Magistrate Taken Off Inquest

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By Surihe Gaomas WINDHOEK Magistrate Maria Mahalie will no longer preside over the inquest into the death of the late Avid Investment Corporation’s Chief Executive Officer Lazarus Kandara. This latest development comes after Judge Kato van Niekerk gave an order in the High Court yesterday that a different magistrate conduct the inquest. Judgement was also made that the First Respondent Mahalie be held liable for the cost implications of refusing the recusal application, with the State responsible for paying the cost of the application brought forward in court. Magistrate Mahalie had to wait two weeks before she could find out whether she could carry on, or had been recused from the bench in the inquest. The hearing was postponed twice since April 28 this year by Judge van Niekerk at the request of Mahalie, who was being asked to recuse herself from presiding over the inquest. The applicants in the case are four police officers who were in charge of the custody of Kandara when he allegedly committed suicide on August 25, 2005. The postponement was granted after 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. She had to look for another lawyer instead. Early this month when the application for recusal was heard in the High Court, the two sides argued their case. At that time, Mahalie’s lawyer Shafimana Uietele argued that the respondent (Magistrate Mahalie) did not deny that she was at the funeral, but 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.” Emphasising the meaning of the word “mourner” in this context, arguments were made that the word is associated with grief, emotion and relationship with Kandara. However, Uietele refuted this implication saying that the “mere attendance by the First Respondent is not a reasonable ground” for her to be considered biased. Advocate Dave Smuts, acting on the instructions of lawyer Sisa Namandje, represented the four police officers subpoenaed to give evidence at the inquest. The four officers who were asking the High Court to take Magistrate Mahalie off the inquest and 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 and Frans Kantema, and Detective Constable Chaolin Tjitemisa. They were all present at yesterday’s hearing. 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 are not substantive enough. “There’s a whole web of deceit and the explanations (given) are convoluted and evasive. Either there is a failure to get an explanation when it is called for or there is no proper explanation,” said Smuts when he spoke during the second session of the case yesterday afternoon. The late Kandara was the CEO of the little-known asset management firm Avid Investment Corporation, which secured an investment of N$30 million from the Social Security Commission late January last year. When Avid failed to repay the money plus the interest, the SSC obtained a High Court order for the winding up or liquidation of the company. Kandara died of a gunshot wound in front of the Windhoek Police Station on the night of August 25, 2005 while being led into the holding cells. The police said at the time that he shot himself with his own pistol.