WINDHOEK – The government and the Namibia Central Intelligence Services (NCIS), filed an appeal to the Supreme Court against a ruling by Windhoek High Court Judge Harald Geier that did not favour them.
Judge Geier dismissed an application the spy agency made to bar the Patriot newspaper from printing an article that chronicled properties they possess and the manner in which they utilize the said properties.
The judge ordered government and the NCIS to pay the costs of the Patriot’s lawyers, Norman Tjombe and Tuafeni Muhongo. According to documents filed with the Supreme Court, the appeal is against the whole judgment including the cost order. They claim that the High Court judge erred in his approach to the adjudication of the requirement of injury actually committed or reasonably comprehended.
Government and NCIS also says the judge found that the injury they complained of was that the intended article prejudiced their security operations and that the apprehension was founded on the set of questions sent to them and the article to follow while it was not the case. According to them, it was that their reasonable apprehension was based on the reasonable apprehension that the intended article poses a national security risk. They say that the reasonable apprehension emanated from the sms that Mathias Haufiku, the editor of the paper, sent to the director of the service, Phillemon Malima, and that apprehension is what prompted them to seek an undertaking from Haufiku that they will not publish the information contained in the sms and not in the set of questions emailed. They claim that the sms by Haufiku did not contain any question, but a statement of intent and that was what made them to believe that the publication of the information will be a contravention of the Act (Protection of Information Act).
They also contends that the High Court erred when it found they did not plead factual material that entitled them to the relief they sought when it said the failure to plead factual matter precisely and fully on the exact nature and scope of the security concerns detracted from the veracity of their case.
According to them they vehemently object to this finding and approach in that they actually did plead the factual matter upon which its case is based.
The NCIS and government also says that the court did not judicially determine the real issue between the parties as it clearly states in its judgment that the real issue between the parties was a judicial interpretation and legal effect and status of the provisions relied upon by the applicants in setting out its case. According to them, this was the subject matter that prompted the litigation and it was the judicial interpretation of those provisions that the court was required to determine which it did not do. It was further indicated that the court erred in that, in terms of Article 12 of the Namibian Constitution, it was obliged to make a determination on the rights and obligations of the parties on the real issues of the litigation, particularly the fact that the litigation centered around the interpretation and effect of existing statutes. They also said the High Court should have found they were, in fact and law, entitled to the relief sought, or in the exercise of its discretion, could have modified the interdictory relief if deemed necessary with a view to uphold the rule of law instead of dismissing the entire application when they came to court to enforce the provisions of a valid and existing law.
Haufiku said they intend to oppose the appeal. He said they believe in the integrity of our court as was shown by the decision not to condone corrupt practices at government institutions.
“The court has shown its independence and we all must respect it and trust in it,” he maintained. The NCIS was represented by Advocate Dennis Khama on instructions of the government attorneys.