Military patrols would search for and sometimes pursue insurgents without regard for people’s homes and livelihoods. The sheer terror and lawlessness in the northern areas escalated even further and took a more sinister turn with the establishment of the soon to be feared paramilitary police unit called Koevoet (the Afrikaans word for ‘crowbar’) in January 1979.
Those living south of the northern war zone were able to live their lives largely unaffected by these military activities, although this was to change towards the end of the 1970s as remote white farms and some urban areas were also sporadically targeted by insurgents.
This legal setting and growing militarisation held little promise of a smooth and comfortable professional journey for a new entrant to the legal profession at the beginning of 1980 whose prime purpose was to defend those who had come into conflict with the apartheid state. It was instead to be a bumpy yet buoyant ride, unpredictable for the most part and mired by an incremental descent to lawlessness coupled with covert criminal conduct on the part of the military and security establishment.
During my very early teens growing up in South Africa, I recall becoming vehemently opposed to apartheid at a very young age. By my early high school days I had become determined to study law to defend people who challenged the apartheid state. Although my parents were not politically active, they were unambiguously against apartheid and encouraged an enquiring mind. I read widely and, from a young age, developed an intense interest in politics.
My ideal to represent clients charged for political offences by the regime was powerfully reinforced by an experience in my second-last year at high-school in 1971. I had been able to attend a single day of the celebrated political trial of the Dean of Johannesburg on charges under the Terrorism Act, which took place in Pretoria, where I spent my high-school days.13 In a dramatic afternoon session, I observed the illustrious senior counsel, Sydney Kentridge, demolish a security police brigadier in a carefully constructed cross-examination, ensnaring the brigadier in his own web of deceit and contradictions until his version seemed to collapse. It was riveting. I was inspired and would be hooked.
I wanted to become a defence lawyer.
But my life was to take a new turn the following year. I was still in high school when my father was transferred to Windhoek to take up the position of Surveyor-General of the then South West Africa. (The name ‘Namibia’ was adopted by the General Assembly of the UN in 1969 and had been used increasingly since then. I used the term ‘Namibia’ in my practice in the years covered by this book, hence my use of the term).
I instantly took to my new home. The downtown area of Windhoek had a distinctly different feel from Pretoria. It was more racially mixed. Black citizens were not effectively excluded from Windhoek’s central shopping area and made to feel as unwelcome as I felt was the case in downtown Pretoria at that time, even though white political attitudes were very similar in both places in support of apartheid policies. Namibia’s unique status in international law added to its allure.
During my university years, it was my good fortune to attend a master class in cross-examination by another eminent South African senior counsel, Issy Maisels, which also had a profound impact on me. It was during my mid-year university break in 1976 and the setting was the Windhoek High Court.
At the end of a lengthy trial of Swapo activists under the Terrorism Act earlier in 1976, it was discovered that the Windhoek law firm defending them had been infiltrated by the security police. A partner called Anton Smit and Mrs Ellis, a secretary, had been recruited as security police informers and had, throughout the trial, deliberately and actively leaked key elements of the defence case to the security police who would in turn inform the prosecution. The firm applied for a special entry in the trial record to reflect this.
Issy Maisels was brought in to lead the legal team in the application to place evidence to this effect on record. It entailed cross-examining a security police captain named Nel and his co-conspirators, who had so fundamentally undermined the justice system. The defendants in that trial included Aaron Mushimba, a prominent Swapo member and brother-in-law to then Swapo president Sam Nujoma. He and three of his co-accused had been convicted under the Terrorism Act. Mushimba and a co-accused had been sentenced to death, and the others to terms of imprisonment. (Mushimba had been sentenced to death for allegedly providing a Land Rover vehicle to Swapo activists for transporting persons intending to undermine and overthrow the administration in Namibia. To make matters worse, leave to appeal was refused by the presiding judge but later granted on petition to the Chief Justice of South Africa.)
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