Part III The Relationship Between the Judiciary and the Political Branches, 13 An Overview of the Diverse Approaches to Judicial and Executive Relations: A Namibian Study of Four Cases
Nico Horn
From: Separation of Powers in African Constitutionalism
Edited By: Charles M. Fombad
(p. 300) 13 An Overview of the Diverse Approaches to Judicial and Executive Relations
A Namibian Study of Four Cases
1. Introduction
Few, if any form of governments are free of tension between the different organs of the state, more specifically between the judiciary and the executive. An independent judiciary is more often than not a thorn in the flesh of the executive. This chapter will look at four cases in Namibia, with a short introduction on the pre-independence era.
The fact that South Africa was still the sovereign power in Namibia before independence did not make the relationship between the courts and the colonial executive easy. Neither did South Africa’s attempt to find an internal settlement without the two main liberation movements, the South West Africa National Union (SWANU) and the South West Africa Peoples’ Organisation (SWAPO),1 create a relationship of trust between the executive and the majority of the Namibian population. Between 1984 and independence in 1990, the South African Administrator-General and the South African government-created transitional government of national unity (TGNU), were constantly at loggerheads with the Supreme Court of South West Africa/Namibia.
The prosecution authority was not left out of the conflict either. Before 1977 the South West Africa Attorney-General—who was the head of prosecutions—was independent. However, when the border war between South Africa and the main liberation movement, SWAPO, intensified, the South African Criminal Procedure Act 51 of 1977 (CPA), was enacted in Namibia. The South African Act made the Minister of Justice the final authority in prosecutions; so much so that the minister had the authority to take control of prosecutions should he wish to do so. And if the South African Attorney-General in control of prosecutions did not toe the line of the South African government, the state president of South Africa used his powers under military legislation to prevent prosecutions that might harm the South African Defence Force or police.
The colonial attitude had a negative effect on the first Namibian government. The fact that the Prosecutor-General should be independent and have the final authority in References(p. 301) prosecutions was not popular—especially since the first Prosecutor-General was an unpopular deputy-Attorney-General of the colonial era. The establishment of the TGNU, appointed from the ranks of the so-called Turnhalle or internal parties, that is, parties who were willing to negotiate with the South African government, did not create the unified anti-SWAPO Namibian government South Africa hoped for. The Cabinet came from the Turnhalle parties. As we shall see in Section 2, the internal parties often clashed with the judiciary. This left Namibia with a history of executive interventions if judicial independence threatened the executive in any way whatsoever.
This chapter will look at conflicts between the judiciary and government that threatened the independence of the judiciary in four different situations:
• A case where the government ignored judgments against them;
• the issue of the independence of the prosecutorial authority;
• the independence of the lower courts; and
• the indirect influence of the executive on judgments of the court.
The chapter begins with a short overview of the last decade before independence. This will shed some light on the historical tension between the executive and the judiciary that the first democratically elected government inherited.
2. The Time Between the Times: The Executive and the Judiciary During the Transitional Government for National Unity
Between 1978 and 1985, several South African attempts failed to establish an internationally acceptable internal settlement without including the liberation movements, including SWAPO and SWANU. In 1985, the state president of South Africa, acting in terms of section 38 of the South West Africa Constitution Act,2 issued South West Africa Legislative and Executive Authority Establishment Proclamation R101 to establish a so-called transitional government of national unity (TGNU).3 The Proclamation made provision for a Legislative Assembly and a Cabinet.
Proclamation R101 included a Bill of Fundamental Rights and Objectives in an annexure, as well as an article providing for the review of laws that contradicted the Bill of Rights.4 As we shall see, the Supreme Court of South West Africa/Namibia approached the Bill of Rights in a liberal, purposive manner. Despite the political pressure of the armed struggle and a transitional government which still operated in the spirit of its colonial masters, the Court protected the rights of citizens in the spirit of a constitutional democracy in the making. However, neither the interim government nor the References(p. 302) highest court in South Africa gave any indication to the international community or to SWAPO that they were serious about the implementation of a Bill of Rights.
Although the judges of the Supreme Court of South West Africa/Namibia never saw themselves as a constitutional court, they nevertheless took the Bill of Fundamental Rights seriously and prepared the way for a constitutional democracy in more than one way. Zaaruka describes the importance of Proclamation 101 thus:
The period from 1985, witnessed a change in the Supreme Court of South West Africa/Namibia as they started questioning some of apartheid laws application in Namibia with the adoption of Proclamation R101 of 1985. This marked a major departure from the earlier period as the country prepared for transition to independence.5
The South African Appellate Division, which remained the final legal authority in Namibia, did not deviate from its stance on parliamentary sovereignty. It ignored the challenge of the Namibian Court to evaluate the values and aims of the Bill of Rights and followed the traditional, rigid approach by looking primarily at the intention of the legislator and the legal interpretation surrounding the issues. The Katofa6 and Shifidi7 cases which are discussed below will set the scene for what was to happen after independence insofar as the relationship between the judiciary and the executive is concerned.
2.1 Katofa: the first challenge for the interim government
The transitional government was confronted with human rights issues shortly after its establishment. The first case did not initially deal with the Bill of Rights of Proclamation R101, but with another notorious Administrator-General Proclamation: AG 26 of 1978. The latter Proclamation severely restricted the rights of people detained without trial or access to a court of law. The Katofa8 case was heard shortly before the enactment of Proclamation R101. The legality of Proclamation AG 26 of 1978 in the light of the Bill of Rights was later argued before the Supreme Court of Appeal. Katofa9 was the brother of Josef Katofa, a detainee under Proclamation AG 26 of 1978. The applicant brought a typical habeas corpus writ,10 requesting the Administrator-General to produce the person of Josef Katofa to the court and to furnish information to the court as to whether the latter was under arrest, on what charges he had been arrested, why he was being detained, and granting him access to a legal practitioner.
References(p. 303) While there is nothing in the Proclamation preventing a detainee access to a lawyer, Josef Katofa’s attorney was not allowed to see him. Since the detainee did not see a magistrate or a medical practitioner as prescribed by the Proclamation, his attorney wrote a letter to the Administrator-General, stating that the detention was illegal and demanding his client’s release. In his answering affidavit, the Administrator-General insisted that since the Proclamation gave him the authority to lay down conditions of detention, he had the discretion to allow or disallow visits by a lawyer. He was also obliged to give reasons for the detention to the detainee, but not to anyone else. The Administrator-General stated that the detainee had not asked for these reasons, and neither had he requested that he be visited by an attorney. This fundamentalist reliance on textual nuances was typical of the South African authorities. Even the long detention of Joseph Katofa was concealed by detaining him under different proclamations. He was initially detained in terms of section 4(2) of Proclamation AG 9 of 1977, and on 30 May 1984 in terms of section 5 bis of Proclamation AG 9 of 1977.
Although Katofa was not released, his terms and conditions of arrest as well as the ground for arrest were changed again. On 14 November 1984, Katofa was, according to the papers before Court, arrested and detained in terms of section 2 of Proclamation AG 26 of 1978. The Administrator-General stated that he was convinced the detainee was a person as provided for in the stated section, without referring to any specifics that confirmed this conviction.11
The Supreme Court of South West Africa/Namibia would have nothing of this. While not referring specifically to the annexed Bill of Rights of Proclamation R101, since the Proclamation only came into operation a month later, it concentrated on the rights of the individual. The Court used specific constitutional language. It referred to liberty and the right to see an attorney as fundamental rights, with Judge Berker referring to the problem as ‘one of the most basic constitutional importance’.12 The Court made it clear that the habeas corpus writ or the Roman Dutch remedy of de homine libero et exhibendo13 intends to protect the liberty of subjects. Citing Principal Immigration Officer and Minister of Interior v Narayansamy, the Court stated that every individual ‘is entitled to ask the Court for his release, and the Court is bound to grant it, unless there is some legal cause for his detention’.14 Consequently, the application was granted. The Administrator-General was ordered to grant Katofa access to his attorney, and a rule nisi (interim order) was granted.
On 17 June 1985, a mere seven days after the judgment, the Administrator-General Proclamation R101 of 1985 came into effect. The functions of the Administrator-General were transferred to the transitional government, more specifically, the Cabinet of the Executive Authority. The Cabinet was not satisfied with the result and appealed. The appeal was a huge blow for the recognition of the new quasi-constitutional development in Namibia. While the Appellate Division rejected the appeal on the References(p. 304) grounds that Mr Bezuidenhout, the chairperson of the transitional Cabinet, did not relieve the burden of proving that the detainee was in legal detention, it also addressed the review powers of the courts in terms of Proclamation R101.15
In the Supreme Court of Appeal Katofa argued that since section 2 of Proclamation AG 26 of 1978, which allowed for detention without trial, was in conflict with the Bill of Fundamental Rights and Objectives of Proclamation R101 of 1985, it was invalid since section 34 of the Proclamation did not clearly repeal legislation contradicting the Bill of Rights. Consequently, the Court of Appeal ruled that existing legislation, including earlier Proclamations by the Administrator-General, would remain in place after the enactment of Proclamation R101, even if it contradicted the Bill of Rights. The only condition for legality of older legislation was that it had to be ‘constitutionally enacted by a competent authority’.16
It falls outside the scope of this discussion to go into the interpretation of section 34 of Proclamation R101. It will suffice to point out that several other cases of the Supreme Court have followed the Katofa case in applying the Bill of Rights in this manner. However, the Supreme Court of Appeal in Bloemfontein, South Africa has, as it did in the Katofa case, overturned all the Namibian cases that came to it on appeal where these contained any criticism of the South African administration.17
2.2 Shifidi: oppressive South African legislation and the president
The South African government often used laws to manipulate prosecutions in the territory. A case in point is the well-known brutal murder of SWAPO activist and former Robben Island detainee, Immanuel Shifidi.18 Shifidi was killed at a political rally in Windhoek on 30 November 1986. The Attorney-General for South West Africa instituted criminal proceedings against five members of the South African Defence Force. However, the case was stopped when a certificate was issued under section 103(4) of the Defence Act 44 of 1957 by the Administrator-General and authorized by State President PW Botha. The section in question gave the state president the right to issue a certificate and stop any prosecution against Defence Force members for acts committed in the operational area.
In the Shifidi case, no operational action of the Defence Force was involved and the killing took place on a football field in Windhoek. The court held that the Minister of Defence or state president, or anyone else, could not exercise their discretion to decide where an operational area was located for the purpose of section 103(4). In this case, it could not be objectively said that a football field in Windhoek was an operational area. To overcome the shortcomings of the certificate, the Administrator-General issued a References(p. 305) proclamation declaring Windhoek an operational area. In the Shifidi case the daughter of the deceased then applied for a court order declaring the Administrator-General’s certificate invalid.19 A full bench of the Supreme Court considered the case and concluded that the documentation presented to the Court did not justify the issuing of the certificate. The Court found the president did not apply his mind in considering the facts when he found that the act the accused had committed was a bona fide attempt to combat terrorism. It not only withdrew the certificate, but also set aside the decision of the Attorney-General not to proceed with the prosecution. This was a brave decision in a period of state repression and the brutal enforcement of security legislation. Bryan O’Linn, a lifelong opponent of apartheid and, at the time of the transitional government, an activist advocate critical of the Supreme Court Bench, made the following observation:20
The South West African Supreme Court in this decision upheld the high traditions of the Courts. The South African State President and Minister of Defence[,] on the other hand, by this act betrayed the values of a Christian and civilised people by covering up a heinous crime … In doing that they became party to murder and public violence by association and collusion.
The members of the Defence Force were never prosecuted. Soon after the case had been heard by the Supreme Court, the process of Namibia’s independence started. Their deeds were eventually covered by the blanket amnesty that initially applied only to returnees of the liberation movements, but was later extended to members of the security forces.21 Even more brutal and aggressive conduct on the part of the South African government followed.22 As far as the Supreme Court of South West Africa was concerned, a new dispensation had begun with the implementation of Proclamation R101. It is understandable that the review powers of the Court created tremendous problems for South Africa. If all the security laws made applicable in South West Africa/Namibia could theoretically come under scrutiny by the Supreme Court of South West Africa/Namibia, the chances were good that the Court would have declared them unconstitutional. The Court had a constant battle with both the transitional government and the South African Appellate Division. In doing so, the judiciary prepared the way for a new dispensation in Namibia, where the courts would play a much more significant role in enforcing constitutional rights against oppressive legislation. The interim government, however, opted to take refuge at the South African Appellate Division.
The judgments of the Appellate Division are typical of the fundamentalist approach of courts in South Africa before 1994. This is a good example of what Dyzenhaus calls ‘the unwillingness of judges to allow any moral sensibilities to have an impact on interpretation’.23 The Supreme Court of South West Africa/Namibia took the Bill of Rights seriously and applied it, even if it reflected negatively on the transitional References(p. 306) government or the Cabinet. The executive of the transitional government, however, received their power from the South African government. They were not elected by the people, and were rejected by the majority of the Namibian people. Like their South African allies, they considered the liberation movements as enemies. Almost all the human rights cases of the period had some relation to security issues. Since the Turnhalle movement and later the transitional government, supported the South African military action against SWAPO, they seldom went against the actions of the security forces and the Administrator-General, even if such actions were in contravention of the Bill of Rights.
At independence, the democratically elected first government inherited a judiciary tested under the last days of South African occupation and its attempts to impose the rule of law under an anti-democratic government in Namibia. The brave actions of this court in some respects laid the foundation for an independent judiciary after independence.
3. Namibia After Independence: Separation of Powers in the Namibian Constitution and an Independent Judiciary
The Constituent Assembly, who drafted the Namibian constitution, ensured that an independent judiciary was firmly entrenched in several provisions of the new constitution. In particular, article 78(2) made it clear that courts are independent and only subject to the constitution and the law, and the High and the Supreme Courts are competent to interpret the constitution and more specifically the Bill of Rights. While the constitution prohibits direct influence of government on the judiciary and gives the courts a mandate to act independently of political interference and manipulation, it does not prevent tension when the government as an elected body feels threatened by the interpretations and judgments of the courts.
Generally, the government, and more specifically the ruling SWAPO party, was not very comfortable with the white judges that were inherited from the pre-independent Supreme Court of South West Africa/Namibia.24 Even the white judges of the new dispensation did not escape the suspicion of the ruling party.
Shortly after independence a few unorganized, white, right-wingers were arrested while planning a coup d’état. They were poorly organized with no sustainable structures, no support in society, and hardly any weapons. While on bail the ringleaders fled the country and only a few minor accomplices eventually stood trial.25 Although the accused were convicted, the sentences were lenient. The Prosecutor-General explained the lenient sentences in light of the fact that the ringleaders had escaped and were not prosecuted.26 However, SWAPO and other loyalists were shocked by the moderate sentence given to white conspirators against the government. It did not matter that Judge O’Linn was appointed in the transitional period with the approval of SWAPO; that he had a history of defending SWAPO fighters and sympathizers, that SWAPO References(p. 307) considered him as an ally when the leadership returned from exile,27 and that he was entrusted with the commission that monitored violence during the transitional elections. Although he was a liberal opponent of the apartheid regime, he was never a member of SWAPO.28 The following fact added the necessary spice to make ethnic deconstruction work: he was a police officer in South Africa before entering the legal profession.
The ruling party’s criticisms of O’Linn’s judgment were severe. Even after the Judge-President and the Prosecutor-General issued statements explaining the reasons for the lenient sentences, the chief co-ordinator of SWAPO, Moses Garoeb, answered with barbs. He retorted in these terms:
In the past the Namibian judiciary system was an exclusive mutual admiration and private club of the white minority. The office of the Prosecutor-General was the dispenser of selective justice using its legal authority to the detriment of the majority of black Namibians. Is it not the best of times for a drastic change from old bones to new ones in our judicial system? Thus the demonstrators were not in contempt of court as suggested by the manipulators of the Namibian Constitution and the vultures of justice. How many black Namibian patriots found their way to the gallows in the Namibian High Court of colonial times, represented at that time by the Prosecutor-General for just being in the possession of a revolver.29
The Prosecutor-General threatened to prosecute Moses Garoeb and some other SWAPO officials for contempt of court, and Judge O’Linn called it a constitutional crisis.30 O’Linn made his own position clear in S v Heita:
Two years ago some people called for my dismissal on the grounds of alleged sympathy with SWAPO. Now a SWAPO-leader and SWAPO-supporters ask for my dismissal, inter alia, on the ground of an alleged colonialist and anti-black mentality. According to them I have become irrelevant to black thinking in Namibia and I should not be on the High Court Bench at all.31
The Prosecutor-General eventually did not prosecute anyone. Nevertheless, the government’s distrust of the judiciary persisted even after the High Court and Supreme Court benches consisted of a majority of black judges. In February 2003 the then prime minister (later Speaker of Parliament), Theo-Ben Gurirab, told visiting students that little progress had been made to change the dominant pre-independence order of the judiciary, which he called a ‘lily white’ bench. At the time of his statement, three of the nine permanent judges were white and the vast majority of magistrates were black. The prime minister later stated that he had been referring to the judiciary in a broader References(p. 308) sense, possibly including the Office of the Prosecutor-General and the Law Society.32 The distrust of the judiciary by the ruling party and government possibly had to do with the new constitutional dispensation in which, for the first time, the separation of powers between the different branches of government was made clear.
The murder of political activist Anton Lubowski, a confident of the founding president, by a covert South African Defence Force unit, the Central Cooperation Bureau (CCB), shortly before independence, resulted in the first amendment to the Criminal Procedure Act after independence. An Irish mercenary who worked with the CCB was arrested and charged with the murder of Lubowski. The Prosecutor-General requested the extradition of a South African suspect and attempted to summon several members of the CCB, who were with the suspects in Namibia at the time of the murder, albeit without success. When it became clear to the High Court that the second suspect and witnesses needed to prosecute the case, would not be sent to Namibia in the foreseeable future, the Court warned the Prosecutor-General that the accused, Acheson, would be released on bail unless the other members implicated in the murder were going to be extradited to stand trial.33
(The Court may) refuse the application for bail if in the opinion of the court, after such inquiry as it deems necessary, it is in the interest of the public or the administration of justice that the accused be retained in custody pending his or her trial.
This amendment of the CPA was an indication of the early tension between the judiciary and government. However, neither the Kleynhans case35 nor the amendment of the Act created any real threat to the independence of the judiciary.
4. The Executive and the Judiciary After Independence: The Difficult Cases
In this section, we will focus on four cases which illustrate how the Namibian government has struggled to operate under a system where the courts are able to operate independently and assert their duty to hold the government accountable.
4.1 Conflict in the House: government and the judiciary
The first serious constitutional conflict between the judiciary and the government erupted in Ngoma v the Minister of Home Affairs.36 The accused was an asylum seeker who played in a band, the Osire Stars, and appeared at a celebration of the Congress of References(p. 309) Democrats (COD), an opposition party. The Osire Stars were allowed to leave the Osire refugee camp before the performance at the COD celebration. However, they were arrested after their appearance at the celebration.
The Osire Stars went to court and obtained a motion from the High Court interdicting the Minister of Home Affairs from arresting the asylum seekers or removing him from the Osire refugee camp. The judge who issued the order in the High Court was former the Chief Justice of Zambia, Justice Silungwe.
The Minister of Home Affairs reacted to the judgment by stating that he would withdraw the work permits of some foreign judges he perceived to be ‘working against the best intentions of the government’.37 However, his colleague, the Minister of Justice, Dr Tjiriange, issued a statement in which he stated that a judge performs his/her judicial functions on the basis of the presidential appointment and not a work permit. He went further to suggest that the Minister of Home Affairs had acted upon a factually incorrect report that he received from an official. He also stated that the minister had apologized to the judges; a fact that was confirmed by Chief Justice Strydom.38 The intervention of the Minister of Justice thus prevented a stand-off between the High Court and the government.
The Sikunda case39 is another instance of government intervention and disregard for the judiciary. Sikunda was one of a group of alleged members of the National Union for the Total Independence of Angola (UNITA) held in the police cells in Dordabis for some time before their detention was leaked to the press. On 10 October 2000, the Minister of Home Affairs informed José Domingo Sikunda that his activities and presence in the Republic of Namibia endangered the security of the state and that he had been declared a prohibited immigrant and his removal from the Republic of Namibia had been ordered. A week later the minister issued a warrant of detention on his letterhead stamped by the Inspector-General. Sikunda’s son brought an urgent application for his release to the High Court and this was granted by acting High Court Judge John Manyarara. The state did not file to defend the application. Despite the court order Sikunda remained in detention. Sikunda’s son brought a new application for his father’s release. Judge President Teek postponed the case in November without taking any action whatsoever to direct the minister to comply with the order. He was severely criticized by the Society of Advocates of Namibia and several newspaper editorials. This led him to withdraw from the case mero motu, claiming that his credibility as a judge had been tainted. On 9 February 2001 two judges of the High References(p. 310) Court found the minister guilty of contempt of court and again ordered the immediate release of Sikunda. Sikunda was freed 108 days after Judge Manyarara initially ordered his release. In giving his judgment, Justice Mainga made the following comment:
I have no doubt that he wilfully and contemptuously refused to comply with the court order. There is no authority, none whatsoever, for the proposition that an order which is wrongly granted by this court can be lawfully defied for whatever laudable motive.
All orders of this court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside …
Judgements, orders, are but what the courts are all about. The effectiveness of a court lies in execution of its judgements and orders. You frustrate or disobey a court order, you strike at one of the foundations that established and founded the State of Namibia. The collapse of rule of law in any country is the birth of anarchy. The rule of law is a cornerstone of the existence of any democratic government and should be proudly guarded and protected.40
Referring to international law, the judge rejected the minister’s claim that he had no choice but to disobey the court order because of the need to ensure that he meets its obligations under United Nations sanctions against UNITA. The Court ruled that the UN resolutions or any international obligation that the state may have are still subservient to the Namibian constitution. The government appealed against the judgment of the full bench of the High Court (Justices Mainga and Hoff). The Supreme Court confirmed the judgment of the High Court.41
In a further blow to the government, the Court ordered the government to pay Sikunda’s legal costs on an attorney and own client scale.42
4.2 The independence of the Prosecutor-General vis-à-vis the Attorney-General
While the function of the Prosecutor-General is not strictly speaking a judicial function, its independence is a prerequisite for a functionally independent judiciary. A Prosecutor-General, who functions under the authority and guidance of the executive, can neither be independent nor act against executive criminality without the approval of her/his superiors in the executive.
The fact that the Namibian Attorney-General and Prosecutor-General were vaguely based on the English system without the specific boundaries of the two positions being spelled out soon led to intense conflict between the two offices, which was eventually settled by the Supreme Court.43 The conflict centred on the functions of the Attorney-References(p. 311) General to exercise the final responsibility for the office of the Prosecutor-General.44 In a protracted case involving racial discrimination against the public broadcaster, the Namibian Broadcasting Corporation (NBC), the conflict came to a climax. The Attorney-General informed the Prosecutor-General that he had decided that prosecution should be withdrawn.45 The Prosecutor-General informed the Attorney-General on the same day that he did not regard himself bound by the instruction.46
After deliberations in the High Court, the Attorney-General brought a petition to the Supreme Court in terms of section 15(1) of the Supreme Court Act of 1990 to determine the essence of prosecutorial independence and the relationship between the two offices. The Supreme Court had to decide whether the Prosecutor-General was fully independent under the constitution. The Attorney-General argued that section 3 of the Criminal Procedure Act (a South African piece of legislation) still applied to Namibia. Section 3 gives the Minister of Justice the final authority in all decisions on prosecutions. He further argued that the Attorney-General performs the same functions under section 3 in independent Namibia that the minister performed before independence. Section 3, he asserted, was not amended by the Namibian constitution. Consequently, the final responsibility for prosecutions should still lie with the Attorney-General. He also cited article 87(a) of the Namibian constitution which defines the powers and functions of the Attorney-General as including the power to ‘exercise the final responsibility for the office of the Prosecutor-General’. According to him, the words ‘final responsibility’ implies final authority. Hence, he argued that the only logical interpretation of article 87(a) is that the Attorney-General has the final say on prosecutions and not the Prosecutor-General.
The Supreme Court did not agree. The Court held that an interpretation which led to the Attorney-General being declared as the final prosecutorial authority would not conform to the constitutional ethos against apartheid. As the Court saw it, there was ‘no other Constitution in the world that seeks to identify a legal ethos against apartheid with greater vigour and intensity’ than the Namibian constitution.47 In delivering the lead judgment, Leon AJA said:
I do not believe that allowing a political appointee to dictate what prosecutions may be initiated, which should be terminated or how they should be conducted can protect those rights and freedoms. Nor do I believe that that would be in accordance with the ideals and aspirations of the Namibian people or in any way represent an articulation of its values.48
References(p. 312) The Court discussed the whole issue of a Rechtsstaat and came to the conclusion that Namibia with its new constitution and its fundamental adherence to the Universal Declaration of Human Rights (UDHR) complied with a modern Rechtsstaat where state authority is bound by a set of higher juridical norms (Grundsätze).49 The Rechtsstaat implies independence of the legal process. Since the South African apartheid regime was not a Rechtsstaat, the powers of the Minister of Justice over prosecutions could not remain intact in a democratic Rechtsstaat such as independent Namibia. The Court also concluded that there need not be a conflict between an independent Prosecutor-General and an Attorney-General that has final responsibility. Final responsibility means financial responsibility, and includes his duty to account to the president, the executive, and the legislature.50
The judgment was a big blow for the government. The Prosecutor-General, who was not a politician and accountable only to the Judicial Service Commission, now had enough power to prevent the government from applying the prosecutorial approach of the former regime since the Attorney-General had no authority or power to interfere with the decisions of the Prosecutor-General. One of the arguments of the Attorney-General had been that it was only the government that had the political will and the moral high ground to introduce a prosecutorial approach that would end the inequalities of the past and restore the people’s trust in the judicial process. However, victory for the Office of the Prosecutor-General meant that the prosecutorial authority could not turn against the Rechtsstaat-approach when it did not suit them. Before the case the Prosecutor-General was often criticized for prosecuting in the spirit of the old order. After this case the Namibian prosecutors were regularly challenged whenever they did not comply with the requirements of the Bill of Rights in the constitution.
4.3 Interference by keeping the lower courts less than independent: the magistracy
The independence of magistrates was often a topic of discussion at magistrates’ conferences, but only became a concern for government when the magistrate of Gobabis took a decision of the permanent secretary of the Ministry of Justice to transfer him to Oshakati on review. The case, Mostert v Minister of Justice,51 eventually ended up in the Supreme Court.
The Supreme Court ruled that in light of the constitutional independence of the magistrates, the general practice to see magistrates as public servants was unacceptable.52 Referring to the South African Constitutional Court case of Van Rooyen and others v The State,53 the Court stated that it did not mean that they should be appointed in the same manner as judges for the following reasons:
• The constitution does not render the same protection to magistrates. There is not even an indication that they must be appointed by an independent commission.
References(p. 313) • Magistrates have a lesser jurisdiction.54
• Magistrates’ courts are courts of first instance; they do not have constitutional review powers, i.e. they cannot strike down unconstitutional laws.55
• Aggrieved persons can take all the judgments of the magistrates’ courts on appeal and longer sentences of district courts are automatically reviewed by the High Court.
In spite of this, the Court said that this did not mean that their independence should not be protected. But the hierarchical differences between magistrates and judges had to be taken in consideration. The Court nevertheless made it clear that the independence of magistrates is part of the constitutional dispensation and that the judge in the court a quo was correct in refusing to make a declaratory order to that effect. The Supreme Court stated that article 78 of the constitution, which deals with judicial independence, covered all the courts in Namibia.56
Since the legislator had not complied with the expectation of article 78 of the constitution to pass legislation regulating an independent magistracy, the permanent secretary of the Ministry of Justice who took over the pre-independence role of the South African directors and the laws regulating the public service assumed this role. As a result, magistrates in Namibia were seen as public servants and dealt with in terms of the Public Service Act 13 of 1995. The authority of the permanent secretary to transfer magistrates (the issue of the Mostert case), was derived from section 23(2) of this Act. The main bone of contention of the appellant, Magistrate Mostert, was the challenge of the power of the Minister of Justice to appoint magistrates. The Act was amended by Act 1 of 1999, but the amendment was not aimed at bringing the magisterial profession in line with the constitution. On the contrary, the minister not only remained as the appointing officer of magistrates, he/she also had the power to appoint any other competent staff member in the public service or a competent retired staff member to act in the place of an absent or incapacitated magistrate.57
The Supreme Court concluded, and correctly so it can be argued, that the amendment did not give effect to article 83(1) of the constitution.58 The Chief Justice then made the following observation regarding the two Acts:
It seems to me futile to leave intact the provisions of Act 32 of 1944 which are in conflict with the Constitution. To do so would be to give legal impetus to provisions which are not constitutional. In my opinion it is necessary to finally cut the string whereby magistrates are regarded as civil servants, and that will only be possible once new legislation completely removes them from the provisions of the Public Service Act.59
References(p. 314) Consequently, the Supreme Court declared sections 9 (as amended) and 10 of the Magistrates’ Courts Act 32 of 1944 unconstitutional. The government was given six months to correct the legislation (that is, to give effect to article 83 of the constitution, by passing legislation that would make magistrates truly independent). Furthermore, the Court declared that section 23(2)(a) of Act 13 of 1995 is not applicable to magistrates and that consequently the order of the permanent secretary to transfer the appellant, was ultra vires.60
In compliance with this decision, the Magistrates Court Act 3 of 2003 was passed by parliament. The Act created a Magistrates’ Commission to regulate and oversee the magistracy. However, the functions of the Magistrates Commission set out in section 3 of the Act seemed to still give the minister considerable powers. According to it, the Commission has the power, inter alia:
a) To ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates take place without favour or prejudice, and that the applicable laws and administrative directives in this regard are applied uniformly and correctly;
b) to ensure that no influencing or victimization of magistrates takes place;
c) to promote the continuous judicial education of magistrates and to make recommendations to the minister in regard thereto;
d) to ensure that properly qualified and competent persons are appointed as magistrates; and
e) to advise the minister regarding any matter which, in the opinion of the Commission, is of the interest for the independence of the magistracy and the efficiency of the administration of justice in the lower courts.
If it had been the intention of the legislator to firmly affirm the independence of the magistracy, one would have expected a central position for the Magistrates’ Commission in the Act. While the judgment did not give specific guidelines as to how the legislator should meet the demands of article 83 of the constitution, the reference to Van Rooyen and others v The State,61 possibly inspired the legislator or Cabinet to look to South Africa for guidelines. In South Africa the minister was replaced by the Magistrates’ Commission.
The Act described the role of the Magistrates’ Commission in appointing magistrates as follows, being that of making recommendations to the minister with regard to ‘the suitability of candidates for appointment as magistrates’. The effect was that the appointment of magistrates was still left in the hands of the Minister of Justice who may appoint magistrates on the recommendation of the Magistrates’ Commission. If it had not been for the permissible ‘may’ in the Act, the fact that the minister acts on the recommendation of the Commission would have created an acceptable check on the power of the minister. It is not clear why the legislator used the permissive ‘may’ rather than the imperative ‘shall’.
References(p. 315) The Act did not go unchallenged. Magistrate Mostert went back to the High Court62 to challenge the independence of the Magistrates’ Commission and the role of the minister under the new Act. The High Court held that although the minister does play a role in the appointment of the Commission, it cannot be said that the members are therefore bound to follow the directives of the minister. According to the High Court there are several checks built into the Act that would make the appointments credible and which would make it extremely difficult for the minister to manipulate any process.63
To put the Court’s position in its proper perspective, it is necessary to look at how the Commission is constituted. It consists of one judge designated by the Judge-President, the Chief Lower Courts (a public servant who is the administrative head of magistrates’ courts), one person designated by the Attorney-General, one person designated by the Judicial Service Commission, one magistrate appointed by the minister from a list of three magistrates nominated by the Judges’ and Magistrates’ Association of Namibia, a staff member of the Ministry of Justice designated by the minister, and one teacher of law appointed by the minister from a list of two teachers of law nominated by the Vice-Chancellor of the University of Namibia.64 Although the minister appoints three persons, he/she is limited in his/her choices of the magistrate and the law teacher. The Public Service Commission is an independent constitutional organ that has the power to designate a member. The judge in this case even went further to state thus:
I see nothing in the Constitution which suggests that magistrates should be appointed by an independent body. That would in any event be requiring standards more rigorous than those in place for the appointment of Judges and would go against the spirit of the Supreme Court judgment. I do not therefore see on what basis the fact that the Minister is the appointing authority for Magistrates can, without more, be objectionable if Judges are appointed by the President who wields ultimate executive power in the Republic.65
Nevertheless there are doubts whether this decision can be easily reconciled with the Supreme Court decision in Ex Parte Attorney-General: In re: The relationship between the Attorney-General and the Prosecutor-General. In this case, the Namibian Supreme Court after pointing out that it matters who makes the appointment of constitutional functionaries said:
I do not believe that allowing a political appointee to dictate what prosecutions may be initiated, which should be terminated or how they should be conducted can protect those rights and freedoms. Nor do I believe that that would be in accordance with the ideals and aspirations of the Namibian people or in any way represent an articulation of its values.66
From this perspective, the fact that the Minister of Justice/Attorney-General appointed two public servants from their employees did not enhance the independence of the Commission, especially as the third member (Chief Lower Courts) was also a staff References(p. 316) member of the Ministry of Justice. The Court stated that even if the Commission was not independent, it did not reflect negatively on the independence of magistrates.
The applicants did not appeal to the Supreme Court. Despite the positive judgment of Justice Strydom, the Magistrates Act and the subsequent High Court case represent lost opportunities to make the magistrates really independent. The magistrates are still not fully independent and the authority of the Minister of Justice remains intact. However, in a ground breaking case the Supreme Court limited the power of the minister on the crucial issue of the dismissal of magistrates.67 The minister failed to act upon a request of the Magistrates’ Commission to dismiss a magistrate, Ms Shanika, who had been found guilty of misconduct in a disciplinary hearing. The minister argued that since she had a legal right to consider recommendations of the Commission to appoint individuals as magistrates, she also had discretion when the Commission recommends the dismissal of a magistrate. The Supreme Court concurred with an earlier High Court judgment that while section 13 of the Magistrates’ Court Act does give the minister a discretion in following the recommendations of appointing a magistrate in terms of the Act (‘the Minister may … ’), section 21(3) dealing with dismissals does not allow the minister to reject the recommendations of the Commission (‘the Minister must … ’). The role of the minister is restricted to ensuring that the correct procedures were followed. Although the composition of the Magistrates’ Commission did not remove all the questions regarding its independence, the Supreme Court ruling in dealing with the Commission’s conflict with the minister strengthened the position of the Magistrates’ Commission as an independent body and limited the powers of the minister.
In September 2014, only two months before the parliamentary and presidential elections, the Attorney-General brought several constitutional amendments to parliament. The amendments and the processes are still a bone of contention since civil society and the public were not consulted, and the amendments were rushed through parliament in a matter of weeks. However, the amendments brought magistrates a step closer to equal status with judges. The Magistrates’ Commission is now included in article 83(4) of the constitution. Article 78(7) of the constitution also makes it clear that the Chief Justice not only supervises and takes responsibility for the judiciary, but also monitors the norms and standards of all courts. Although the Magistrates’ Commission and not the Judicial Service Commission still oversees the operation of magistrates, both the profession of magistrates and the Magistrates’ Commission are now constitutional functionaries of the judiciary. Learning from the Minister of Justice v Magistrates Commission and another case, one of these amendments made it clear that the president no longer has any discretion when the Judicial Service Commission has recommended the termination of a judge’s employment.68
References(p. 317) 4.4 Interference by executive statements
In the mid-1990s sodomy was still a common law crime in Namibia, but this was seldom enforced. Public opinion was divided on the issue. AIDS activists saw the distribution of condoms as an imperative to save lives. Since Namibia had been following South Africa in most constitutional issues, some members of the legal fraternity believed that it was only a matter of time before the crime of sodomy would also be declared unconstitutional. However, the Prosecutor-General refused to grant permission for the distribution of condoms in prisons until the legislator or a competent court changed the legal position.
The Namibian politicians managed to keep the contradiction between sexual freedom and not challenging the constitutionality of criminalizing sodomy in balance during this period. No attempt was made to arrest adult same sex partners for committing the crime of sodomy, as long as it happened in the privacy of the home. There were other reasons to believe that Namibia was on the same path as South Africa in moving towards a more tolerant society. While the constitution only lists ‘sex’ as a non-discriminatory identity, the Labour Act 6 of 1992 explicitly added ‘sexual orientation’ to the list. It would be strange if the Namibian legislator meant to broaden the categories of non-discrimination for the new labour dispensation, but not for other constitutional rights. If the Constituent Assembly did not want to protect sexual orientation in the constitution, why would the same people (then sitting as the National Assembly) decide to protect it in the Labour Act? A more likely interpretation is that the Constituent Assembly used the word ‘sex’ in a broad manner to include ‘sexual orientation’. When the legislator dealt with the issue of non-discriminatory categories two years later they added the words ‘sexual orientation’ merely to make it clear that sexual orientation is also a non-discriminatory clause. In other words, they did not create a new category of non-discrimination, but explained the scope of the word ‘sex’.
It therefore came as a surprise when President Nujoma and several other senior ministers, in following the example of Zimbabwean President Robert Mugabe, started a concerted attack on homosexuals and lesbians in the mid-1990s. There had been no public debate on the necessity or not for legal action against homosexuals. It seemed to be contrary to the social and legal development since independence. Not once since independence had any politician made negative comments about gays or homosexuality, and as noted above, the Labour Act included sexual orientation as a non-discriminatory clause. The anti-gay rhetoric of this period paved the way for the constitutional interpretation of the word ‘sex’ as a non-discriminatory category.
Although the government’s verbal attacks on homosexuals and lesbians started in the mid-1990s, the Supreme Court only had the first opportunity to look at the constitutional rights of homosexuals in March 2001 in the now famous Frank case.69 In this case, the Immigration Selection Board appealed against a review decision by the High Court after the latter reviewed and set aside a decision, refusing a permanent residence permit to Frank. The High Court directed the Immigration Selection Board References(p. 318) to authorize the issuing to Erna Elizabeth Frank of a permanent residence permit within thirty days of date of the order. Frank’s application for permanent residence was turned down twice. She alleged that her lesbian relationship with Elizabeth Kachas might have been the reason why her application for a permanent residence permit had been rejected. She argued that if her relationship with a Namibian citizen had been a heterosexual one, she could have married and would have been able to reside in Namibia or apply for citizenship in terms of article 4(3)(a) of the Namibian constitution. The Board, she alleged, did not take this factor into account and therefore violated her right to equality and freedom from discrimination guaranteed by article 10, her right to privacy guaranteed by article 13(1), and protection of the family guaranteed by article 14 of the constitution.
The High Court concluded that the Board was wrong in its assumption that Frank’s long term relationship was not one recognized in a court of law and was therefore not able to assist the first applicant’s application. The Court relied on Isaacs v Isaacs,70 in which the learned judge found a relationship where the parties put all their assets, both present and any they may acquire in future, in a pool from which they paid expenses incurred by both, as a relationship acknowledged and protected by the common law. Such an agreement is known as a universal partnership and can be entered into by verbal undertaking, in writing, or even tacitly. Referring to article 10 of the Namibian constitution,71 the Court concluded that if a man and woman can enter into such a relationship, and since the partnership is so strong that a court of law would divide the assets when it dissolves, in terms of the constitutional equality principle of article 10(2), two lesbians should also be able to enter into such a partnership. Consequently, the Court found that a relationship between the applicants was indeed protected by law and should have been considered by the respondent. In a rather long shot the Court did not refer the case back to the Board, but instructed the board to grant the first applicant permanent residence.
The case went on appeal in the Supreme Court. It was complicated by a number of procedural issues (late filing by the appellant) as well as some factual disputes. However, focusing our attention on the lesbian issue, the Court came to a number of conclusions. First, it concluded that the Immigration Selection Board had wide discretionary powers and the High Court had gone too far in exercising its review powers in the matter. It said:
Although this Court, as well as the High Court, undoubtedly has (sic) wide powers to set aside the decisions of administrative tribunals and even to substitute its own decision on the merits for that of such a tribunal in appropriate circumstances, the present case is not one where the substitution of our decision for that of the Board is justified. In my respectful view, that would amount to usurping the function of the Board, entrusted to it by the legislature of a sovereign country.72
References(p. 319) Secondly, the Court investigated the issue of the protection given to lesbian couples in terms of the constitution, especially article 10(2) and concluded thus:
(i) It is only unfair discrimination which is constitutionally impermissible, and which will infringe Article 10 of the Namibian Constitution;73
(ii) A homosexual relationship does not have the same status and protection of a heterosexual marriage:
A Court requiring a ‘homosexual relationship’ to be read into the provisions of the Constitution and or the Immigration Act would itself amount to a breach of the tenet of construction that a constitution must be interpreted ‘purposively’.74
Thirdly, in determining the norms and values of the Namibian people in relation to same sex relationships, the Court made the following comment:
In contrast, as alleged by the respondents, the President of Namibia as well as the Minister of Home Affairs, have expressed themselves repeatedly in public against the recognition and encouragement of homosexual relationships. As far as they are concerned, homosexual relationships should not be encouraged because that would be against the traditions and values of the Namibian people and would undermine those traditions and values. It is a notorious fact of which this Court can take judicial notice that when the issue was brought up in Parliament, nobody on the Government benches, which represent 77 per cent of the Namibian electorate, made any comment to the contrary.75
Finally, the Court then did an egg dance contradicting itself and stated thus:
Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprives them of the protection of other provisions of the Namibian Constitution.76
However, it fails to explain why parliament should not protect the nation against people and a practice seen by customary law as extremely wicked but rare.77 If the views of the president and Minister of Home Affairs quoted as value markers by the Court78 represent the norms and the values of the Namibian people, there is always a possibility that parliament will eventually pass laws to oppress homosexuality.
Although the initial hate speech and anti-gay rhetoric of the then president had no immediate legal consequences, it laid the foundation for the interpretation by the Supreme Court of article 10(2) of the Constitution. The Supreme Court determined the norms and values of the Namibian people regarding homosexual issues by taking legal notice of the anti-homosexual statements of the then president and a senior Cabinet minister. While the Supreme Court also worked with a narrow understanding of constitutional review of a pre-independence South African Act, the Court made it clear that the attitude of the president and a senior member of the executive played a decisive role in its reading of the non-discriminatory clause of the constitution. It is fair to accept that without the anti-gay rhetoric the Supreme Court may have come to a different conclusion.
References(p. 320) When the Labour Act 6 of 1992 was replaced by a new Labour Act 11 of 2007, sexual orientation was no longer a non-discriminatory category. The only logical conclusion one can come to is that the anti-gay rhetoric was a pre-meditated process to influence public opinion and eventually break with its initial tolerant approach towards homosexual orientation. The Court was a willing partner in this process.
4. Conclusion
The principle of the separation of powers is one of the foundations of the Namibian constitution. The Namibian courts play an important role in guarding and protecting both the separation of powers and their independence. The Supreme Court judgments discussed in this chapter underlined that not only the judges of the superior courts, but also the magistrates and the prosecutorial authority need to be independent.
Initially it seemed as if the government and the ruling party expected the superior courts to fall in line with its policies. While the government was not directly involved in the early attacks on the court, after the Kleynhans judgment, a senior member of the ruling party who threatened a judge of the High Court was not reprimanded by government officials. In Ngoma v the Minister of Home Affairs79 a minister who threatened a judge (the former Chief Justice of Zambia) with withdrawal of his work permit received no sanctions. However, as we saw, the government backed off once the courts made a clear statement in every case by not allowing the executive or members of the ruling party to dictate to it.
In all the other cases discussed, the government complied with the judgments of the superior courts, even where these were contrary to its political objectives. The government accepted the independence of the Prosecutor-General, despite a strong conviction that the Attorney-General should be the final authority. Once the High Court and Supreme Court ruled against the Minister of Home Affairs’ deportation order of Sikunda, the latter was allowed to stay in Namibia. But a golden opportunity was lost when parliament did not bring the Magistrates’ Courts and magistrates under the same authority as the superior courts and judges. Magistrates do not function under the leadership and guidance of the Chief Justice, but under the authority of the Magistrates’ Commission. While recent amendments to the law brought the magistrates one step closer to being reasonably independent, there is still a difference in the appointment and accountability of judges and magistrates.
While there is no evidence that government planned the anti-homosexual rhetoric of the mid-1990s to put pressure on the judiciary, since the courts recognized the norms and values of the people as a guideline in constitutional adjudication, the Frank case is a clear indication of the power of rhetoric. Under the presidency of President H Pohamba the anti-gay rhetoric stopped, but no effort has been made to address the legal position of homosexual couples in a permanent relationship.
In conclusion, although there has generally been friction between the executive and the judiciary, with the former trying to control the latter, the Namibian judiciary has References(p. 321) remained fairly independent and withstood pressure from the executive. This has enabled it to ensure that the executive does not abuse its dominant position.
Bibliography
- Author unknown, ‘Attack of Moses Garoeb on the judiciary’ The Namibian (18 October 1991) 3
- Author unknown, ‘Ekandjo trashes the law’ The Namibian (28 July 2000) 1
- Dyzenhaus D, Truth, Reconciliation and the Apartheid Legal Order (Juta and Co 1998)
- Menges W, ‘PM sticks to his guns on the judiciary’ The Namibian (6 February 2003) 3
- The Namibian, 18 October 1991
- O’Linn B, Namibia. The Sacred Trust of Civilization (rev edn 2009, Gamsberg Macmillan 2003)
- Steytler N, ‘The Judicialization of Namibian Politics’ (1991) 9 South African Journal on Human Rights 477
- Zaaruka B, ‘Institutional Dynamics and Impact on Capital Formation: Evidence from Namibia and Tanzania’ (unpublished PhD thesis in economics, University of the Witwatersrand 2012)(p. 322)
Footnotes:
1 When SWAPO started using the name ‘Namibia’ for the territory, the words ‘South West Africa’ in their names became an embarrassment and their names changed to SWANU of Namibia and SWAPO of Namibia, and when they returned from exile, SWAPO Party of Namibia.
3 The traditional government of national unity (TGNU) was a creation of the South African government. Its aim was to work towards a negotiated settlement with the so-called internal parties—mostly those groups who were part of the Turnhalle negotiations. The TGNU operated in the country between June 1985 and March 1989. The real political power and sovereignty, however, remained in South African hands. The Administrator-General, as the South African government’s representative, remained the main representative of the sovereign in Windhoek.
5 Benethelin Zaaruka, ‘Institutional Dynamics and Impact on Capital Formation: Evidence from Namibia and Tanzania’ (PhD thesis, University of the Witwatersrand 2012) 46.
8 Katofa (n 6); Katofa v Administrator-General for South West Africa and Another 1986 (1) SA 800 (SWA).
9 The case record identifies the applicant, Katofa, as the brother of Josef Katofa, the detainee on whose behalf the application was made. See Katofa (n 6) 213.
10 The Court made no distinction between habeas corpus and the Roman Dutch remedy of homine libero et exhibendo. It seems that the Court used the terms interchangeably, without any reference to the differences between them.
11 Katofa (n 6) 215–16.
12 ibid 224.
13 Following Principal Immigration Officer and Minister of Interior v Narayansamy 1916 TPD 274, the Court made no difference between the two remedies. In the Supreme Court of Appeal, the differences became a bone of contention.
14 ibid 222.
15 Kabinet van die Tussentydse Regering vir Suidwes-Afrika en ‘n ander v Katofa 1987 (1) SA 695 (A).
16 ibid.
17 See Chikane v Cabinet for the Territory of South West Africa 1990 (1) SA 349 and The National Assembly for the Territory of South West Africa v Eins 1988 (3) SA 369 (A). The cases in the court a quo were not reported.
18 See State v Vorster, unreported case of the Supreme Court of SWA (on file with the author), where the prosecution was stopped on 1 March 1988 by the handing in of a certificate in terms section 103 of the Defence Act 44 of 1957 and Shifidi (n 7).
19 Shifidi (n 7).
27 See, for example, the letter written by Helmut Angula on behalf of SWAPO in response to O’Linn’s criticism of the 1 April 1989 crisis: ‘It is not the habit of SWAPO to enter into polemic with opponents of apartheid, let alone with the distinguished President of the Windhoek Bar Council, whose personal integrity we respect.’ The Namibian (Windhoek, 28 April 1989) quoted in O’Linn B, The Sacred Trust of Civilisation: Ideal and Reality (vol 1, Gamsberg Macmillan Publishers 2009) 324.
28 See Judge O’Linn’s comments in Heita (n 26).
29 See The Namibian (Windhoek, 18 October 1991), quoted in S v Heita (n 26) 786.
30 ibid.
31 ibid.
32 Werner Menges, ‘PM sticks to his guns on the judiciary’ The Namibian (Windhoek, 6 February 2003).
34 Section 3 of Act 5 of 1991.
37 See The Namibian (Windhoek, 18 September 2000); ‘Government Falls Silent on Jerry’s Tirade’ (The Namibian, 1 August 2000) <http://allafrica.com/stories200008010065.html>, last accessed on 1 June 2015.
38 Permanent Secretary of Justice ‘Press release by Ministry of Justice, 12 September 2000’ (Afrol, 2000) <http://www.afrol.com/News/nam002freejudiciary.htm#up> accessed on 12 June 2003; T Amupadhi, ‘Strydom Applauds Ekandjo, Says Constitution the Winner’ The Namibian (Windhoek, 12 September 2000) <http://allafica.com/stories/200009120122.html> accessed 1 June 2015.
39 Three High Court cases and the appeal case in the Supreme Court were reported: Sikunda v Government of the Republic of Namibia And Another (1) 2001 NR 67 (HC) (unreported, on file with the author); Sikunda v Government of the Republic Of Namibia and Another (2) 2001 NR 84 (HC) (unreported, on file with the author); Sikunda v Government of the Republic Of Namibia and Another (3) 2001 NR 181 (HC); Government of The Republic of Namibia v Sikunda 2002 SA5/0 NASC 1.
41 ibid.
42 A party who is ordered to pay legal costs on attorney and own client scale will pay much more than in the case of other types of costs. The person ordered to pay these costs is liable for the costs of all services rendered or disbursements incurred by the attorney in prosecuting the case.
43 Ex parte: Attorney-General Re: The Constitutional Relationship between The Attorney-General and the Prosecutor-General 1998 NR 282 (SC) (1).
44 In the heads of argument on behalf of the Prosecutor-General (Ex parte: Attorney-General (n 43) 119ff.), counsel quotes a letter of the Prosecutor-General to the Judicial Service Commission on 27 March 1992, after the Attorney-General had laid a complaint of insubordination against the Prosecutor-General.
The Prosecutor-General complained amongst other things that his staff received instructions from the office of the Attorney-General without his knowledge, that advocates in his office were appointed as investigators, which he considered to be undesirable and that he considered an instruction from the Attorney-General to withdraw a specific case as an attempt to defeat the ends of justice (Heads of argument, 120ff.)
46 ibid 128.
47 Ex parte: Attorney-General (n 43) 14.
48 ibid 14.
49 ibid 32.
50 ibid 38.
52 ibid.
54 This is true of district magistrates but not of regional court magistrates. The jurisdiction of regional court magistrates has increased tremendously since independence. A regional court magistrate can hear any criminal case, including murder and rape. The only exception is high treason. She can bestow a sentence of twenty years per charge.
55 It is true that the regional court has no appeal power over the district courts. However, district courts have limited appeal powers. The Community Courts Act 263 of 2003, gives district courts appeal powers over the community court judgments, although no appeal has yet gone to a district court.
58 Mostert (n 51) 33.
59 ibid 35.
60 ibid 39.
61 Van Rooyen (n 53).
62 Walter Mostert and another v Magistrates Commission and another Case no (P) I 1857/2004 unreported case of the High Court of Namibia (on file with the author).
63 ibid 20.
65 Walter Mostert (n 62) 23.
66 ibid 14.
67 Minister of Justice v Magistrates Commission and another unreported case of the Supreme Court of Namibia, Case no SA 17/2010, per AJA Langa. AJA Strydom and AJA O’ Regan concurred, delivered on 21 June 2012.
68 See the amended art 84(1)(c):
(c) if the Judicial Service Commission, after due deliberation, advises the President to remove the Judge for any reason referred to in Sub-Article (2), the President must remove such Judge from office.
69 Frank v The Chairperson of the Immigration Selection Board 1999 NR 257 (HC) and The Chairperson of the Immigration Selection Board v Erna Elizabeth Frank and another 2001 NR 107 (SCA).
72 The Chairperson of the Immigration Selection Board (n 69) 113.
73 ibid 114.
74 ibid 115.
75 ibid 211.
76 ibid 119.
77 ibid 106.
78 ibid 103.
