Durban 1992

25

The Alicia Mae crept into Durban Harbour late at night and berthed at a commercial berth, away from the Navy installations. When dawn broke the next morning, the SADF served court papers on De Villiers.

‘We want the ship back,’ an officer accompanying the court sheriff said. ‘Your operation has been terminated.’

When they had left, he read the papers carefully. It was clear enough that they wanted the ship back, but the documents said nothing about the agreement he had made with the major: nothing about his pension, nothing about the million rand he had been promised. He went to see his brother-in-law. This was a matter for lawyers, not soldiers.

Johann Weber SC looked out at the harbour from his twelfth-floor office – chambers, the advocates who occupied the building called them somewhat pretentiously. August in Durban was usually windy, but the day was sunny and calm.

There were ships at every berth. Weber watched cranes and straddle carriers engaged in their work, at this distance as if in slow motion. The container cranes moved languidly to place their loads in precisely the right slots on the waiting ships, a computer guiding each container to its slot. A dredger slowly chugged along the Maydon Channel, dredging silt from the bottom and spewing it into its hold to be dumped out at sea. Weber knew that below the apparent tranquillity was a world of action and, when things went wrong, chaos.

The scene below mirrored what was happening in the advocate’s chambers. Outwardly calm, he was in the final stages of preparing for a court appearance where the dynamics of a contested hearing would take over and create its own course, one which Weber knew he could neither accurately predict nor completely control. Behind him his client sat mute.

‘You stay here,’ Weber said to Pierre de Villiers. ‘I’ll meet you back here and tell you what happened.’

De Villiers was a captain in the Army, attached to 4 Reconnaissance Unit, a SpesOps outfit specialising in waterborne operations with their base at Langebaan in the Cape. Pierre’s latest operation had given rise to the litigation, which now required Weber’s special skills as a maritime litigation specialist. The case involved a ship, one unlike any which had sailed the local waters before.

‘Be careful, Johann. You don’t know these people,’ Pierre de Villiers said. ‘They are powerful and dangerous. They have no conscience and they don’t recognise legal boundaries.’

Weber adjusted his court jacket and slipped two Montblancs into his top pocket. ‘I know them better than you might think,’ he said. ‘I’ve done work for them or, at least, for their masters.’ He was referring to the ministers of state who, through the state attorney’s office, spread their briefs among the Afrikaans-speaking advocates at the local Bar, on the assumption that they were more likely to support the government’s policies than their English-speaking colleagues.

‘They have money and resources and stamina,’ De Villiers said. ‘If we take them on, we must be prepared for the long run.’

‘It’s your case, Pierre,’ Weber said. ‘We run it until you call it off.’

‘No way am I giving in,’ De Villiers said. ‘I made a deal with them, and a deal is a deal.’

‘Who are they, exactly?’ Weber asked.

‘I can’t tell you,’ De Villiers said with a shake of the head. A lean, angular man with a head of very strong blond hair, he appeared to be at ease even though he was in a fight for his livelihood. ‘A deal is a deal, and my part of the deal is to keep every aspect of the operation secret.’

Weber found his opponents waiting for him at the entrance to C Court. There were three of them, two dressed in the sombre black and white of the advocate’s uniform, the third in a dark suit with a white shirt and unremarkable tie. Weber recognised the senior deputy state attorney immediately and shook his hand.

‘Hello, Graham,’ he said.

The state attorney, who in this case was opposing his side, made the introductions. ‘Johann Weber. Tertius Bosch and Francis Pelser are from the Pretoria Bar, Johann.’

The advocates shook hands. Bosch wore senior counsel’s robes, the same as Weber’s, but Pelser looked no older than twenty-one, the minimum age for an advocate; his robes were shiny and new while Bosch’s showed signs of wear at the edges.

‘Have you met the judge yet?’ Weber asked. Convention required an advocate to introduce himself to the judge before appearing before him.

‘No, we were waiting for you,’ Bosch said. ‘We couldn’t go in without you.’

‘Follow me,’ Weber said.

‘I’ll stay here,’ the state attorney said. ‘The judge knows me.’

Weber led Bosch and Pelser through the courtroom to the judge’s door behind the bench and through the deserted passage to the judge’s chambers. The registrar was waiting for them at the judge’s door and led them in. The judge was already in his robes.

‘Judge Barstow,’ Weber inclined his head towards the judge, ‘and my colleagues from Pretoria, Bosch and Pelser.’

The judge came from behind his desk and shook hands with the Pretoria advocates.

‘Take a seat,’ he said and motioned towards a coffee table with four lounge chairs arranged around it.

The lawyers waited for the judge to be seated first and then sat down.

‘I see they’ve brought the big cannons down, eh Johann?’ Judge Barstow said. ‘I’ve read the papers,’ he added. ‘I take it you will ask for time to file affidavits to oppose,’ he said to Weber.

Johann Weber nodded but was interrupted by Bosch before he could speak. ‘But they’ve had two days to file affidavits, Judge.’

Judge Barstow steepled his fingertips over his chest. ‘I see an argument coming. Let’s do it in court and on the record.’ He stood up and the advocates followed suit. ‘I’ll see you in court in five minutes.’

Weber led the procession back to the courtroom. The judge entered the courtroom on the stroke of 2:15 p.m.

‘I call the case of the Minister of Defence versus De Villiers,’ the registrar intoned and turned to hand the court file to the judge.

Bosch stood up and waited for the judge to make eye contact. ‘May it please M’ Lord. I appear for the applicant, together with my learned friend, Mr Pelser.’

Weber rose and waited for the judge to complete his note. He glanced at Pelser. To have a brief of this magnitude in the early years of practice meant that Pelser had to be politically connected, close to the seat of power in Pretoria.

‘And you appear for the respondent, I assume, Mr Weber?’

‘I do, M’ Lord.’

‘Well, let’s hear what Mr Bosch has to say.’

Bosch stood up and placed his papers on the lectern in front of him. ‘This is an urgent application by the Minister of Defence for the recovery of Defence Force property from the respondent,’ he began his presentation. ‘A ship called the Alicia Mae.’

Judge Barstow raised his hand, signalling that Bosch should stop. ‘I’ve read the papers,’ he said, ‘and subject to what Mr Weber might have to say about time for the filing of answering affidavits, my prima facie view is that the papers make a case for an interim interdict save for one aspect of the matter.’

Weber groaned inwardly. The last thing he needed was a judge who had made up his mind before hearing any argument.

‘As M’ Lord pleases,’ Bosch said. ‘Would it be convenient for me to deal with M’ Lord’s concerns now before I deal with my main argument?’

‘Yes, that would be convenient,’ Judge Barstow said with a thin smile. Weber knew that to be a bad sign.

Bosch was diplomatic. ‘May I enquire what M’ Lord’s concerns are so that I may deal with them?’

‘Yes, you may,’ Judge Barstow said. ‘I would like you to address me on the admissibility of the founding affidavit, the affidavit made by …’ The judge made a show of paging through the court file to find the name.

‘Gustav Preller,’ Bosch offered.

‘Indeed,’ Judge Barstow said. ‘I am concerned about the admissibility of the evidence in this affidavit. Perhaps you could start by reading the introductory part of the affidavit at page four of the papers?’

Bosch obliged. ‘I, the undersigned, Gustav Preller, do hereby make oath and say: One. The name Gustav Preller is not my real name but my nom de guerre. For security reasons and in order to protect my family I am not at liberty to disclose my true identity to this Honourable Court.’

‘Stop there,’ Judge Barstow directed. ‘Does this mean that we have no means of knowing who the witness is? And if that is so, how is the respondent to answer a case brought on the evidence of an un-identifiable witness?’

Bosch took his time to compose a reply. ‘It would appear so, M’ Lord, but we have good reason to approach the court in this manner.’

‘I’m sure you do,’ Judge Barstow said, the smile now so strained that the blood had drained from his lips. ‘But I know of no rule or principle which allows for such a procedure. A respondent is entitled to know who the witnesses are so that he may respond to their evidence. I need to know who is giving evidence before me, do I not? How else can we determine the value or even the admissibility of this man’s evidence?’ The judge waited for the import of his questions to sink in. ‘Do you have any authority for what you’ve done here?’

‘No, M’ Lord,’ Bosch conceded immediately.

‘Well then,’ Judge Barstow said. ‘It won’t be necessary to entertain Mr Weber’s request for time to file affidavits. The application is dismissed with costs.’

Before Weber could rise to mumble the customary, ‘As it pleases the Court,’ the judge was at the door waiting for the usher. Weber was displeased with himself for having missed the point.

Tertius Bosch left his place and stepped behind Pelser, who was sitting with his head in his hands, to approach Weber. ‘I would have said, “Well done,” except you didn’t have to say a word,’ he said.