An application by Mrs. Erica Beukes challenging the powers of the Administrator General and demanding the release of her husband, Hewat Beukes, from detention under AG 26, has been rejected by the Windhoek Supreme Court. The application, a test case, had called into question the validity of recent constitutional and legislative changes effected in Namibia by the South African government.
In a 28-page written judgement, the Judge President of SWA, Mr. Justice Badenhorst, found that Proclamation 181 (1977) which outlined the powers and functions of the Administrator General, and the Administrator General's subsequent Proclamation AG 26 (1978) which makes wide provisions for detention, were valid and with legal effect. He rejected arguments by Mrs. Beukes that the South African State President had acted beyond his jurisdiction or that he had given the Administrator General wider powers than he himself possessed.
Mr. Justice Badenhorst said that Section 38 (1) of the South West Africa Constitution Act clearly stipulates that the State President can pass laws with a view to the attainment of independence of South West Africa as well as "in all other matters". Section 38(2) of the Act showed that the State President was empowered to delegate his powers to "such legislator as he may see fit to install". If Sections 38 (1) and 38 (2) are read together, it was clear that the legislator intended the State President himself to install a legislator and delegate his legislative powers to such a "legislator", Justice Badenhorst said. The argument that the Administrator General had, in terms of Proclamation 181, been given more powers than the South African Parliament itself was unfounded in that the constitution of the Republic of South Africa (Act 32 of 1961) was not applicable to South West Africa. Section 37 (2) of the South West Africa Constitution Act specifically stipulated that full administrative powers over the Territory were reserved for the South African State President.
Justice Badenhorst also rejected Mrs. Beukes' argument that her husband's detention was unlawful as the names of the review committee appointed to investigate his detention were never published. Proclamation AG 26 contained no stipulation obliging the Administrator General to publish their names. The application was rejected with costs.
In fact, as the representative for the respondents (cited as the Administrator General, the government of the Republic of South Africa and officer commanding Gobabis Prison) pointed out, the State President's powers as far as South West Africa is concerned, are limitless. There are no restrictions as to what laws he may make regarding South West Africa.
