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.
Operation Alicia Mae
1992 26
There was nothing special about the Alicia Mae. Not at first sight, at any rate.
Johann Weber’s passion for cars had translated into possession of one of the most sought-after sports cars of all time, a very rare left-hand-drive 1964 Porsche Carrera 356C convertible. Since achieving senior counsel status and the obscene fees that this status commanded, he could afford to drive any car he wanted, but he preferred the Carrera to the modern cars with their power steering and air conditioning, their electric this and electronic that, their hand-stitched leather interiors and muted engines. He drove the Carrera on Fridays, top down if the weather permitted, and listened with ill-concealed delight as the purr of the two-litre engine turned first into a howl and then a scream as the rev counter advanced beyond six thousand. At low revs in the city traffic, the air-cooled, rear-mounted engine emitted a sound reminiscent of a lion’s chesty purr. Every now and then he caught himself looking in the rear-view mirror to see if there was a pair of yellow eyes watching him from behind.
The car was as simple to work on as it was special, and Weber enjoyed tinkering with it, reconditioning parts, polishing the chrome, washing and waxing the paintwork.
He was lost in thought and nearly rammed the figure huddling in his parking bay against the wall. ‘Jesus, Pierre!’ he exclaimed when he had come to a sudden stop. ‘I could have run you over.’
Pierre de Villiers stood dripping wet in a puddle of water. His jeans and sailor’s shirt were soaked and he was barefoot.
‘What’s going on?’ Weber as
ked.
De Villiers came around to the driver’s door. ‘They threw me off my ship.’
‘What, literally?’ Weber asked, taking in the bedraggled figure of his brother-in-law. ‘You mean, as in throwing you in the drink?’
‘Literally, over the side,’ De Villiers confirmed. ‘They came along-side in a strike craft and surprised me in my bunk. They allowed me to put on my jeans and shirt, frogmarched me topside and threw me over the rail into the bay.’
‘Shit,’ Weber said. ‘And I was hoping for a quiet Friday.’
‘I’m sorry,’ De Villiers said, and opened the door for him.
Weber lifted his briefcase off the back seat. ‘Don’t worry. It will be quick. Where’s your ship now?’
‘They towed her to the naval base at Salisbury Island.’
‘Are you able to identify them?’
‘Strike Craft P1561. Officially named the SAS Jan Smuts. Also known as Patches, after all the repairs they had to do in the Israeli shipyard.’
‘Let’s go. We have a case on our hands,’ Weber said.
‘I need some clothes first. I can’t go to court like this.’
‘No, Pierre. I’m going to take you to court exactly as you are. We have to show that the case is urgent and I can’t think of any better proof than you standing there barefoot and dripping wet.’
Weber’s reception area was deserted. He turned the kettle on in the adjoining kitchen. ‘Rooibos, one sugar, as I recall.’
They carried their cups to Weber’s chambers, and stood side by side at the window, looking out over the bay. ‘Salisbury Island is over there behind the container terminal,’ De Villiers indicated, ‘but you can’t see it from here.’
‘I know,’ Weber said. ‘You forget that I was in the navy. A long time ago, I know, but we came here once and moored at the island. I was on the President Kruger.’
‘She’s below the waves now,’ De Villiers said.
Weber grinned. ‘But I got off in time, ten years earlier.’
‘Some people died on that ship,’ De Villiers commented.
‘I knew some of them,’ Weber said and returned to his desk. De Villiers remained at the window with his hands in his pockets. Weber called him back. ‘Come and sit down. Don’t worry about the chair. Now tell me exactly how you came to have the ship registered in your name.’
‘They needed a ship for a special operation.’
‘So what is the argument about now?’
De Villiers hesitated before he spoke. ‘They put her in my name and promised me a special pension of one million rand when the operation was completed. But when I arrived here with the ship, they said the operation had been terminated. They said they wanted their ship back. I asked for my pension, and they said I was a captain in the army, and that I would get the normal pension when I reached retirement age.’
‘And then?’
‘They wanted to give me orders, but I said I wasn’t in the SADF anymore. I said I was going to sail the ship back to Malta and sell her to get the pension they had promised me. That’s when they came with that first application.’
‘Who?’
‘I can’t tell you,’ De Villiers said.
‘Alright, then. But I can guess. It’s some strange, unnamed unit operating outside the usual command structures of the SADF.’
De Villiers stood up and went back to the window. Weber picked up his dictaphone and started speaking. ‘Please do a notice of motion, an affidavit and a certificate of urgency for me as follows. The notice of motion first. In the Supreme Court of South Africa, Durban and Coast Local Division, sitting as a court of admiralty, case number to be inserted. In the matter between Pierre de Villiers, applicant, and the Minister of Defence of the Republic of South Africa, first respondent, and the Commander of SAS Jan Smuts, second respondent.’
De Villiers turned to speak but Weber continued dictating. ‘… the following orders,’ he heard behind him. ‘An order calling upon the respondents to show cause, as a matter of urgency at 2:15 today, why the following orders should not be made final: One, an order directing the respondents to restore possession of the motor vessel Alicia Mae to the applicant forthwith. Two, an order interdicting and restraining the respondents, or anyone acting under their orders and under their command, from assaulting and/or threatening the applicant. Three, an order directing the first respondent forthwith to issue an order to all armed forces under his command notifying them of the order in paragraph two of this order and ordering them to comply with it. Four, an order directing the first and second respondents to pay the costs of the application on the scale as between attorney and client.’
At the window, Pierre de Villiers had to smile.
At 9 a.m. Johann Weber SC stood in the judge’s chambers with his client still barefoot beside him. The judge laughed. ‘Okay, okay. You’ve made your point. I’ll issue a rule returnable at 2:15. You’d better serve it on the state attorney on your way back. Then we’ll see what the minister has to say for himself after lunch.’
Weber waited for the judge to note the order and to sign the front of the file cover. The judge slid the file towards him. ‘Better get going,’ he said. ‘I’ve still got to get through the motion court roll.’
They were disappointed when the respondents failed to turn up for the hearing at 2:15 p.m. Instead, the state attorney arrived on the run and out of breath. But he was in good spirits. ‘I’m sorry I’m late,’ he said, ‘but it took me a while to explain to those jokers in Pretoria what a spoliation order is. They have no idea of what it means.’
‘Do you want time, Graham?’ Weber asked. ‘To file affidavits?’
‘No,’ the state attorney replied. ‘I think we can settle this.’
‘Make me an offer,’ Weber said.
‘We’ll consent to the order, except for the costs aspect. We think attorney and client costs is a bit heavy.’
‘Come on, Graham,’ Weber said. ‘This is the second time. And they literally threw him off the ship into the bay. There is assault involved, robbery in fact. And since they were armed and used weapons to threaten my client, this was armed robbery. And if you want to be technical, it is piracy: the unlawful taking of a ship by force. People go to jail for this. And you won’t find a more blatant instance of taking the law into your own hands in the law reports. It’s not as if they don’t have access to legal advice up there.’
The state attorney held his hands up in surrender. ‘Alright. I told them I would try and I’ve tried. Take it by consent.’
They went into C Court and the judge came in to grant the order by consent.
On the way out, the state attorney said, ‘The next time, we’ll do it right.’
‘Is that a threat or a promise, Graham?’
The state attorney smiled. ‘As if it makes a difference.’
‘Order granted as prayed,’ Weber said as he shook hands with De Villiers.
‘Good,’ De Villiers said. ‘Is the sheriff going to fetch my ship or do I go myself?’
‘Go and wait for her at the place where she was moored. They’ll bring her around in an hour or so,’ Weber said. ‘I’ve made the arrangements with the state attorney.’
‘Thanks,’ Pierre de Villiers said.
‘It’s too soon to say thank you. This is just the start. They’ll come back quickly, and if I know my friend from the state attorney’s office, they’ll do it properly this time round.’
‘Thanks,’ De Villiers said a second time.
‘Pierre,’ Weber said, ‘who are these people? Are you going to tell me, or leave it to me to guess?’
De Villiers shook his head. ‘I can’t tell you. That’s my part of the deal. And I intend to honour it.’
The state attorney was true to his word and issued arrest papers for the ship. De Villiers watched as the sheriff approached in a small pilot’s boat. Once alongside, the sheriff picked up a loud-hailer. ‘Ahoy,’ he said dramatically. ‘I’m the sheriff of the Supreme Court and I have paper
s to serve on you. I have to come aboard.’
De Villiers dropped the gangway and steadied it.
The sheriff handed him a sheaf of papers and said, ‘I have to place your ship under arrest. Your lawyers will explain the finer detail to you, but what it means is that the ship is now in my custody and that you are not allowed to take her anywhere. Is that understood?’
De Villiers was used to the voice of authority and nodded.
‘I need you to stay on the ship for the time being,’ the sheriff said. ‘Once I have been able to make alternative arrangements for her safekeeping, you’ll have to leave. How many crew do you have on board?’
‘Five,’ De Villiers said.
‘They will also have to go.’
De Villiers went to court with Johann Weber for an order declaring the arrest to be a malicious proceeding and to set it aside, but the judge dismissed the application with costs. They had been outmanoeuvred.
Operation Alicia Mae
August 1992 27
After Weber and De Villiers had lost the previous round so decisively, a change of tactics was required. They found an exit strategy in the admiralty rules, which allowed them to file their own arrest papers and to bring an application for the sale of the ship. The Alicia Mae was technically army property, although registered in De Villiers’s name as a subterfuge. They both expected the Minister of Defence, the nominal defendant representing the SADF, to prevail in the long run, but they were not interested in the long run. All they wanted was a quick but honourable exit.
They prepared the application papers in some haste, but did not file them at court as the rules required. Instead Weber phoned his friend at the state attorney’s office.
‘Graham,’ he said when he had been put through, ‘we’ve issued our own arrest papers and have also prepared an application for the sale of the boat by public auction and the establishment of a fund to be kept under the control of the registrar until we have completed the litigation, but we haven’t filed the originals at court. I’m sending a copy to you by hand, Graham, for you to consider and to let us know whether we should file them at court where they will become part of the public record of the case.’
A Sailor's Honour Page 15
