Recusal Still Pending


WINDHOEK Magistrate Maria Mahalie, who had presided over the Lazarus Kandara Inquest early this year, will have to wait another two weeks before she hears whether she can continue or be finally recused from the bench. High Court Judge Kato van Niekerk yesterday set the date for judgement for June 26, 2006 at 10:00 am when she will deliver the verdict in the First Motion Court. The hearing was postponed on April 28 this year by Judge van Niekerk at the request of Windhoek Magistrate Mahalie who was being asked to recuse herself from presiding over the inquest into the death of the Avid Investment Corporation’s Chief Executive Officer, Lazarus Kandara. The postponement was granted after Magistrate Mahalie told the presiding judge that she could not proceed with the case due to circumstances beyond her control after her lawyer withdrew from representing her in the matter in search of another lawyer instead The case continued yesterday when the application for the recusal of the magistrate was heard in the High Court. During the first morning session Mahalie’s lawyer Shafi-mana Ueitele put across his point based on his client’s affidavit, saying that the respondent (Mahalie) did not deny that she was at the funeral, but said she was not one of the mourners. In the affidavit filed with the High Court, the Magistrate states: “I deny that I was one of the mourners at the deceased’s funeral.” The affidavit reads: “While in Otjiwarongo for that weekend, I did not attend any activity at the deceased’s family’s house, nor did I go to the church service or to the grave of the deceased.” Stressing more the meaning of the word “mourner” in this context, arguments were made that this word is associated with grief, emotion and relationship with Kandara. However, Ueitele refuted this saying that the “mere attendance by the First Respondent is not a reasonable ground”, for it to be considered as bias. He added that this does not point to bias on the part of Magistrate Mahalie. He noted that the apprehension over bias was not justified and said that the First Respondent did not make a U-turn. Advocate Dave Smuts is acting for the applicants on the instructions of lawyer Sisa Namandje, who was representing the four police officers subpoenaed to give evidence in the inquest. The four people who are asking the High Court to take Magistrate Mahalie off the inquest and are challenging her refusal to recuse herself with an urgent application, are Oscar Sheehama, former Commanding Officer of the Police’s Serious Crime Unit, and three still-serving members of that unit, Detective Sergeants Linekela Hilundwa, Frans Kantema and Detective Constable Chaolin Tjitemisa. They were all present at yesterday’s hearings. Advocate Smuts requested that the court finds “reasonable suspicion of bias” with regard to her attendance at Kandara’s funeral. Argument was given that the points given by the First Respondent’s lawyer is not substantive enough. “There’s a whole web of deceit and the explanations (given) are convoluted and evasive. Either there’s a failure to get an explanation when its called for or there’s no proper explanation,” said Advocate Smuts during the second session of the case yesterday afternoon. A request was made that the State consider footing the bill for the cost of the hearing on the side of the First Respondent (Mahalie). The late Kandara was the CEO of the little-known young asset management company Avid Investment Corporation which had secured an investment of N$30million from the Social Security Commission (SSC) in late January last year. When Avid was not able to repay the money plus interest, the SSC obtained a High Court order for the winding up or liquidation of Avid. Kandara died of a gunshot wound in front of the Windhoek Police Station on the night of August 25, 2005 as he was being led to the holding cells. The Police said at the time that he shot himself with his own pistol.