Windhoek-The prosecutor-general (PG) has succeeded in obtaining leave to appeal a decision by Windhoek High Court judges Dinah Usiku and Alfred Siboleka to uphold the recusals of two regional court magistrates from partly heard cases and order the cases to start afresh before new magistrates.
The two judges upheld the recusals during a special review instituted by Magistrate Uaatjo Uanivi and Magistrate Johannes Shuuveni, who were appointed acting regional magistrates, but could not be appointed full-time as they did not hold LLB degrees, as required by the Magistrates’ Act.
The two judges bemoaned the fact that they were considered good enough to preside over regional court matters, but not competent enough to be appointed full-time in that position.
Judge Siboleka said with agreement of Judge Usiku in the recusal judgement that the process of assigning non-LLB holders to regional court matters while they are not eligible for permanent positions as regional court magistrates should be “urgently and very seriously revisited.”
“This is where in my view any person in the position of the dissatisfied magistrates would find it difficult to understand. If the Magistrates Commission is satisfied with the work that the assigned non-LLB degree holding magistrates are doing on the bench while presiding over cases in the regional court, why can they not be considered for permanent appointments in that regard? If this is not possible, why assign them to do the work they are not qualified to do?” the two judges asked.
The PG, however, contends that the judges’ decision was erroneous in that they did not apply the legal principles to the facts of the matter. State Advocate Ed Marondedze, who appeared on behalf of the PG, argued that a presiding officer may only recuse him or herself from a case if there is a “reasonable apprehension of bias or where there is a clear conflict of interest”.
He further said a presiding officer may recuse himself without prior notice only where these issues present themselves. “In order to justify a recusal, either at the instance of a litigant or the judge recusing himself or herself without prior application, it must be demonstrated that apprehension is that of a reasonable person based on reasonable grounds,” Marondedze argued.
He went on to say the High Court lost sight of the fact that the recusal of the two magistrates was not based on the accepted legal principles and circumstances under which judicial officers are permitted to recuse themselves.
“Rather their unfortunate decisions smacked of an apparent attempt to hold the Magistrates Commission at ransom. Their actions have all the elements of insubordination. If they felt that the new amendment to the Magistrates Act was discriminatory, they should have mounted a legal challenge against the constitutionality thereof,” Marondedze stated.
He said it appears from the judgment that they had not challenged their appointments as acting regional magistrates and there is no indication they had relinquished the benefits that come with such appointment. What they said to the Commission, according to Marondedze, is that ‘if you cannot appoint us to a substantive post in contravention of the law, we will not perform the duties for which you appointed us, regardless that you are paying us’.
It was misconduct of the worst kind, Marondedze said and added that it was nothing other than unhappiness with the conditions of service.
In the present case it is common cause that the parties (the State, accused persons and their legal representatives) were not given the opportunity to address the magistrates on their intended recusal and that will seriously prejudice the case of both the State and defense, as the cases were partly heard.
Judge Usiku, who heard the application unopposed, granted the State leave to appeal and said she would state her reasons later.