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kangueehi_the magistrates act of namibia and the independence of magistrates

kangueehi_the magistrates act of namibia and the independence of magistrates

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Published by André Le Roux
Constitutional La and criminal Law

Criminal and Constitutional Law required reading
Constitutional La and criminal Law

Criminal and Constitutional Law required reading

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Published by: André Le Roux on Jun 16, 2009
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The Magistrates Act of Namibia and the independence
of magistrates
Kaijata NG Kangueehi

This paper examines at length the concept of judicial independence with particular reference to the magistracy and the Magistrates Act, 2003 (No. 3 of 2003). It will attempt to examine the legislation and case law in this regard. As a point of departure this paper assumes that the magistracy is indeed independent and should be treated as such.

In the same vein, the paper attempts to highlight some of the threats to the independence of magistrates and proposes solutions to such threats. I am of the view that asserting the independence of magistrates requires reducing the control and powers of the Minister of Justice in the Magistrates Act and granting more powers to the Magistrates\u2019 Commission.

The legislation

The Namibian Constitution guarantees the independence of the judiciary. Article 78(1) thereof provides for judicial power to be vested in the courts, i.e. the Supreme Court, the High Court, and the magistrates\u2019 courts. Article 78(2) provides further that \u2013

[T]he Courts shall be independent and subject only to this Constitution and the law.
Article 78(3) states that \u2013

[n]o member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial of\ufb01 cers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.

The Magistrates\u2019 Courts Act, 1944 (No. 32 of 1944) establishes the courts for magistrates. On the other hand, the Magistrates Act, 2003 (No. 3 of 2003) regulates, inter alia, the functioning of magistrates. Part of the latter Act\u2019s preamble says that it is to \u2013

\u2026 provide for the establishment of a magistracy outside the Public Service.
The Magistrates Act of Namibia and the independence of magistrates
The independence of the judiciary in general

Judicial independence\ufb01 rst came to be determined by the High Court in the case of S v Heita1 where the then Justice O\u2019Linn expressly held that the independence of the judiciary contemplated by the Constitution had the following meaning:

The prohibition in art 78(3) not to interfere with Judges and judicial of\ufb01 cers extends to
each and every person, and is not restricted to members of the Legislature or Executive.
[Emphasis added]
In the head notes to the judgment, O\u2019Linn correctly opines that \u2013

Article 78(2) of the Constitution of Namibia Act 1 of 1990, which provides that the \u201cCourts shall be independent and subject only to this Constitution and the law\u201d, makes it abundantly clear that the independent Court is subject only to the Constitution and the law. This simply means that it is also not subject to the dictates of political parties, even if that party is the majority party. Similarly, the Court is not subject to any other pressure group. [Emphasis added]

This judgment is of pivotal importance in that it serves as a major point of reference
when it comes to the interpretation of the independence of the judiciary.
Independence of the magistracy considered

In a recent High Court judgment,2 the issue was whether the Magistrates\u2019 Commission was an independent body capable of managing and structuring its members and affairs relating to magistrates, such as relocating them, i.e. as magistrates themselves see\ufb01 t. The High Court was, however, of the view of that the magistracy and the Commission were two distinct bodies, and when determining the independence of the former, it should not be confused with the latter. This opinion serves to present the dichotomy between the institutional independence of the Commission on the one hand, and the individual independence of magistrates as judicial of\ufb01 cers on the other.

In Jacob Alexander v The Minister of Justice and Others,3 Justice Parker, without
S v Heita 1992 NR 403 (HC), at 408 F.
Jacob Alexander v The Minister of Justice and Others; unreported case of the High Court

of Namibia, Case No. A210/2007 (Special Case), at 22; also available on the website of the Superior Courts of Namibia at http://www.superiorcourts.org.na/high/docs/judgments/ civil/jacob%20alexander%20versus%20the%20minister%20of%20justice%20and%204% 20others.pdf#search=Jacob Alexander; last accessed 2 November 2008.

The Magistrates Act of Namibia and the independence of magistrates
considering the issue of independence of the magistracy at any length, correctly
made the following remarks:
... it must be remembered that the concept of independence of the judiciary stands on two
inseparable pillars, namely, individual independence and institutional independence.
On the same page the judge de\ufb01 ned the two concepts thus:4
Individual independence means the complete liberty of individual judges and magistrates
to hear and decide the cases that come before them. ...

Institutional independence of the judiciary, on the other hand, re\ufb02 ects a deeper commitment to the separation of powers between and among the legislative, executive and judicial organs of State.

The assertion regarding the individual independence of magistrates undoubtedly refers to the fact that, as individual judicial of\ufb01 cers, they are independent in deciding the cases before them.

On 28 January 2003, the Supreme Court, per Chief Justice Strydom (with Acting Judges O\u2019Linn and Chomba concurring), handed down a judgment in the matter of Walter Mostert v The Minister of Justice.5 In the High Court judgment of

Mostert v Minister of Justice6 which is considered at length here, the\ufb01 rst plaintiff
challenged his transfer by the Permanent Secretary in the Ministry of Justice
from Gobabis to Oshakati, seeking the following relief:
That the decision of the Permanent Secretary for Justice to transfer the applicant to
Oshakati be reviewed and set aside.

To declare that the judiciary, including magistrates, are independent in terms of Article 78 of the Namibian Constitution and that the Permanent Secretary has no jurisdiction to appoint, transfer and/or terminate the services of a magistrate, in particular that Section 23(2) of the Public Service Act does not apply to Magistrates.

In the High Court (per Acting Judge Levy), Mostert had only been partly successful, so he appealed to the Supreme Court. On appeal, the Supreme Court, as far as is relevant, ordered as follows:

It is declared that the transfer of magistrates does not per se constitute a threat to their
2003 NR 11 (SC).
2002 NR 76 (HC), at 78.
Mostert v The Minister of Justice 2003 NR 11 (SC), at 40.

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