CASE NO.

SA 2/2018

DATE OF HEARING- 06 March 2019

IN THE SUPREME COURT OF NAMIBIA

In the matter between

THE STATE APPLICANT

Versus
WILLIE STEWE 1ST RESPONDENT

ALBERTICO PIETERSEN 2ND RESPONDENT

RUDY RAUTENBACH 3RD RESPONDENT

RAY-LAURENTZ PAULSE 4TH RESPONDENT

ASHWILL STEIN 5TH RESPONDENT

MARK SCOTT FRIEDBURG 6TH RESPONDENT

JEROME VAN WYK 7TH RESPONDENT

FRANSICKUS KAIWINA 8TH RESPONDENT

FIDELIS NEUMBO 9TH RESPONDENT

TOMOTHY ELLEN 10TH RESPONDENT
 2

JANIE ROOI 11TH RESPONDENT

VICTOR IHUHA 12TH RESPONDENT

HERMAN GEINGOB 13TH RESPONDENT

CLAUSE KAURINGE 14TH RESPONDENT

VALERIE STEIZEL 15TH RESPONDENT

FAIZEL OCKHUIZEN 16TH RESPONDENT

LEONARD ABRAHAMS 17TH RESPONDENT

JACKSON MERORO 18TH RESPONDENT

JOHANNES NDUME 19TH RESPONDENT

ELIFAS SAM 20TH RESPONDENT

MATHEUS PETRUS 21ST RESPONDENT

NDALIPALE GEHAS 22ND RESPONDENT

LAZARUS HAIDUWA 23RD RESPONDENT

KAFURO BENEDICTUS 24TH RESPONDENT

MOKHATU ANDREAS 25TH RESPONDENT

 3

MIKAEL JOSEPH 26TH RESPONDENT

NAYENDE FESTUS 27TH RESPONDENT

ERASTUS JOHANNES 28TH RESPONDENT

APPEL LAURENTIUS 29TH RESPONDENT

IN RE: REVIEW JUDGEMENT BY SIBOLEKA J et USIKU J CR 57/2016 DELIVERED

IN RESPECT OF THE FOLLOWING SPECIAL REVIEWS:

1. HC REVIEW 1323/2016 WILLIE STEWE

2. HC REVIEW 1324/2016 ALBERTICO PIETERSEN
3. HC REVIEW 1325/2016 FRANSISCUS KAIWINA & 21 OTHERS
4. HC REVIEW 1326/2016 RUDY RAUTENBACH & 4 OTHERS
______________________________________________________________________
APPELLANT’S HEADS OF ARGUMENT

INTRODUCTION

1. On the 19th September 2016 the Honourable Judges of the High Court

(SIBOLEKA J and USIKU J) handed down a review judgement wherein they

upheld the decisions of the two Regional Court Magistrates to recuse

themselves from presiding over criminal trials in the Regional Court in acting

capacities. The two Magistrates had been appointed by the Magistrates

Commission in terms of section 11(3) of Magistrates’ Act, Act 3 of 2003 as

amended, as Magistrates for the Regional Court of Windhoek to preside over

Regional Court cases for a number of months. During the course of the
 4

appointment period they recused themselves from presiding over cases that

were pending before them. They allegedly felt uncomfortable that on one hand

they were considered competent to preside over Regional Court cases and

therefore assigned to preside, yet on the other hand they were told they could

not be considered for appointment as permanent Regional Court Magistrates

because they didn’t have the required LLB qualifications. The Appellant did not

take any part in the initial Review proceedings. However when the review

judgement was brought to its attention, the Appellant was aggrieved by the

outcome of the Review Proceedings, and applied for leave to appeal to this

Honourable Court. The High Court granted leave to appeal through the

judgement that was handed down on the 09 th November 2017. See pages 567-

571 of the record.

ON THE MERITS

2. The circumstances of this case make it a rare case. This is so because the

Acting Regional Court Magistrates recused themselves from presiding over the

cases mero motu. The grounds on which they recused themselves are not the

already known traditional grounds. This had nothing to do with the litigants

before them. One of the Magistrates stated that his recusal was “not because I

am of the view to fix the accuse or the lawyer or the State but those who are in

positions of taking decisions must be cautious of the repercussions of their

decisions and I have decided to recuse myself from all Regional Court matters,
 5

including my two other colleagues we have taken such a decision. That anyone

who wants to compel us to proceed with the matter can only approach the High

Court to do so. I have already made it known to the Chief Magistrate. I have

made it known to the Commission this morning that I stand by my decision. The

case then has to start de novo.” See page 472 of the record. It is in the light of

the afore-going that the Divisional Magistrate referred the matters to the High

Court for a special review in terms of section 304 (4) of the Criminal Procedure

Act, Act 51 of 1977. See pages 449-459 of the record being the referral

letters.

3. The Honourable Judges of the High Court were supposed to determine whether

the Acting regional Court Magistrates were correct at law to recuse themselves.

In the present case the Honourable Court a quo after quoting the reasons

proffered by the Acting Regional Court Magistrates for their decisions to recuse

themselves, the Court properly cited the law applicable in this jurisdiction, in

paragraph 5 of the cyclostyled judgement as follows;

“In the normal flow of a trial a litigant through her counsel appearing before the

Court would file an application for the recusal of the presiding officer. They

would detail the reasons for the request in order for him to look at and decide

accordingly.
 6

In S v Malindi and Others1 Corbett J, expressed as follows on the issue of

recusal:

“The common law basis of the duty of a judicial officer in certain

circumstances to recuse himself was fully examined in the cases of S v

Radebe2 and South African Motor Acceptance Corporation (Edms) v

Oberholzer3. Broadly speaking the duty of recusal arises where it appears that

the judicial officer has an interest in the case or where there is some other

reasonable ground for believing that there is a likelihood of bias on the part of

the judicial officer. That is, that he will not adjudicate impartially. The matter

must be regarded from the point of view of the reasonable litigant and the test

is an objective one. The fact that in reality the judicial officer was impartial or is

likely to be impartial is not the test. It is the reasonable perception of the

parties as to the impartiality that is important. Normally recusal would follow

upon an application … therefore by either or both of the parties, but on

occasion a judicial officer may recuse himself mero motu, i.e. without prior

application”. My own underlining.”

See page 444 of the record.

4. It is the Appellant’s humble submission and with greatest respect, that the

underlined words shows the critical stage at which the Honourable Court a quo

fell into error when applying the legal principles to the facts of the present case.

It appears that the Honourable Court a quo understood those words to mean

that the presiding officer can recuse himself/herself mero motu for any reason

1
S v Malindi and Others 1990 (1) SA 962 AD at 969 G-970 Corbett J.
2
S v Radebe 1973(1) SA 796 (A).
3
SA Motor Acceptance Corporation (Edms) v Oberholzer 1974(4).
 7

other than those provided for by the accepted legal test for recusal. Following

the Supreme Court judgement in the matter of S v S H (SA 29 - 2016)[2017]

NASC ( delivered on the 19th July 2017) it is now trite that there are two

circumstances in which a judge must recuse himself or herself. These were

outlined in paragraph 18 of the cyclostyled judgement as follows;

“The first is where the judge is actually biased or has a clear conflict of

interest and the second is where a reasonable person, in possession of

the facts, would harbour a reasonable apprehension that the judge is

biased.4 The protection of the constitutional principle of judicial impartiality

imposes on the judge the duty to recuse if a reasonable person would

have a reasonable apprehension that the judge is biased.

[19] The test of reasonable apprehension of bias was authoritatively stated in

S v Munuma & others 2013 (4) NR 1156 (SC). Strydom AJA at 1160H-I

clarified that the correct test is the ‘reasonable suspicion test’: the test for

the recusal of a judge is ‘whether a reasonable, objective and informed

person would on the correct facts reasonably apprehend that the judge

has not or will not bring an impartial mind to bear on the adjudication of

the case’. (See also Christian v Metropolitan Life Namibia Retirement

Annuity Fund & others 2008 (2) NR 753 (SC) at 769 and Lameck v The

State (SA 15/2015) [2017] NASC (19 June 2017), paras 50 - 54).

4
O’Regan K & Cameron E .2011. Judges, Bias and Recusal in South Africa. In Lee (ed) Judiciaries in
Comparative Perspective. Cambridge: Cambridge University Law Press, p 346-360.
 8

[20] The reasonableness of the apprehension must be assessed in the light of

the oath of office taken by judges to administer justice without fear or

favour; and their ability to carry out that oath by reason of their training

and experience. An impartial judge is a fundamental pre-requisite to a fair

trial and a judicial officer should recuse herself or himself if there are

reasonable grounds on the part of a litigant for apprehending that the

judicial officer was not or will not be impartial. The position is the same in

South Africa: President of the Republic of South Africa v South African

Rugby Football Union 1999 (4) SA 147 (CC) para 48 and South African

Commercial Catering and Allied Workers Union & others v Irvin and

Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) at

714A.

[21] In order to justify a recusal, either at the instance of a litigant or the judge

recusing herself or himself mero motu, it must be demonstrated that the

apprehension is that of a reasonable person based on reasonable

grounds.

[22] The presumption of a judge’s impartiality is not easily dislodged and

requires cogent or convincing evidence or reason to rebut the

presumption of judicial impartiality. A judge has a duty to hear a case

unless the test for recusal is met.”

 9

See also Lameck v S (SA 15 - 2015) [2017] NASC (19 June 2017)

5. It is humbly and with greatest respect, submitted that in the present case when

the Honourable Court a quo opined as it did in paragraph 7 of its judgement

(page 446 of the record) it went way out of the applicable legal principles.

The Honourable Court a quo stated as follows;

“[7] It is my considered view that the use of section 11(3) to assign

Magistrates who are none LLB qualification holders to preside over

Regional Court cases yet they cannot be considered for permanent

Regional Court Magistrate appointments 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 none 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 assigning them to do the work they are not

qualified to do.

[8] There is merit in the concerns raised by the dissatisfied Magistrates.

It is my considered view that should the Magistrates Commission still

be interested to assign those Magistrates in the contested positions,

 10

a consideration to hear them will be embarked on so that an

amicable lasting solution can be found.”

6. It is humbly submitted and with greatest respect, that the Honourable Court a

quo by reasoning as it did above, lost sight of the fact that the decisions of the

two dissatisfied Magistrates was certainly 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 or the unfairness thereof. As it

appears from the judgement, they did not challenged their appointments as

Acting Regional Magistrates. There is no indication that they ever relinquished

the benefits which came with such appointments. What they said to the

Magistrates Commission, through their recusal, is that if you cannot appoint us

to substantive posts in contravention of the law, we will not perform the duties

for which you appointed us regardless that you are paying us for that. That is

misconduct at its worst. If not then it’s nothing other than unhappiness with

conditions of service.

7. A magistrate may only recuse himself or herself mero motu in certain

circumstances. See the case of STATE v ARIBEB (CR 60/2013) [2013]

 11

NAHCMD 273 (unreported judgement delivered on 04 October 2013) where it

was stated as follows;

“In S v Malindi and Others 1990 (1) SA 962 (A) Corbett CJ in dealing

with the discharge of an assessor in terms of s 147 of Act 51 of 1977

considered the common law principles regarding recusal and remarked

as follows on 969G-970I:

‘The common law basis of the duty of a judicial officer in certain

circumstances to recuse himself was fully examined in the cases of

S v Radebe 1973 (1) SA 796 (A) and South African Motor

Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808

(T). Broadly speaking, the duty of recusal arises where it appears

that the judicial officer has an interest in the case or where there is

some other reasonable ground for believing that there is a likelihood

of bias on the part of the judicial officer: that is, that he will not

adjudicate impartially. The matter must be regarded from the point of

view of the reasonable litigant and the test is an objective one. The

fact that in reality the judicial officer was impartial or is likely to be

impartial is not the test. It is the reasonable perception of the parties

as to his impartiality that is important.

 12

Normally recusal would follow upon an application (exceptio

recusationis) therefore by either or both of the parties, but on

occasion a judicial officer may recuse himself mero motu, i.e. without

any such prior application [...]

It would thus seem that at common law the recusal of an assessor is a

proceeding in open court and that it is an issue upon which the parties

would be afforded an opportunity to be heard. Obviously, this would be

so where one of the parties moved for the assessor’s recusal; and, in

my opinion, it should also be so where the assessor or the court acts

mero motu. A recusal would normally result in the proceedings being

quashed and a new trial being directed”.

8. In the present case it is common cause that the parties (i.e. the State and the

accused or their legal representatives) were not given the opportunity to

address the presiding magistrates on the issue of their intended recusal. See

pages 200 and 463 of the record. The magistrates should have afforded

them the opportunity to address them on this issue. Further it is also common

cause that the Honourable Judges of Review did not afford the State and the

accused or their legal representatives an opportunity to address them on the

same issue. Had they done so, they would have realised that this was a purely

labour dispute which did not constitute the accepted legal basis for a

magistrate to recuse himself/herself. The Magistrates never alleged that they

 13

themselves feel that they are incompetent to handle the matters. In the

contrary they seem to confirm that they are competent and that their

competence has been acknowledged by past Commissions. What they cannot

understand is why the present Commission cannot appreciate that they are

competent enough to be appointed substantively although they don’t have the

prescribed qualifications because in any event they have been doing the job

perfectly well. They have not alleged that they have any personal interests in

the matters that will affect their impartiality. None of the parties have

expressed an apprehension of bias on the part of the Magistrates. The

magistrates themselves never alluded that their dispute with their employers

would result in a reasonable perception by the parties as to their impartially

when presiding over the matters. In fact they were prepared to continue with

the matters only on condition that the High Court had ruled that they should

continue. Unfortunately for the litigants the High Court ruled in favour of the

Magistrates.

9. In the matter of STATE v JOHANNES NDASHAALA TUUTALENI and THREE

OTHERS, CASE NO. CR 19/2014 the court, (per LIEBENBERG J, with HOFF J

concurring), set aside a decision of magistrate to mero motu recuse himself

from hearing a bail application on the basis that he was suffering from mental

depression and that the prosecutors had ill feelings towards him. The court

found and correctly so, that the reasons advanced were not based on legal
 14

principles and were grounded on issues unrelated to the matter then at hand.

Crucially, the court referred to the locus classicus judgment of THE

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN RUGBY

UNION AND OTHERS 1999 (4) SA 147 (CC) where the Constitutional Court of

South Africa, whilst acknowledging the reasonableness of an apprehension on

the part of litigant of the judge’s bias, nonetheless emphasized that the courts

have a duty to sit and that ‘ . . . It must be assumed that they can disabuse

their minds of any irrelevant personal beliefs and predispositions. They must

take into account the fact that they have a duty to sit in any case in which they

are not obliged to recuse themselves.’

10. The facts of the present matter, viewed in their entirety, show that there is no

sound reason in law why the learned magistrates found themselves unfit to

continue sitting in the matters, assuming that the Magistrates Commission has

always been satisfied with the work that the assigned non-LLB degree holding

Magistrates were doing on the bench while presiding over cases in the

Regional Courts in the first place. Whilst the decision to recuse oneself,

especially mero motu is one of judicial conscience, and must ordinarily be

respected, it should, however, have a reasonable basis in law and judicial

officers should not be allowed to shirk their duty to sit in matters by unilaterally

recusing themselves when there is, objectively speaking no sound basis in law

for doing so. And importantly, the decision to recuse oneself mero motu, must

not only be viewed from the subjective position of the judicial officer
 15

concerned. There is an important objective assessment that must be carried

out and the test in this regard appears to some extent to be a tapestry of both

objective and subjective elements.

11. See the case of S v BOOIS (CR 37-2015) [2015] NAHCMD 275 (unreported

judgement delivered on 13th November 2015) where it was stated as follows;

“In this regard, the court, in the SARFU judgment said the following at

page 177 D:

‘At the same time, it must never be forgotten that than an impartial

Judge is a fundamental prerequisite for a fair trial and a judicial

officer should not hesitate to recuse herself or himself if there are

reasonable grounds on the part of a litigant for apprehending that

the judicial officer, for whatever reasons, was not or will not be

impartial.’ It would appear to me that the same applies in cases

where judicial officers decide suo motu to recuse themselves.

There must be an objectively reasonable basis in law for doing so,

quite apart from the judicial officer’s subjective and sometimes

parochial views and feelings.

 16

If it were otherwise, judicial officers would recuse themselves from

hearing matters in respect of which they have some personal

aversion, fear or foreboding, under the ruse of subjective reasons

which may not be subjected to objective standards of scrutiny and

this may yield the administration of justice and the esteem and

dignity of the courts a shattering blow in the minds of the public. In

that way, judicial officers may circumvent their duty to sit even in

appropriate cases by employing the simple stratagem of recusing

themselves suo motu for personal reasons when no objective or

reasonable basis for so doing exists in law, logic or even common

sense. Willy-nilly recusal on mero motu bases is therefore a

practice that we should, as judicial officers, steer clear from like a

plague, understanding as we should, that in light of our judicial

oaths of office, we have a duty to sit, unless a proper case for

recusal is evident or justly apprehended.”

12. The question that must be asked, is whether the decision to sit, in the face of

reasonable grounds for recusal, would serve to abort the interests of the

administration of justice or the independence, impartiality or fairness of the

proceedings in the mind of a reasonable observer. The reasons so advanced

by the Magistrates have nothing to do with the merits of the matters nor the

parties thereto. In the instant case, it is humbly submitted that the decision by
 17

the magistrates to mero motu recuse themselves was incorrect in the

circumstances should not be allowed to stand.

13. In addition to the above stated legal position it should also be noted that all the

cases involved are partly heard matters. It’s clear from the supporting

affidavits of Simba Nduna and Menencia Chetline Hinda (pages 553 to 558 of

the record) that some of the accused were legally represented. It doesn’t

matter whether it was private briefs or on the instructions of Legal Aid because

in both scenarios there are legal costs involved. If it were private briefs, then

the accused persons are likely not to be in a position to pay the same lawyers

twice for the same services on the same matters. If it were on the instructions

of Legal Aid, we all know the cash flow crunch which the government is

experiencing. Either way there would be prejudice to the accused persons and

the State. Furthermore it is not clear from the affidavits afore-mentioned that

some of the trials were at an advanced stage when the trials were aborted.

Whatever way one looks at the scenario, the State stand to be prejudiced

because of witnesses’ expenses and the accused’ also stand to be irreparably

prejudiced as indicated above. Furthermore the matters have to be re-enrolled

and thereby inflating the backlog which is already a problem at our courts. And

all this because some magistrates want to use inappropriately the legal

principle of recusal as a weapon to challenge the promotional system!

 18

14. In the light of all the foregoing it is humbly submitted that the Honourable

Court a quo misdirected itself when it upheld the decions of the Acting Regional

Court Magistrates to recuse themselves from the cases which were before

them. All the above factors and cases referred to above shows that the recusals

have no legal basis and the behaviour of the Acting Regional Court Magistrates

involved is extraordinarily and disturbingly improper and this warrants

interference by this Honourable Court of appeal. This case demands a

consistent and resolute response from this Honourable Court which, the

Respondent humbly submits, would eventually stem the tide of behaviours of

this nature from the lower courts.

WHEREFORE the Appellant humbly submits that it has made out a case for the

interference by this Honourable Court of the judgement of the High Court and

prays that this Honourable Court Should on the basis of the foregoing reasons set

aside the judgement of the court a quo appealed against.

DATED AT WINDHOEK ON THIS 04th DAY OF FEBRUARY 2019

______________________________________

E. E. MARONDEDZE

COUNSEL FOR THE APPLICANT

 19

INSTRUCTED BY PROSECUTOR-GENERAL OF NAMIBIA

C/O HIGH COURT OF NAMIBIA

LUDERITZ STREET

WINDHOEK

TO : THE REGISTRAR
SUPREME COURT OF NAMIBIA
WINDHOEK

AND TO: MAGISTRATES COMMISSION

OFFICE OF THE JUDICIARY
GUNTENBURG PLATZ
WINDHOEK

AND TO: WILLIE STEWE

1ST RESPONDENT

ALBERTICO PIETERSEN
2ND RESPONDENT

RUDY RAUTENBACH
3RD RESPONDENT

RAY-LAURENTZ PAULSE
4TH RESPONDENT

ASHWILL STEIN
5TH RESPONDENT

MARK SCOTT FRIEDBURG

6TH RESPONDENT

JEROME VAN WYK

 20

7TH RESPONDENT

FRANSICKUS KAIWINA
8TH RESPONDENT

FIDELIS NEUMBO
9TH RESPONDENT

TOMOTHY ELLEN
10TH RESPONDENT

JANIE ROOI
11TH RESPONDENT

VICTOR IHUHA
12TH RESPONDENT

HERMAN GEINGOB
13TH RESPONDENT

CLAUSE KAURINGE
14TH RESPONDENT

VALERIE STEIZEL
15TH RESPONDENT

FAIZEL OCKHUIZEN
16TH RESPONDENT

LEONARD ABRAHAMS
17TH RESPONDENT

JACKSON MERORO
18TH RESPONDENT

JOHANNES NDUME
19TH RESPONDENT
 21

ELIFAS SAM
20TH RESPONDENT

MATHEUS PETRUS
21ST RESPONDENT
NDALIPALE GEHAS
22ND RESPONDENT

LAZARUS HAIDUWA
23RD RESPONDENT

KAFURO BENEDICTUS
24TH RESPONDENT

MOKHATU ANDREAS
25TH RESPONDENT

MIKAEL JOSEPH
26TH RESPONDENT

NAYENDE FESTUS
27TH RESPONDENT

ERASTUS JOHANNES
28TH RESPONDENT

APPEL LAURENTIUS
29TH RESPONDENT
 22

LIST OF AUTHORITIES

1. S v S H (SA 29 - 2016)[2017] NASC ( delivered on the 19th July 2017)

2. Lameck v S (SA 15 - 2015) [2017] NASC (19 June 2017)

3. STATE v ARIBEB (CR 60/2013) [2013] NAHCMD 273 (unreported judgement

delivered on 04 October 2013)

4. STATE v JOHANNES NDASHAALA TUUTALENI and THREE OTHERS, CASE NO.

CR 19/2014

5. THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN

RUGBY UNION AND OTHERS 1999 (4) SA 147 (CC)

6. S v BOOIS (CR 37-2015) [2015] NAHCMD 275 (unreported judgement delivered on

13th November 2015)

STATUTES
 23

7. Magistrates’ Act, Act 3 of 2003