Spying Incident and Appeal
The next step for the defense was an appeal directly to the chief justice of South Africa. But before this effort could be mounted, events in the offices of Lorentz & Bone took an unexpected turn.
A few days after the end of the trial, a Mrs. C. M. de Beer, confidential secretary to Attorney du Preez, told him that she had been approached during the trial and asked to help spy for the Security Police. The approach had been made by Mrs. Elsie Ellis, the 27-year-old office receptionist/telephone operator. Mrs. de Beer said that she had not revealed this earlier because the Security Police had threatened her with detention if she told anyone. This threat alone, apparently, was enough to precipitate a miscarriage, which she had had shortly afterward.A meeting of the entire Lorentz & Bone staff was called that day. An announcement was made that there had been a highly confidential leak and that Mrs. Ellis had been discharged. Any others who had been approached by the Security Police were asked to identify themselves. A clerk, B. R. S. Mautschke, spoke up to say that one of the partners in the firm, Anthony Smit, had asked him if he were willing to convey information to the Security Police, and that he had refused to become an informer. He said that he had been present, moreover, on several occasions when Smit talked with Captain A. T. C. (Attie) Nel of the Security Police about cases undertaken by Lorentz & Bone, including the Mushimba trial at Swakopmund. An office boy, Andrew Pike, also reported that in mid-May Mrs. Ellis had confessed to him that she had been spying for the Security Police and that Smit was also involved. The partnership between Smit and Lorentz & Bone was dissolved forthwith and the decision was made to file a motion with the Supreme Court for a special entry into the record of the Mushimba trial.
The defense team had had suspicions early in the trial that they were being spied upon.
The main cause for their uneasiness was an encounter with the ubiquitous Lt. Dippenaar in a bar. He had been drinking substantially. When he invited Attorney Colin du Preez to join him and du Preez put a question to him, Dippenaar bragged that he knew everything that was in the defense files, including who was paying the defense fees.All these details were aired in a five-day hearing which began June 16, 1976. Justice Strydom was on vacation after the lengthy trial. The matter was an urgent one, and rather than wait for Strydom’s return, he was replaced by Justice M. J. Hart, his colleague. Appearing for the applicants were Wilfred Cooper and Hans Barker, who had conducted the trial, as well as an advocate from Johannesburg, I. A. Maisels, Q. C. The Attorney General of South West Africa, J. E. Nöthling, represented the state. Each side introduced eight witnesses, including the principals, Mrs. Ellis, Mrs. de Beer, Attorney Smit, and Captain Nel.
Judge Hart delivered his opinion on June 25. He noted at the outset that he had read neither the record nor the judgment in the trial itself, and that neither the conduct of the learned trial judge nor the events of the trial were challenged, but that “common justice and humanity required that the hearing proceed and that a decision on the application be reached with the least possible delay.”48 The matter before him, he observed, was “unique in South African legal history and indeed, fairly unique in the legal history of many other systems.”49 The issue was the breach of the privilege existing between attorney and client. He found that for the past four years there had been “a type of conspiracy between Mrs. Ellis and Capt. Nel to obtain confidential information from the offices of the defense attorneys, which establishes an exception to the Hearsay Rule, thus rendering such evidence [as conversations or, for instance, confessions to the office boy] admissible.”50 A wild card, such as the law of conspiracy, can at times be played against even the police.
Judge Hart was impressed by Mrs. de Beer as a witness, finding her “both intelligent and truthful,” but was incredulous at the testimony of Mrs. Ellis, who, he thought, “left the witness-box...thoroughly discredited.” Mrs. Ellis, it was revealed, had been a police informer since 1972, consistently associating with Capt. Nel, to whom she had given copies of documents in the Swakopmund trial, including such crucial items as a coded message from David Meroro, the exiled SWAPO leader in London, Hendrik Shikongo’s statement, and other defense material. Witnesses recalled that Mrs. Ellis especially volunteered to type several of the critical statements. Mr. Smit, the erstwhile partner, had violated his professional fealty by becoming an informer for Capt. Nel. Smit had unsuccessfully attempted to recruit a clerk as a co-informer but did provide Nel with facts about the case, such as a visit of counsel to London, the sources of fees payable, and how information about SWAPO had been gathered, activities which Judge Hart called “sor-did.” Capt. Nel, he said, was evasive in his testimony, but the Security Police is a dangerous organization, and “it is equally dangerous for members of this branch to disclose the sources of their information.” The court found Lt. Dippenaar to be candid and most probably unaware of the source of his information beyond Capt. Nel. The court concluded that the privilege between attorney and client had been seriously breached and the special entry must be made.51 This allowed the defense to include in its appeal to South Africa’s highest court all the details of the spying.
Appeal to the Supreme Court of South Africa, located in Bloemfontein, Orange Free State, was granted, and, a year to the day (February 15–16, 1977) after the Swakopmund trial opened, they heard the case. Cooper and Jansen faced each other as adversaries once again. On the bench were Judge Kotze, Judge Hofmeyr, and Chief Justice Rumpff.
Both the merits of the Swakopmund trial and the attorney-client privilege were argued.The Supreme Court’s decision was handed down on March 17, 1977, in a 28-page opinion written in Afrikaans by Chief Justice Rumpff. The Swakopmund trial was not touched upon, only the attorney-client privilege issue. The opinion began with an expression of understanding, although not sympathy, for the acts of the authorities dealing with SWAPO’s “dual existence.… an organization which ostensibly envisages peaceful political changes and is not banned, whilst there is an external wing of the party which advocates a militant policy and which also enjoys internal support, and which infiltrates terrorists into the Country.” In a climate where innocent people are murdered, it is not surprising that “some people are violently anti-SWAPO and are prepared to place authority and order above any other consideration. The question which arises in this case is whether a breach of the privilege between client and legal advisor upon such an attitude can result in a conviction of an offense being set aside.”52
The court noted that only one of the accused, Shikongo (still carrying his trial appellation, “Accused No. 3”), had been charged with being connected with the murder, and that he “was not charged with having murdered Chief Elifas, nor with being an accessory to the murder. The other five Accused were charged with acts which had no connection whatsoever with the murder of Chief Elifas.” The erroneous impression that the trial concerned the murder of Chief Elifas “must have placed all the Accused, except Accused No. 3, in an unfavorable light and which gave a wrong complexion to the case.”53
After recounting the facts of the leak involving Ellis, Smit, Nel and Dippenaar, the court concluded: “From the date when instructions to defend were received until the end of the case, the Security Police, through the medium of Captain Nel and Mrs.
Ellis, completely penetrated the defense and the privilege was simply eliminated.... In my view, the complete elimination of the privilege is not only an irregularity, but an extremely gross irregularity, which, so far as it concerns privilege, can scarcely be surpassed.” Justice Rumpff traced the breach from Nel to Dippenaar, who had acted virtually as Prosecutor Jansen’s junior counsel working in the closest cooperation with him, creating a channel “which ran from the office of the defense to the Prosecutor in the case.” Although Jansen was unaware of the channel, that it “was directly linked with the proceedings and during the entire period of the proceedings,” is beyond doubt.54 The judgment of the Supreme Court, concurred in by Judges Hofmeyr and Kotze, was that “the Appellants’ protection by privilege before and during the trial totally disappeared as a result of the conduct of the Security Police, that as a result thereof the trial did not comply with what is required in this regard by justice, and that, accordingly, justice was not done.55 The convictions and sentences were set aside.All four accused were released directly from their prisons in Pretoria and returned to Namibia. Victor Nkandi and Axel Johannes, upon expiration of their one-year contempt sentences for refusing to testify, were immediately re-detained. Lt. Dippenaar returned to Ovamboland to continue the investigation into the Elifas murder.
In the SWAPO trial both the legal and political agendas of the South African government failed. The question of who murdered Chief Elifas was not solved, and SWAPO was not discredited. If the government had been serious about the legal agenda, those who were tried would not have been indicted. Others, perhaps the real killers, might have been caught and tried. The preoccupation of the government with the political agenda did not, in the end, bear the fruit they wanted. They could not use the trial to justify banning SWAPO as an organization. They played with a wild card, South Africa’s Terrorism Law, which allowed the government a maximum of discretion in arresting, accusing, and trying nearly anyone they wished, but they did not win. The murder of Chief Elifas was a potential wedge, similar to the one Robert Cecil employed in the Gunpowder Plot trial against Jesuits and all Catholics. The Elifas wedge might have served to demonstrate the perniciousness of SWAPO and all Namibian nationalists. But in spite of the odds, it did not. Not all partisan trials turn out as the government desires. Sometimes those with power overreach.