The 54 Kassinga detainees released in May after six years in a South African army detention camp in southern Namibia were faced with unemployment, homelessness and destitution, according to a letter from a Namibian priest to the Windhoek Observer. Many were given temporary accommodation at the Roman Catholic mission at Döbra until they could find work or go and visit their families.
Those who had managed to go home straight after their release were returning to Windhoek. Their relatives felt frightened that the presence of the released detainees could threaten their own safety as well as that of the returned prisoners, and advised them to go south for safety (WO 16.6.84).
Among the 54 released detainees were 31 whose names had been submitted in the court case brought by church leaders and relatives, and which had been banned by the South African State President on 27 April. Five of the original 37 named in the court case remain in detention, while one person was reported to have been listed under two names (FOCUS 53 p.11; CT 29.5.84).
Those released are: Erasmus J. NHINDA, Daniel SHEKUNYENGE, Josephine SAKARIAS, Ester SHIKONGO, Kakwaya ANYALA, Aluteni PINEHAS, Tomas JOHANNES, Efraim KATOFA, Shombe DAVID, Nikodemus KATOFA, Eva TITUS, Abrahams LAZARUS, Achiles ANGULA, Fidelis SHIKUYENI, Slema NUUNYOMA, Kornelia EMVULA, Sofia HINALULU, Helena NASHILONGO, Heinrich AMAKALI, Friderik SHILONGO, Frasina IITENGE, Elizabeth JONA, Albertina LINUS, Amakali Christophina JONAS, Amwama NELAGO, Laina ANDREAS, Veronica FESTUS, Petrina GIDEON, Selma Januarie SHOOPALA, Christophina SHALONGO, Martha CHRISTIAN, Lucia MATHEUS, Veronica PAULUS, Helena SHIVUTE, Stefanus PENDUKENI, Gideon AMWELE, Joseph Shimbwundu AUWANGA, Jona JONAS, Justina ABRAHAM, Dawid KRONELIUS, Shimbilinga FREDERIK, Selma Martha Martin KAMATI, Louisa MATHIAS, Ester DAVID, Naemi KALILI, Laimi SHUUYA, Fenni Fiina SHINYEMBA, Sarafia SHEEHAMA, Gustav SAKARIAS, Paul I. IIPUMBU, Martha MIKA, Bernadette STEFANUS, Gabriel ENDJALA, Joseph Thomas HIDULIKA (Amnesty International, 8.6.84).
The court case for the release of the remaining five detainees listed in the original application resumed on 28 May, in spite of the ban issued under the South African Defence Act.
In what was described by Namibian lawyer as a 'constitutionally crucial' case, lawyers for the detainees argued that the certificate banning the case should be ignored as it was 'ultraviolet' and that the five detainees be produced in court forthwith and released. The South African Minister of Justice had acted beyond his powers in issuing a certificate to stop the court proceedings.
Senior counsel appearing for the applicant claimed that the military had 'no right to capture citizens of this country and hold them' The arrests had been unlawful because the detainees did not enjoy prisoner-of-war status.
The Windhoek Supreme Court ruled on 2 June that no order could be made for the release of detainees from Mariental internment camp because of the banning of the case (RDM 23.6.84).
The five still in detention are William AMUTENYA, Benny AUSIKU, Ruben HAMUTENGELA, Thomas NGOTUKURA and Amalia AUPINDI. A total of 76 Kassinga detainees are believed to remain in detention following the release of the 54 (WA 29.5.84).
The Supreme Court in Windhoek has delivered judgement in a case which challenged fundamentally the right of the South African authorities to legislate for Namibia. The case involved Erick BINGA (22), a SWAPO member who refused conscription into the South West Africa Territory Force (SWATF).
Binga's resistance began in November 1982, when he was called-up to join the second South African Infantry Battalion in Walvis Bay. His initial application for exemption from military service was refused. In June 1983 his father took the matter to the Supreme Court naming as respondents the Administrator-General of Namibia, the South African Minister of Defence and the Chairman of the SADF Exemption Board. The significance of the case rested on the demand that Binga's call-up papers be declared invalid because South African laws had been imposed illegally on Namibia (see FOCUS 48 p.8, 52 p.4).
Three judges including the Judge President of Namibia, Justice Berker, took over four months to consider the issues presented during the court hearing on 7–8 February. On 21 June they dismissed the application with costs.
Binga's lawyer argued that since South Africa's Mandate over Namibia had been revoked by the United Nations it was no longer legally entitled to pass laws for the territory. Alternatively, if the court ruled the Mandate still in force then the South African Defence Act, under which conscription was extended to black men in Namibia, conflicted with article four of the Mandate (RDM 9.2.84).
In his ruling, Judge Strydom stated that the South African State President had 'transferred' authority to the Administrator-General for the administration of certain provisions of the Defence Act, No. 44 of 1957 in South West Africa' and under Proclamation 131 of 1980 he could 'require persons to register or enrol in the SWATF.' He backed up the ruling against Binga with his interpretation of the United Nation's position. He referred to South Africa's 'co-operation' in the implementation of UN Security Council Resolution 435, saying: 'This, to my mind, clearly demonstrates the Security Council of the United Nations deems the co-operation of South Africa necessary for a settlement of the South West Africa situation, and anxious for South Africa to retain its authority in the Territory pending a settlement.' He concluded that South Africa had acted within the bounds of its authority (WA 22.6.84, CT 22.6.84).
In a supporting judgement Justice Moutor ruled that laws in conflict with the Mandate need not give way to it as the terms of the Mandate were not part of Namibia's 'municipal law'. Justice Berker concurred with his colleagues without comment. (WA 22.6.84)
It was claimed that if the court action had succeeded it would have set a 'dangerous precedent' for the authorities. An unnamed SWAPO member stated that 'hundreds of young SWAPO members called up to join the South African Defence Force may have used the precedent set by Binga's case if the outcome was positive'. Binga had been a member of SWAPO since 1977 and submitted his membership card in support of his case. In addition, his elder brother Ismael Binga, had joined PLAN, SWAPO's armed wing, after leaving the country in 1978. Since the extension of conscription to black Namibian males in 1980 the authorities have sought to deal with the security problems posed by SWAPO conscripts without exempting them from the draft (FOCUS 36, p.3, WA 16.2.84, 26.6.84).
On 29 June lawyers for Binga announced they would seek leave to appeal against the court's decision (RDM 30.6.84).
