Windhoek-Acting High Court Judge Johanna Salionga has refused to recuse herself from the trial in which a Windhoek woman is accused of hiring five men to kill her husband for money, for alleged favoritism towards three magistrates that implicated three of the accused. The defense has now indicated that they would petition the Chief Justice to appeal the ruling. The matter has now been moved to July 27 and all the accused remain in custody.
The defense lawyers in the trial, Milton Engelbrecht, Trevor Brockerhoff, Tuna Nhinda, Mbanga Siyomunji, Meriam Kaneruzo and Natji Tjirera have accused the judge of protecting the magistrates who took down the confessions in dispute.
The judge admitted confessions made by three of the accused into evidence following a trial within a trial, in which glaring omissions and material mistakes were uncovered, the lawyers claim. The confessions were made by Anastancia Lubinda – who allegedly hired five men to kill her husband, Peter Riscoh Muleke, 36 and two of her co-accused, David Kondjara and Donald Hindjou.
Lubinda made a confession to Magistrate Rina Horn in which she admitted that she hired Matali, Kondjara, 32, Abed Uazeua, Hindjou and Oviritje artist Dollam Tjitjahuma, 27, to kill Muleke. Kondjara and Hindjou made confessions before Magistrate’s Suritha Savage and Vanessa Stanley respectively.
Engelbrecht – for Lubinda – argued that Acting Judge Salionga, as the current Chief Magistrate, felt obliged to sweep the mistakes of especially Magistrates Horn and Savage under the carpet to protect her subordinates. He said if she was fair, she would have rejected the validity of the Lubinda and Kondjara’s confessions, where material mistakes were made and allowed the confession of Hindjou which did not contain material inconsistencies.
All of the rest of the lawyers indicated to Judge Salionga that they support Engelbrecht’s application with Trevor Brockerhoff acting on behalf of David Matali, 45; straight-up telling the judge her ruling on the admissibility of the confessions was extremely biased and conflicting.
According to the defense, the judge’s bias is evident as she ignored and disregarded crucial evidence and that her impartiality is in question as she was supposed to weigh up all the evidence to arrive at an impartial ruling.
But, Judge Salionga said, the applicants failed to show, on a balance of probabilities, that she will not bring an impartial mind to the adjudication of the case. If, she said, they are not satisfied with her findings, they have the option to appeal it. While she conceded that there may be errors in the ruling, she does not agree that they can be used as grounds creating reasonable apprehension of bias, but rather an explicable human error, the judge said. With regards to her previous position as Chief Magistrate and the contention by the defense that she was shielding them, the judge said the case before her is between the state and the accused persons. The magistrates were called as state witnesses and cross-examined and she has to go by what was placed before her, Judge Salionga stated. “The mere fact that I worked with the magistrates does not necessarily constitute a conflict of interest on my part,” she added.
In the end the judge said that she find no reason to recuse herself from the trial as she believe she will bring an impartial mind to the proceedings.
State is represented by Advocate Marthino Olivier.