WINDHOEK – Deputy Chief Justice and Judge President Petrus Damaseb yesterday decried the notion by some lay litigants that no judge can preside over a matter that involves the Chief Justice. He said this when he dismissed an appeal that Ronald Somaeb lodged against a decision by Deputy Judge President Hosea Angula not to order Chief Justice Peter Shivute and two Justices of Appeal to review a previous ruling by them.
After the High Court granted a summary execution order for the eviction of Somaeb from Erf 4765 in Katutura in 2014, he lodged an appeal in the Supreme Court which was dismissed and struck from the roll.
He then instituted proceedings in the High Court under section 16 of the Supreme Court which grants the Supreme Court powers to review its own decision.
The High Court however found that it lacks the powers to direct the Supreme Court to review its own decision especially since Somaeb did not ask for permission from the Chief Justice to bring the application in accordance with the law.
Judge Angula further dismissed an application by Somaeb that he should have recused himself as he could not sit on a matter that involves his boss, the Chief Justice.
Somaeb then appealed again to the Supreme Court against the decision of Judge Angula.
In this judgement, Judge Damaseb found the appeal falls to be disposed in terms of section 14(7)a of the Supreme Court Act which states that it can be summarily dismissed on the grounds that it’s frivolous, vexatious and has no prospects of success at all.
This is such an instance, the Deputy Chief Justice said and continued that Somaeb’s appeal embraces all these elements and dismissed it with costs. With regard to Somaeb’s application for Judge Angula to recuse himself, Judge Damaseb said that it holds no merits.
“For this court to entertain Mr Somaeb’s appeal it has to find that the existing relationship between the Chief Justice and the Deputy Judge President disqualified the latter from presiding in the matter. Indeed, it implies that no judge holding an appointment under Articles 79 and 80 of the Namibian Constitution (which governs the appointment of judges to the High and Supreme Courts) can ever preside over a matter involving the Chief Justice,” he said in his ruling.
He went on to say that to suggest that no judge in this country can preside over a matter involving the Chief Justice is in itself frivolous, vexatious and without merit.
He said that only judges appointed under Articles 79 and 80 can preside in matters that come before the High Court and Supreme Court and that any judge will in terms of hierarchy be subordinate to the Chief Justice although not subject to his direction in their judicial functions.
However, Judge Damaseb said, the notion that judges in this country duly appointed under Articles 79 and 80 cannot preside in matters involving the Chief Justice has no basis in law and is so unrealistic and fanciful as to be frivolous.
“It is axiomatic that the Chief Justice cannot sit in matters concerning him and therefore judges of a status below him must provide because the Constitution requires that they do so,” the Deputy Chief Justice said.