Trial: Openings

Six of the seven detainees Griswold visited were charged under the Terrorism Act as “members and/or active supporters of the South West Africa Peoples’ Organization…guilty of the crime of participating in terrorist activities.” Aaron Mushimba, a traveling bicycle salesman, was charged with giving R380 ($437, R then equaled $1.15), a Landrover, and some blankets to Victor Nkandi of SWAPO.

The South West Africa Division of the Supreme Court of South Africa, the highest trial court of the territory, convened at 10 A.M. on December 1, 1975, to begin the first formal proceedings in The State v. Aaron Mushimba and Five Others. A peaceful and well-disciplined group of blacks gathered on the steps of the Windhoek Supreme Court Building to sing SWAPO songs and display placards declaring “SWAPO Will Win,” “Freedom Now,” and “Illegal Regime [Has] No Right to Try the Just Cause.”¹⁴ When the doors opened, the demonstrators filed inside to the seats designated for non-whites. Inside and outside the police were busy taking photos.

Presiding was Judge J. H. Badenhorst of the S.W.A. Division. Flanking him were two assessors who help a judge weigh the facts but not the law. Appearing for the state was Advocate J. C. H. “Chris” Jansen, an ambitious young prosecutor specially brought up from Grahamstown in the Cape Province to try this case. The defense was represented by Advocate Hans Barker, an older lawyer from an established German family in Windhoek. He was instructed by an attorney, Colin du Preez, from the firm of Lorentz & Bone. The six accused, together with a policeman and the court interpreter, sat in a dock facing the bench. The only black court official was the interpreter. Instead of a bailiff or marshal to serve the court, as would be usual in U.S. practice, regular uniformed South African policemen, indistinguishable from those who make arrests, were used as court officials in this case. Their presence detracted from an appearance of impartiality.

Both sides proposed January 19, 1976, to the judge as an agreed-upon date for the trial to begin. Judge Badenhorst rejected that suggestion and proposed December 17 or 19 because the defendants had already been in jail for three months, and two and a half weeks should be enough time for the defense to prepare. Advocate Barker objected strenuously, reminding the court that they had been charged only a few days previously and that there were many witnesses in Ovamboland who must be interviewed before the defense would be ready. Jansen for the prosecution requested that the trial be held in the coastal resort town of Swakopmund. No reasons were given, but it was assumed that the state believed Swakopmund’s small size and isolation preferable to Windhoek, the capital, with its 70,000 population, and with demonstrations more likely. The defense objected, citing the inconvenience of transportation and legal research in Swakopmund. After a tea break Judge Badenhorst announced that the trial would begin February 16 in Swakopmund. Court adjourned.

Two Security Police officers, Col. Willem Schoon, one of Griswold’s guides, and Lt. Gert Dippenaar, had been assigned to the case immediately after the murder of Chief Elifas. State advocate Jansen was brought into it shortly after Griswold arrived and, by then, had only to decide whom to prosecute, whom to use as witnesses, what the charge sheet should say, and how the trial preparation should be done. The basic groundwork had been done by the police and handed to him.¹⁵

By contrast, the defense began its trial preparation much later and with only the charges, a statement taken by the police from each defendant, and a list of thirty-one prospective state witnesses, i.e. people with whom the defense could not tamper. Church leaders instructed Lorentz & Bone to engage David Soggot, a leading Johannesburg advocate, but he was planning the defense in the terrorism trial of the leaders of the South African Student Organization and the Black Peoples’ Convention (SASO/BPC), another major South African trial. The defense then turned to Dr. Wilfred Cooper of Cape Town as senior counsel. Advocate Barker would stay on as junior counsel.¹⁶ David Soggot was able to assist in the investigation, although not in the trial, before he was called to Pretoria for the SASO/BPC trial.

In their interviews in prison the four defense lawyers, Cooper, Soggot, Barker, and du Preez, found culture a greater barrier than language. In an apartheid society why should six blacks, already held for several months under the hostile care of the police, immediately trust and confide in four white strangers just because the latter had been hired by a church that the prisoners did trust? Besides, who could say that the police might not place an informer among the lawyers, a fear that, as it turned out, was well founded. Although Nangolo and Mishimba were Windhoek businessmen and Nangolo had been a South African policeman, their dealings with white society’s European assumptions could not overcome the cultural differences and the master/servant mentality of South Africa.

The Terrorism Act, in addition to its other nightmares, thwarts defense efforts with a catch-22 option. With the burden of proof placed upon the defendant, witnesses in this case would be essential for any kind of defense. Prospective witnesses named in the charge sheet or mentioned by the accused, assuming they could be found, might incriminate themselves and endanger others in SWAPO if they did testify for the defense. Those outside, if found, would not return to Namibia. Those in Namibia would neither come forth nor cooperate if found. Active SWAPO supporters and guerrillas regarded the law illegal, the court a fraud, and the government occupation of their homeland illegitimate. Counsel did fly to London to interview David Meroro, the SWAPO national chairman who slipped through the dragnet after the murder of Chief Elifas, but he was tense and uncommunicative, providing nothing useful for the defense. A trip to Zambia proved similarly unsuccessful.¹⁸

Through Lutheran and Anglican church people, the lawyers were able to arrange consultation with witnesses in the home of a Finnish missionary. Throughout the consultation a police vehicle drove around and around the house, hardly providing a setting which would inspire openness. After the lawyers had left, the assistant to the Lutheran bishop received a call from the chief minister of Ovambo who asked why the church was cooperating with terrorists and their defense lawyers in covering up the murder of Chief Elifas.¹⁹

The trial opened in Swakopmund on February 16, 1976, in a politically charged atmosphere that would not favor the defendants.

Small groups of blacks began to gather early in the morning outside the modern two-story glass and concrete courthouse located next to the mansion of the administrator for South West Africa, close to the police station, and two blocks from the sea shore. By 9 A.M. a fairly large demonstration with placards and songs was in progress, but by 9:50 the singing ended as the demonstrators filed into the courtroom to take spaces behind the rows allotted to whites. Most blacks were not admitted but remained outside in a sandy lot on the hot, sunny north side of the courthouse. During lunch break they resumed the demonstration, but when they did not disperse quickly enough for the police, the crowd was rushed with swinging batons and dogs.

In the courtroom the six accused sat in the dock facing the judge’s bench. Nearby was a black court interpreter who would translate the proceedings from Afrikaans to Ovambo. Seated at a table directly in front of the dock were the counsel: Cooper and Barker for the defense and Jansen for the state. But seated between Cooper and Jansen at the counsels’ table, as though he too were an advocate, was Lt. Dippenaar, the investigating officer. Seeing the security policeman who interrogated them in prison now watching from the counsels’ table, next to their own counsel in fact, must have confused the witnesses and troubled the accused.

At precisely 10 A.M. a South African policeman cried out in Afrikaans: “Silence in the Court!” In strode Judge J. J. Strydom, an associate justice of the South West African Division, wearing his red criminal trial robes. Contrary to the expectation of the defense, he was without assessors. The charge was read, translated, and the six accused pleaded not guilty. Throughout the trial, as is custom, the accused were referred to as “Accused No. 1” or “Accused No. 2” instead of by their proper names. When their names were used, only the first name was mentioned, not their family names. In speaking to blacks the Afrikaans familiar second person jy was used, but when speaking to whites, the formal second person u was employed.