Legal experts in Namibia have described a case brought before the Windhoek Supreme Court in February this year as 'the strongest challenge to South Africa's legitimacy in Namibia' since the World Court ruled in 1971 that its occupation was illegal.
The case is that of Erick BINGA (21), a member of SWAPO from Vaalgras, who is contesting the right of the South African authorities to conscript him into the South West Africa Territory Force (SWATF) for military service and is seeking to have his enlistment nullified. After hearing arguments on points of law on 7 and 8 February, the Supreme Court adjourned the hearing indefinitely for judgment. There was speculation that a ruling might only be given after a month or two.
Erick Binga was called up for two years' duty in November 1982 by the Keetmanshoop military headquarters of Sector 60. He was due to serve in the Second South African Infantry Battalion at Walvis Bay from January 1983 to January 1985. His father, Eduard Binga, brought the matter to the Supreme Court in June 1983 after an application for exemption for military service was turned down. The Judge President was asked to declare the call-up papers invalid, on the grounds that South African laws had been imposed illegally on Namibia and without consulting Namibians themselves.
When the Supreme Court resumed its hearing on 8 February 1984, legal argument was put on Erick Binga's behalf by Ian Farlam SC, of the Cape Town Bar. His five hour statement before a packed courtroom rested on two main points: firstly, that South Africa was going beyond the terms of its mandate to administer Namibia in conscripting black Namibians for military service. Article Four of the mandate, awarded to South Africa on 17 December 1920 by the League of Nations, stipulated that 'military training of the natives, otherwise than for internal police and the local defence of the territory, shall be prohibited'. The court could rule that the requirements of the mandate still had currency, Farlam said, even though its termination in October 1966 by the UN General Assembly (Resolution 214) had invalidated South African rule in Namibia. 'The mandate constitutes, in fact, a bill of rights for the inhabitants of the Territory', Farlam said. 'Legislation which purports to take away the rights of the inhabitants is invalid'.
Conscription under the terms of the South African Defence Act was extended to black Namibian men in October 1980, through the State President's Proclamation 198 of 1980 and Proclamation AG 149.
secondly, that the South African government was also exceeding Article Four of the mandate in requiring Erick Binga to undergo military training in Walvis Bay, which it itself regarded as part of South Africa.
In a sworn statement in support of the application, Erick Binga said that he was a member of SWAPO and could not join a South African-controlled army. His eldest brother, Ismael Binga, was a member of SWAPO's military wing in Angola and he found it unacceptable that two brothers should be expected to fight each other in war.
As far as the Windhoek Supreme Court's own powers were concerned, Farlam argued that Section 59(2) of the South African Constitution Act did not apply to Namibia. The section stipulated that courts of law passed not only rule on the validity of acts passed by the South African legislature.
The respondents in the case are the Administrator General of Namibia, the South African Minister of Defence and the Chairman of the SADF Exemption Board.
In adjourning the hearing until a date to be set for a ruling, Mr Justice Bekker stressed that the issues involved were so weighty, and had such vast ramifications, that the court could not come to a hasty decision. Lawyers said that should Erick Binga's application succeed, it would directly affect thousands of black Namibians conscripted into the South West Africa Territory Force (SWATF) since the end of 1980 and could also have a 'found effect' on all laws passed by South Africa since the termination of the mandate.
