My enquiries to my usual church and other sources in my work for information about the Mariental detainees and their relatives drew a blank. I then turned to Dan Tjongarero, a prominent Swapo leadership figure. At the time, he was Director of Communications at the CCN. He said he needed some time to follow up, and would get back to me. He, too, was excited about the idea of a challenge and promised to do what he could. About ten days later he brought his CCN colleague, Samson Ndeikwila, to see me.
Samson originally hailed from the Ombalantu area in the western part of Owambo. He had gone into exile several years before and received military training, but was later detained in Tanzania at Swapo’s instance. On his release he travelled to Kenya where he furthered his studies. He had returned to Namibia some three years previously23 and obtained employment from the CCN after its recent establishment. Samson had heard that some of the detainees were from his area. He knew someone who would possibly be prepared to assist us. He, too, needed time to make his enquiries. They would be discreetly done in person when he next travelled to the northern areas. As the detentions were secret, and not publicly acknowledged, we needed not only the names of the detainees to enquire about the legal basis of their incarceration, but also witnesses who could confirm the detentions themselves in case this was denied, seeing that the detainees were being held in secret. A witness to attest to the circumstances of their capture was also essential to provide evidence of their seizure in Angola and that they had already been incarcerated in 1979, before the amendment to AG 9 had been passed and their further detentions presumably ordered – no doubt a legislative attempt to legitimate an existing state of unlawful detention.
Within a week or two, Samson returned with a list of thirteen names of detainees. I addressed a letter on 16 November 1983 to the General Officer Commanding the SADF in Namibia, seeking confirmation of their detentions and enquiring as to the legal basis. The reply was swift. In a letter dated 23 November 1983, the military acknowledged that they had been detained under the 1979 amendment (section 5 bis), upon an order of further detention by the AG.
We now had evidence that the people on Samson’s list were, in fact, being detained. But we still had no evidence about the circumstances of their capture. Samson did not know anyone who could attest to that. He undertook to extend his enquiries over the Christmas holiday period at the end of 1983 when he visited his family home in northern Namibia. During that holiday period, I called upon a friend in Cape Town – Jeremy Gauntlett, an advocate practising there – to seek advice about bringing the case. He had been the top final-year student at Stellenbosch University in my first year and had tutored a small group of us in our first year. In 1983, he was fast becoming an exceptionally fine barrister, combining his formidable intellect with a capacity for focused hard work. I had already briefed him in a political case. He had been impressive. He gave advice about building the case to challenge the detentions. The lawfulness of orders to extend detentions of people who had previously been unlawfully captured was highly questionable; he would be comfortable arguing that case.
The breakthrough, however, only came in mid-February 1984, with Samson and Hosea bringing Bennie to meet me at my house that evening.
The next day yielded more progress. In the morning, Samson brought Josef Katofa to my office. Two of his brothers, including Nikodemus mentioned by Bennie, were among the detainees at the Mariental camp. I was to learn later that Katofa was Samson’s key contact person in establishing the names of detainees, getting in touch with their relatives and Bennie, and subsequently persuading them to make affidavits in support of the case. This he did at considerable personal sacrifice, as subsequently emerged. Unbeknown to me, he was covertly picked up by the military and detained just before the case came to court.
Josef Katofa cut a very colourful figure as he entered my office, with his confident air and exuding charisma. His flashy sunglasses were ostentatiously tucked into his thick and bushy hair on one side, just below the brim of the cream Stetson hat he sported at a slight angle to accommodate the position of his sunglasses. His brightly coloured tie competed with a shirt of even more gaudy, clashing shades. He needed no persuasion to make an affidavit. He quickly cut to the point as he had other business to complete in Windhoek before returning the next day to his small cuca shop business at Eengolo not far from Outapi, in the Ombalantu area. (These shops were called cuca shops in northern Namibia after the Portuguese beer sold at them in earlier days, when it was sourced from nearby Angola.)
Katofa confirmed that he had heard of his brothers’ capture at the hands of the South African military from Bennie. He had more recently heard from fellow members of the Uukwaluudhi community who had visited their relatives at the camp near Mariental that his two brothers were also being held there. He also made more enquiries at Samson’s request.
I promised to prepare an affidavit that same day and requested him to return by no later than 4 pm so that I could accompany him to a commissioner of oaths for him to formally depose to it. He responded by undertaking to return to my office later, but that it would be ‘past four’. Despite my repeated entreaties, he would not be tied to a more exact time. I left it at that.
True to his word, at 4.25 pm and to my relief, his flamboyant figure appeared in my doorway. We were able to have the affidavit signed before a fellow attorney in a different firm. (Affidavits must be signed and sworn before a commissioner of oaths not connected to the case. Court officials, lawyers, bank managers and police officers are commissioners of oaths. The banks had already closed by then. Court officials were no longer available for this purpose after 3 pm. If he were to have come later, it would have meant going to the police station. This we clearly wanted to avoid. It was critical to keep the application under wraps so as to avoid interference with and intimidation of other witnesses.)
Samson, Hosea and I then planned to go to the northern war zone area of Owambo urgently to take affidavits from the other detainees’ relatives. Hosea and I would stay at the Roman Catholic mission at Okatana, near Oshakati. Owing to the very sensitive nature of the case, Father Stegmann requested that we consult witnesses elsewhere, given his church’s role in arranging visits of relatives to detainees, fearing that this facilitating role would be terminated and visits ended if they were seen to be assisting with this application. We respected that.
Hosea came up with a solution. His sister and brother-in-law owned a service station at Ongwediva, some 10 km from Oshakati. It was a convenient location. It had a small back office usually used on a weekly basis for consultations by a medical practitioner who was away pursuing a specialisation. It was available for us to use. No questions would be asked of us; it was perfect for our purpose. And the presence of people waiting outside to consult with us would not attract undue attention as people often gathered at the service station to secure lifts in minibus taxis to Oshakati. These were the only form of public transport in the area.
Samson would need to bring the witnesses from the Uukwaluudhi area to the service station, a distance of about 120 km. Hiring a minibus from a car rental company to do this may have aroused suspicion and attracted attention. We decided to approach the General Secretary of the CCN, Dr Abisai Shejavali, to permit Samson to use one of their vehicles. This meeting was hastily set up by my friend, Nora Chase, who had a senior position at the CCN at the time. A church organisation minibus conveying people within the