REPORTABLE

CASE
NO.: (P) I 1857/2004

SUMMARY

DAMASEB,
JP et ANGULA, AJ

2005.07.25

WALTER
MOSTERT & ANOTHER versus MAGISTRATES COMMISSION &
ANOTHER

CONSTITUTIONAL
LAW: MAGISTRATES ACT, 3 OF 2003

• Institutional
  independence of the magistracy. Composition of Magistrate’s
  Commission (s 5) challenged as being unconstitutional and threat to
  the independence of magistracy.

  
  

• Test
  for institutional independence of Judiciary examined.

  
  

• S
  13 giving power to Minister to appoint Magistrates discussed- such
  power not absolute and subject to constitutional control.

  
  

CASE NO.: (P) I
1857/2004

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

WALTER
MOSTERT FIRST PLAINTIFF

RONEL
NICOLENE MOSTERT

(Born
DE WIT) SECOND PLAINTIFF

and

THE
MAGISTRATE’S COMMISSION FIRST DEFENDANT

THE
GOVERNMENT OF THE REPUBLIC

OF
NAMIBIA SECOND DEFENDANT

CORAM:
DAMASEB, JP et ANGULA,
AJ

Heard
on: 2004.10.27

Delivered
on: 2005.07.25

JUDGMENT

DAMASEB,
JP: These proceedings were brought by way of action.

At
the commencement of the proceedings, by agreement between the
parties, we ordered, in terms of Rule 33(4) of the Rules of this
Court, that claim 1 be separated from the rest of the claims.
Arguments were thus confined to claim 1 and this judgment deals with
that claim only. It is submitted by Counsel for the plaintiffs in the
written heads of argument that ‘’ the first main claim should
be dealt with first and separately as the outcome can render further
proceedings superfluous’’. At the commencement of the hearing
Mr. Botes submitted that no evidence is required to decide the
dispute raised in claim 1.

Mr.
Botes appeared for the plaintiffs while Mr. Hinda appeared for the
defendants.

The
particulars in respect of claim 1 are set out as follows:

“7. On 28^th
January 2003 the Supreme Court of the Republic of Namibia gave down a
judgment in the matter Walter Mostert v The Minister of Justice
wherein certain requirements were laid down for the creation of an
independent body to inter alia regulate and control the appointment,
transfer and termination of the services of Magistrates.

8. Pursuant to the
judgment referred to hereinbefore the First Defendant was created
and/or established in terms of Section 5 of the Magistrates Act, Act
3 of 2003 (hereinafter the Act.)

9. The provisions
of Section 5 of the Act however is null and void because of inter
alia the following:

9.1 it does not
comply with the requirements laid down by the Supreme Court in the
Walter Mostert judgment;

9.2 it does not
create an independent body which has to uphold an independent
magistracy;

9.3 it does not
contain any provisions as to the procedures and criteria to be
applied to the transfer of Magistrates in order to establish and
uphold an independent magistracy;

9.4 it is in
conflict and/or breach of Article 78(2) of the Namibian Constitution
which requires that courts shall be independent, subject only to the
Constitution and Law.

10. In the
premises the First Defendant had no locus standi in iudicio to
transfer First Plaintiff.”

“WHEREFORE FIRST
AND SECOND PLAINTIFFS CLAIM:

1. AD
   CLAIM NO. 1

   
   

1. That
   the Honourable Court declare

   
   

1. that
   the Magistrates Act, Act 3 of 2003 and more particularly Section 5
   thereof read with the relevant Regulations does not comply with
   the requirements laid down to establish an independent magistracy;

   
   

2. that
   the appointment of the First Defendant in terms of Section 5 of
   the Magistrates Act, Act 3 of 2003 is null and void in that the
   said section does not provide for the appointment of an
   independent body to establish and promote an independent
   magistracy;

   
   

3. that
   the decision taken by First Defendant on or about 30^th
   June 2003 at Windhoek to transfer the First Plaintiff with
   immediate effect to Oshakati is null and void alternatively that
   the First Defendant had no locus standi in iudicio to make the
   decision and to transfer the First Plaintiff.”

   
   

Some
preliminary remarks on the particulars of claim are necessary at this
early stage. Sub-paragraphs 9.1 and 9.2 of the particulars of claim
really amount to the same thing: it seems to me that the reasoning
underlying the two sub-paragraphs is that the failure to comply with
what are referred to as the “requirements” laid down in the
Walter Mostert judgment of the Supreme Court resulted in the lack of
an independent magistracy. Sub-paragraph 9.4 is inextricably woven
with sub-paragraphs 9.1 and 9.2 and does not, with respect,
constitute a stand-alone ground. As for sub-paragraph 9.3, I take the
view that the failure to create Regulations cannot be a ground for
declaring s 5 unconstitutional. At best for the plaintiffs it can
only be a ground for review of a transfer, in terms of Rule 53 of the
Rules of the High Court. In my respectful view, therefore, the nub of
the plaintiffs’ case is that the Act does not create an independent
magistracy because the Magistrates Commission ( ‘the Commission’
) created by s 5, read with s 2, is not an independent Commission but
one under the control of the Minister of Justice the (“Minister”).

First
plaintiff is a Magistrate who until 30^th June 2003 was
stationed at Gobabis. It is common cause that on 30th June 2003 the
first defendant took a decision to transfer the first plaintiff to
Oshakati with immediate effect. This transfer is not accepted by the
first plaintiff. Second plaintiff, being the wife of the first
plaintiff, makes common cause with him.

First
and second defendants opposed the relief sought and filed a plea.
They deny that the Supreme Court judgment laid down requirements for
the creation of an independent body to regulate Magistrates. The
defendants also plead that first defendant was established by virtue
of s 2 and not s 5¹.
The defendants admit that s 5 of the Act does not contain procedures
and criteria to transfer magistrates but allege that these are
‘elsewhere in the Act, in the regulations promulgated under the
provisions of the Act, and under the common law’.

On
28^th January 2003 the Supreme Court, per Strydom CJ
(O’Linn et Chomba AJJA concurring) handed down judgment in
the matter of Walter Mostert v The Minister of Justice under
Case No.: SA 3/2002. (I shall refer to this judgment as the ‘Supreme
Court judgment’ but when I refer to the case itself brought by
Mr. Mostert I shall refer to it as the ‘first Mostert case’.)
In the first Mostert case, Mr Mostert (the first plaintiff in the
proceedings now before us), challenged his transfer by the Permanent
Secretary of Justice from Gobabis to Oshakati, seeking the following
relief:

“…

2.1 That the
decision of the Permanent Secretary for Justice to transfer the
applicant to Oshakati be reviewed and set aside.

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

…

3. That the
Respondent be interdicted to transfer the Applicant from Gobabis
and/or to evict him from the government house situated at Lieutenant
Lampe Street, Gobabis, pending the finalisation of the Application
referred to in paragraph 2.”

In
the High Court (per Levy AJ) Mostert was only partly successful and
therefore appealed to the Supreme Court. On appeal, the Supreme
Court, as far as is relevant, ordered as follows:

“1. It is
declared that:

(a) 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. This order and the transfer which took
place in effect, will however remain in force and effective until
30^th June 2003, provided that appropriate legislation is
passed and action taken in accordance with such legislation to remedy
the defects in the existing transfer, on or before the 30^th
June 2003.

(b) Section 9 (as
amended) and section 10 of the Magistrate’s Court Act, Act 32 of
1944, is declared unconstitutional. These provisions will however
remain in force until 30^th June 2003, on condition that
legislation correcting the defects is properly passed and gazetted on
or before 30^th June 2003.

(c) The transfer
of magistrates does not per se constitute a threat to their
independence.

(d) Until such
time on or before 30^th June 2003, when the appropriate
contemplated legislation is passed to authorize the appointment of
magistrates, the Minister of Justice or such person duly authorized
by such Minister may constitute to appoint magistrates in terms of s.
9 of Act 32 of 1944, as amended by Act 1 of 1999.”

Following
the above order of the Supreme Court, the Government introduced a
legislative measure aimed at complying with the order of the Supreme
Court. It is that legislative measure which has given rise to the
present proceedings. The legislative measure in question is the
Magistrates’ Act, 3 of 2003 (hereafter ‘the Act ’). The long
title of the Act reads thus:

“To
provide for the establishment, objects, functions and constitution of
a Magistrates Commission; to provide for the establishment of a
magistracy outside the Public Service; to further regulate the
appointment, qualifications, remuneration and other conditions of
service of, and retirement and vacation of office by, magistrates; to
provide that certain conditions of service of magistrates may be
prescribed by regulation; and to provide for matters in connection
therewith.”

The
objects of the Commission are set out in s 3 as follows:

“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;

2. to
   ensure that no influencing or victimization of magistrates takes
   place;

   
   

3. to
   promote the continuous judicial education of magistrates and to make
   recommendations to the Minister in regard thereto;

   
   

4. to
   ensure that properly qualified and competent persons are appointed
   as magistrates; and

   
   

5. 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.

   
   

The
functions of the Commission are set out as follows in s 4:

1. The
   Commission must –

   
   
   
   

   1. prepare
      estimates of the expenditure of the Commission and the magistracy
      for inclusion in the annual or additional budget of the Ministry of
      Justice;

      
      

   2. compile,
      after consultation with the Judges’ and Magistrates’
      Association of Namibia, a code of conduct to be compiled with by
      magistrates;

      
      

   3. receive
      and investigate, in the prescribed manner but subject to subsection
      (4), complaints from members of the public on alleged improper
      conduct of magistrates or alleged maladministration of justice in
      the lower courts;

      
      

   4. receive
      and investigate, in the prescribed manner, complaints and
      grievances of magistrates;

      
      

   5. carry
      out or cause to be carried out disciplinary investigations into
      alleged misconduct of magistrates;

      
      

   6. make
      recommendations to the Minister with regard to –

      
      
      
      

      1. the
         suitability of candidates for appointment as magistrates;

         
         

      2. the
         minimum standard of qualification required for the purposes of
         section 14;

         
         

      3. the
         conditions of service of magistrates, including their remuneration
         and retirement benefits;

         
         

      4. the
         dismissal and retirement of magistrates; and

         
         

      5. any
         matter referred to in section 3(e); and

         
         
      
      

   7. perform
      any other function entrusted to the Commission by or under this Act
      or any other law.

      
      
   
   

2) The
Commission -

1. may,
   in the prescribed manner, promote magistrates according to their
   performance to higher grades;

   
   

2. may,
   subject to this Act, transfer magistrates when it is necessary in
   the interests of the administration of justice so to do.

   
   

3. A
   committee may, subject to the directions and control of the
   Commission, perform any of the duties referred to in subsection
   (1)(a), (b) or (e).

   
   

4. Nothing
   in subsection (1)(c) contained is to be construed as empowering the
   Commission to interfere with the judicial independence or the
   judicial functioning of a magistrate. (my underlining)

   
   

In
terms of s 5:

“(1) The
Commission consists of –

1. a
   judge of the High Court of Namibia, designated by the Judge
   President, who is the chairperson;

   
   

2. the
   Chief: Lower Courts;

   
   

3. one
   magistrate appointed by the Minister from a list of three
   magistrates nominated by the Judges’ and Magistrates’
   Association of Namibia;

   
   

4. one
   staff member by the Ministry of Justice designated by the Minister;

   
   

5. one
   suitable person designated by the Public Service Commission;

   
   

6. one
   suitable person designated by the Attorney-General; and

   
   

7. 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;

   
   

2. For
   the purposes of subsection (1), the Minister must –

   
   
   
   

   1. direct
      in writing –

      
      
   
   

i) the
Judge-President to designate a judge of the High Court of Namibia;
and

ii) the
Public Service Commission and the Attorney-General to each designate
one suitable person,

to
serve as members of the Commission from a date specified in the
direction; and

b) invite
in writing -

i) the
Judges’ and Magistrates’ Association of Namibia to

nominate
in writing, within the period specified in the invitation, three
magistrates;

ii) the
Vice-Chancellor of the University of Namibia to nominate in writing,
within the period specified in the invitation, two teachers of law,

for
appointment, subject to paragraphs (c) and (g), respectively, of that
subsection, as members of the Commission. (my underlinings)

Considering
that the plaintiffs’ cause of action is founded on the
decision of the Supreme Court, the first task facing this Court is to
distill the ratio decidendi from that judgment.

The
dispute in the first Mostert case revolved around the power given to
the Permanent Secretary of Justice by s 23(2) of the Public Service
Act, 1995 to transfer magistrates. The Permanent Secretary, using
that power, transferred Magistrate Mostert from Gobabis to Oshakati.
Mostert then took the decision on review relying on common law
grounds and, for our present purposes, on the ground that the
transfer was ultra vires because s 23 of the Public Service
Act 1995 did not apply to magistrates who, as members of the
Judiciary, were outside the purview of that section. In the Supreme
Court judgment, Strydom CJ said (at p35):

‘’Section
23(2) empowers the Permanent Secretary to transfer ‘staff members’
and it was in terms of this section that the Permanent Secretary of
Justice exercised her powers to transfer the appellant, this
notwithstanding the clear provisions of the Constitution that
magistrates are part of the Judiciary of Namibia whose independence
was guaranteed by the Constitution. This was clearly set out in
Articles 12 (1)(a), 78(1) and (2) and 83 of the Constitution.”

And
then (at pp 36-39) the learned Chief Justice continued as follows:

“Although
the Namibian Constitution , as far as Namibia is concerned,
envisaged an Act of the Namibian Parliament whereby the jurisdiction
of the court and its procedures were to be established, and which
would also regulate the appointment of magistrates and other judicial
officers, this has not happened so far. In Namibia, act 32 of
1944, with minor amendments, still regulates the procedures and
jurisdiction of the court as well as the appointment of officers. One
of the amendments to Act 32 of 1944 was to replace sec 9 of the Act
with a new section. This was effected by Act No. 1 of 1999 which
became law on the 9^th March 1999. The amendment empowers
the Minster of Justice, or the person delegated by him, to appoint
magistrates but subject to the provisions of the Public service Act …
Section 10 of Act 32 of 1944, dealing with the qualifications for
appointment of judicial officers, is also subject to the law
governing the public service.

…

The
amendments to sec. 9 of Act 32 of 1944 did not give effect to Article
83(1) of the Constitution which provides that lower courts shall be
established by an Act of Parliament and should be independent as
further provided for in Article 78(2), read with Article 12(1)(a) of
the Constitution. In fact, the amendment, to the contrary, further
diminished the independence of, at least the Regional Divisions by
doing away with the Appointments Advisory Board established therefor.

…

Notwithstanding
the provisions of the Constitution the situation in Namibia, so it
seems to me, is that in terms of the provisions of Act 32 of 1944,
magistrates are still regarded as part of the civil service and the
amendment to sec 9 of the Act did not alter the position. When
the Permanent Secretary said that she transferred the appellant in
terms of the provisions of act s 23 (2) of the Public Service Act she
acted in terms of existing legislation. It further seems to me that
the mischief was not caused by sec 23(2) but in fact by the
provisions Act 32 of 1944, as amended by Act 1 of 199, and that the
appellant should also have attacked those provisions rather than to
limit himself to the provisions of the Public Service Act. 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 remove them from the provisions of the
Public service Act.

…

For
as long as magistrates remain subject to the provisions of the Public
Service Act, which virtually designates them as employees of the
Government and which requires of them prompt execution of Government
policy and directives, their independence will be under threat and,
what is just as important, is that magistrates would not be perceived
by the public as independent and as a separate arm of government.
I therefore agree with the order of the Court a quo that sec. 23(2)
did not apply to magistrates.

…

The
effect of all this is that the Permanent Secretary could, in my
opinion, not act and transfer magistrates in terms of the provisions
of sec. 23(2) of the Public Service Act”. ( underlinings are mine)

Strydom
CJ continued as follows in respect of s 23(2) (at pp 32- 34):

‘’In regard to
the independence of the Courts, and bearing in mind that we have
shared for a long time the same legislative enactment concerning the
magistrate’s courts (Act 32 of 1944) with South Africa, the general
observations by Chaskalson CJ, in the Van Rooyen case, supra, as to
what is necessary for protection of the independence of the various
Courts at different levels is, in my opinion, also applicable to
Namibia. It was pointed out by the learned Judge that the South
African Constitution dealt differently with the appointment of
Judges, on the one hand, and other judicial officers, on the other
hand. This applies also to Namibia. In terms of Article 82 of our
Constitution Judges of the High and Supreme Courts are appointed by
the President on the recommendation of the Judicial Service
Commission whereas Lower Courts, which shall be presided by
magistrates ‘’…shall be appointed in accordance with
procedures prescribed by Act of parliament’’. Article 83 (2).’’

Strydom
CJ then went on to cite the following passages from the Van Rooyen
judgment^²
at 269:

“The
constitutional protection of the core values of judicial independence
accorded to all courts by the South African Constitution means that
all courts are entitled to and have the basic protection that is
required. Section 165(2) of the Constitution pointedly states that
‘t(he courts are independent’. Implicit in this is recognition
of the fact that the courts and their structure, with the
hierarchical differences between higher courts and lower courts which
then existed, are considered by the Constitution to be independent.
This does not mean that particular provisions of legislation
governing the structure and functioning of the courts are immune from
constitutional scrutiny. Nor does it mean the lower courts have,
or are entitled to have their independence protected in the same way
as the higher courts.”

In
paragraphs 24 and 25 it was pointed out –

“But magistrates
courts are courts of first instance and their judgments are subject
to appeal and review. Thus higher courts have the ability not only
to protect the lower courts against interference with their
independence, but also to supervise the manner in which they
discharge their functions. These are objective controls that are
relevant to the institutional independence of the lower courts.

[25] Another
relevant factor is that district and regional magistrates’ courts
do not have jurisdiction to deal with administrative reviews or
constitutional matters where the legislation or conduct of the
government is disputed. These are the most sensitive areas of
tension between the legislature, the executive and the judiciary.
Measures considered appropriate and necessary to protect the
institutional independence of courts dealing with

such matters, are
not necessarily essential to protect the independence of courts that
do not perform such functions.”

And
in paragraph 28 the learned Judge expressed himself as follows:

”…The
jurisdiction of the magistrates’ courts is less extensive than that
of the higher courts. Unlike higher courts they have no inherent
power, their jurisdiction is determined by legislation and they have
less extensive constitutional jurisdiction. The Constitution also
distinguishes between the way judges are to be appointed and the way
magistrates are to be appointed. Judges are appointed on the advice
of the Judicial Service Commission; their salaries, allowances and
benefits may not be reduced; and the circumstances in which they may
be removed from office are prescribed. In the case of magistrates,
there are no comparable provisions in the Constitution itself, nor is
there any requirement that an independent commission be appointed to
mediate actions taken in regard to such matters. That said,
magistrates are entitled to the protection necessary for judicial
independence, even if not in the same form as higher courts.” (
underlinings are mine)

Having
thus quoted from the Van Rooyen judgment, Strydom CJ concluded as
follows (at p34):

“From the
extracts out of the van Rooyen- case it seems clear
that all courts are entitled, in terms of the particular
Constitution, to the protection of their institutional independence
but, depending on the nature of their jurisdiction and the
hierarchical differences between the higher courts and the lower
courts, this protection need not be in the same form. Coming to the
situation in Namibia it seems to me that we have the same
hierarchical differences between our higher and lower courts which is
dealt with in much the same by our Constitution, as is the case in
South Africa. It follows therefore that I am of the opinion that
also in Namibia the protection of the institutional independence of
the lower courts need not be in the same form as that necessary for
the High and Supreme

Courts and I
say so for the reasons set out in the van Rooyen case-, supra.
(my underlining for emphasis)

In
the Canadian case The Queen in Right of Canada v Beauregard (1986)
30 DLR (4^th) 481 at 491 (SCC), Dickson CJC, speaking
of judicial independence, said:

‘Historically,
the generally accepted core of the principle of judicial independence
has been the complete liberty of the of individual judges to hear and
decide the cases that come before them: no outsider- be it
government, pressure group, individual or even another Judge should
interfere in fact, or attempt to interfere, with the way in which a
Judge conducts his or her case and makes his or her decision. This
core continues to be central to the principle of judicial
independence’.

In
Valente v The Queen (1986) 24 DLR (4^th) 161 (SCC)
the Canadian Supreme Court held that:

“(i)t
would not be feasible , however, to apply the most rigorous and
elaborate conditions of judicial independence to the constitutional
requirement of independence in s 11 (d) of the Charter , which may
have to be applied to a variety of tribunals. The legislative and
constitutional provisions in Canada governing matters which bear on
the judicial independence of tribunals trying persons charged with an
offence exhibit a great range and variety. The essential conditions
of independence for purposes of s 11 (d) must bear some relationship
to that variety”.

The
above dicta were cited with approval by Ackerman J in De Lange v
Smuts NO and Others 1998 (3) SA 785at 813-814 (CC). In Van
Rooyen, supra, (at 270 J para 27) Chaskalson CJ said;

“I
am not persuaded that any reason exists to qualify the approval given
to the passages from Valente by Ackerman J in De Lange v Smuts.
Judicial independence can be achieved in a variety of ways; the most
rigorous and elaborate conditions of judicial independence’ need
not be applied to all courts, and it is permissible for the essential
conditions for independence to bear some relationship to the variety
of courts that exist within the judicial system”.

Decisions
of the Supreme Court of Namibia are binding on this Court and all
those below it by virtue of Article 81 of the Namibian Constitution.
Sitting as the High Court we are bound by and must therefore apply
the ratio in the Supreme Court judgment; and it is this: all
courts are guaranteed institutional independence, but Lower Courts
(magistrates courts included) do not have to enjoy the same kind of
rigorous protection given to the higher courts. What is also clear
from the passages in the van Rooyen judgment, cited with approval by
Strydom CJ, is that in South Africa the institutional independence of
the magistracy does not require an independent body to regulate its
affairs.

In
Van Rooyen the learned Chief Justice Chaskalson laid down that
the test for measuring the institutional independence of the Courts ,
including the magistracy, is an objective one, a test, as he put it,
which is appropriate for both ‘ independence as well as
impartiality’ ; and it is this:

’The question 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, that
is a mind open to persuasion by the evidence and the submissions of
counsel’’. Relying on the American case of US v Jordan
49 F 3d 152 (5^th Cir 1995) at 156, the learned Chief
Justice continued: ‘’The perception that is relevant
for such purposes is, however, a perception based on a balanced view
of all the material information. As a United States court has said, ‘
we ask how things appear to the well- informed , thoughtful and
objective observer, rather than the hypersensitive, cynical, and
suspicious person’’.

Bearing in mind
the diversity of our society this cautionary injunction is of
particular importance in assessing institutional independence. The
well-informed, thoughtful and objective observer must be sensitive to
the country’s complex social realities, in touch with its evolving
patterns of constitutional development, and guided by the
Constitution, its values and the differentiation it makes between
different levels of courts. Professor Tribe’s comment on the
separation of powers, already cited with approval by this Court,
seems especially relevant in this regard:

‘What counts is
not any abstract theory of separation of powers, but the actual
separation of powers ‘’ operationally defined by the
Constitution’’. Therefore, where constitutional text is
informative with respect to a separation of powers issue, it is
important not to leap over that text in favour of abstract principles
that one might wish to see embodied in our regime of separated powers
, but that might not in fact have found their way into our
Constitution’s structure’. This comment seems to be particularly
appropriate when considering what the objective observer might
conclude about the independence of the magistracy’’.

Taking
into account the complex social reality of South Africa , the need to
look at the Constitution itself to see how separation of power is
‘actually’ constructed and not leap to abstract principles one
might wish to have embodied in the Constitution , is what Chaskalson
CJ refers to as the ‘’ properly contextualized objective
test’’ ( Van Rooyen, para 35 at 273 F ) for assessing
compliance with institutional judicial independence: and that, it
seems to me, is what Strydom CJ had in mind when he said that he
relies on the reasons given in Van Rooyen for coming to the
conclusion that although institutional judicial independence is
guaranteed to all courts , the scheme adopted for effecting it may
differ depending on which court we are looking at and that only in
respect of the High and Supreme Courts is a more rigorous standard
required.

Guided
by this approach, I now turn to a consideration of the issues raised
in these proceedings. I need to mention at the outset that the
requirement of institutional independence of the Judiciary is not
subject to any limitation and, therefore, there can be no
‘justification’, in the constitutional sense, for interference or
abridgement of the independence of the Judiciary. (See: Van Rooyen
para 35 at 273 H.) Therefore, if I find that the impugned provision
is in conflict with the independence of the magistracy , it must give
way as nothing can save it.

The
thrust of Mr. Botes’ argument can be summed up as follows: the way
the Commission is composed, in particular, the fact that the Minister
(a political officer bearer) appoints three members of the
Commission places the Commission under the control of the Minister
and therefore the Commission is not an independent body. The
argument then continues thus in paragraph 20 of the written heads of
argument:

“If one reads
Section 4(f) of the Act together with Section 5 (the constitution of
the Commission), it is clear that the control that the Permanent
Secretary previously had over Magistrates, in terms of the Public
Service Act, is only substituted with the direct control of the
Minister of Justice himself. It is evident from the sections that;
-

1. The
   Commission can only make recommendations to the Minister with
   regard to the suitability of candidates for appointment as
   Magistrates, the qualifications that Magistrates must comply with,
   the condition of service of Magistrates, including their
   remuneration and retirement benefits. The final say in the
   dismissal and retirement of magistrates also rest with the
   Minister, the argument continues.

   
   

2. The
   Minister not only has the final say in the above matters, but he
   also controls the Commission that must make the recommendations to
   him. Not only does he have a direct say in the appointment of 3
   members of the Commission of seven members, but 3 of the other
   members are also Public Servants. Only the Chairman is appointed
   by the Judge-President. As a result of the constitution of the
   Magistrates’ Commission in this matter an independent body to
   establish and uphold an independent Magistracy was not created and
   established. Section 5 of the Act therefore is null and void as it
   does not pass constitutional muster.”

   
   

Mr.
Botes then goes on to argue that the Act, in its present form, and
more specifically due to the content of ss 4(1)(f) and 5 thereof,
make a mockery of the principle of separation of powers and therefore
the independence of the Judiciary. Mr. Botes goes on to say that the
Act is not in its entirety inconsistent with the core values of
judicial independence but that the problem lies with s 4(1)(f) and s
5 of the Act – which sections it is said - undermine the
independence of magistrates. He argues that the inconsistency is
compounded by the fact that no Regulations have been promulgated to
provide for guidelines and procedures in terms of which the transfer
of magistrates is regulated. The only applicable Regulation
presently, he says, is Regulation 2 which requires any vacancy in the
magistracy to be advertised.

In
oral argument Mr. Botes continued the attack in much the same way as
in the written heads of argument. He persisted that of the 7 members
of the Commission six (6) are public servants and that the
Commission is not a body independent of the Executive. He submitted
that the lack of independence is clear when one compares the
Commission with the Judicial Service Commission created by Article 85
of the Constitution^³.
He argued that the influence of the Minister on the Commission is too
severe and that the there is a complete failure of a minimum and
effective system of checks and balances in the appointment process of
Commission members.

Mr.
Hinda, on the other hand, submitted that the Supreme Court judgment
could not have laid down requirements for an independent Commission
as the first Mostert case was concerned with the review of the
decision of the Permanent Secretary to transfer Mostert in terms of s
23 of the Public Service Act. The case also dealt with the
independence of the Judiciary, Mr. Hinda conceded. Mr. Hinda seems to
be suggesting that the independence of the Judiciary is not
necessarily the same thing as creating an independent Magistrates
Commission as it is not a Tribunal such as is contemplated in article
78 (2). Mr. Hinda also submitted that s 4(1)(f) is not challenged by
the plaintiffs in their particulars of claim and cannot be declared
unconstitutional by this Court. He strenuously argued that there is
no basis for the conclusion that the Magistrate' Commission is under
the control of the Minister.

I
will consider each of Mr. Botes’ arguments and the counter
arguments, but I first need to repeat, and break up the constituent
parts of s 5 for it is this provision that is the central focus of
the dispute between the parties to these proceedings. In terms of s 5
of the Act the Commission consists of 7 members: the Judge designated
by the Judge President is the chairperson of the Commission. The
Chief: Lower Courts is an ex officio member, and there is an
additional person appointed by the Public Service Commission.
Provision is made for two direct appointments by the Minister, being
a staff member of the Ministry designated by the Minister of Justice,
and a suitable person designated by the Attorney General (who is also
the Minister of Justice⁴).
The Minister is then given further power to select one person from
a list of three persons nominated by the Judges’ and Magistrates’
Association, and another person from a list of two persons nominated
by the Vice Chancellor of the University of Namibia.

Based
on the plaintiffs’ submissions, it seems they do not have any
problem with the presence on the Commission of a Judge designated by
the Judge President. With the remainder of the Commission members
they have a problem of one or other kind, as I have shown above. It
is to that I now turn.

1. does
   the minister appoint 3 members of the Commission ?

   
   

The
first point taken by Mr. Botes that the Minister appoints 3 members
of the Commission is not correct. The Minister appoints only 2
persons independently , one of whom does not have to be a civil
servant but has to be a ‘suitable person’. In my view, the fact
that an appointment of a person on the Commission is made by a
political office bearer does not necessarily negate the independence
of the Commission.

2. does
   s 4(1)(f) create direct control by the minister, or give her final
   say in appointment of magistrates?

   
   

Section 4(1)(f) of the Act is
not sought to be set aside. I agree with Mr Hinda that its
unconstitutionality is not the case that the defendants, in claim 1
of the pleadings, have been called upon to meet. The argument thereon
seems to be intended to strengthen the case for the
unconstitutionality of s 5 in that the power given to the Minister
under s 4(1) (f) becomes unbridled if the Commission is also under
the Minister’s control. I must point out that the power of the
Minister to appoint is not contained in s 4(1) (f) but in s 13 of the
Act. Section 4(1) (f) provides for the power of the Commission to
recommend appointments to the Minister. Section 13 provides as
follows:

“13. Appointment
of magistrates on permanent establishment

(1) The Minister
may, on the recommendation of the Commission but subject to
subsection (2), appoint as many magistrates as there are posts on the
permanent establishment of the magistracy.

(2) No person may
be appointed under subsection (1) as a magistrate unless such person-

(a) is either-

(i) a Namibian
citizen; or

(ii) a
permanent resident of Namibia; or

3. an
   employee in the Public Service;

   
   

2. is
   qualified to be so appointed in terms of section 14; and

   
   

3. is
   certified by the Commission to be in all respects suitable for
   appointment as a magistrate.

   
   

(3) The
appointment of every magistrate must be effected on such contract of
employment, not being inconsistent with this Act, as the Minister may
approve on the recommendation of the Commission.”

Mr. Botes suggests that the
Minister has absolute power whether or not to act on the
recommendation of the Commission in respect of appointments. I think
that is not correct. Apart from the fact that it cannot be used to
undermine the independence of the magistracy, the exercise of the
Minister’s s 13 power, in my view, is subject to Article 18 of the
Namibian Constitution and susceptible of constitutional scrutiny
and, therefore, of curial challenge.

In the words of Chaskalson CJ
in Van Rooyen (para 37 at 274 F):

‘Any power
vested in a functionary by the law (or indeed by the Constitution
itself) is capable of being abused. That possibility has no bearing
on the constitutionality of the law concerned. The exercise of the
power is subject to constitutional control and should the power be
abused the remedy lies there and not in invalidating the empowering
statute.”

It also needs to be mentioned
that the locus of the power to appoint is usually a matter of
political choice which does not necessarily detract from the
independence of those being appointed. Judges are appointed by the
President on the recommendation of the Judicial Service Commission.
The President is the Head of State and Government, wielding enormous
power and influence not comparable to that of a Minister. 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. (See generally the
First Certification Judgment: Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996 (4) SA 744
(CC) (1996) (10) BCL 1253, para 124; and also Van Rooyen, para
59 at 281 A-B).

3. are
   3 Commission members public servants ?

   
   

True,
Chief: Lower Courts is a public servant under the current
arrangements. The law then allows the Minister to appoint another
person to the Commission from the Ministry of Justice. The other
person to be appointed by the Minister is a ‘suitable person’.
It is wrong, as I said earlier, to conclude that that person is a
public servant. We do not need to decide whether, considering the
rest of the membership of the Commission, a public servant is a
‘suitable person’ in terms of the section. The issue is
not raised in the pleadings. It is incorrect to argue therefore that
3 members of the Commission are, by law, public servants. The law has
no such requirement. Only 2 members are by law public servants.
Whether in fact 3 members of the Commission are public
servants and what the effect of that is, is not part of the
plaintiffs’ case and an issue we are not now called upon to decide.
(We have been asked to decide a legal question and not a factual
one.) The other member of the Commission is a person nominated by the
Public Service Commission. Again, the law does not say that person
has to be a public servant.

d) ministers’ choice
from nominees by judges and magistrates association and the vice
chancellor: objectionable?

I
understand it to be the plaintiffs’ case that the fact that the
Minister makes a choice from a list submitted to the Minister by the
Judges and Magistrates Association , and the Vice Chancellor,
creates the perception that the Minister has control over those
persons when they sit as Commissioners. The underlying assumption in
the submission on behalf of the plaintiffs is that as soon as the
Minister has made the choice of one person from a list submitted the
Minister , the person chosen becomes a stooge of the minister ready
to do the Minister’s bidding on the Commission. Now, in my view,
nothing could be further from the truth. As Chaskalson CJ said in Van
Rooyen when a similar point was made (para 47 at 227):

“’The
language in which these conclusions of the High Court are expressed
is unfortunate. The findings imply that Parliament changed the
composition of the Magistrates’ Commission to give the Legislature
and Executive control over the Magistrates Commission so as to enable
the Minister to manipulate the Commission and the magistracy.
Implicit in these findings is also the unjustifiable innuendo that
the persons appointed to the Commission pursuant to this scheme would
be seen to be willing to do the bidding of the Minister. This is a
recurring theme of the judgment which is ill-considered and not
sustainable on a proper analysis of all the relevant circumstances.’’

He
continued (para 47 at 284):

‘’The
other members of the Commission are also responsible members of the
community, including members of opposition political parties. There
is no reason to believe that the members of the Commission will not
discharge these and their other duties with integrity, or that viewed
objectively there is any reason to fear that they will not do so.”
(my underlining for emphasis)

The
Minister has no say which persons are nominated by those tasked with
the duty of making nominations. If the minister interferes with the
nominations of either the Judges and Magistrates’ Commission, or
the Vice Chancellor, that conduct will be subject to judicial review.
That the Judges’ and Magistrates’ Association and the Vice
Chancellor will choose individuals who are competent and of integrity
must be assumed in the absence of any allegation, let alone proof ,
that they will not. The nominees are to be chosen by those tasked to
do so from a pool, one must assume, which they feel comfortable to
draw from. The list is not provided to them by the Minister. It
would be impermissible for the Minister , to do so. They can come
up with a short-list, using procedures open to them to assist them
carry out their statutory duty, of persons any one of whom, in
their judgment, can be chosen to sit on the Commission.

The
undeniable ‘complex social reality’ of Namibian society is
that there was no equal opportunity of access to education. Race
determined one’s prospects of advancement on the social ladder, as
did gender. Happily, enormous strides have been made since
independence to bring about transformation in the Judiciary and
people from different races are now well–represented in the
magistracy. The same cannot be said about gender representation. A
lot still needs to be done in that respect. The stark reality remains
that because not too many Namibians had access to university
education prior to independence, there are bound to be fewer
Namibians, as law lecturers, in institutions such as the Law Faculty
of the University from which one of the candidates to the Commission
must be drawn. If they are there they may be less qualified than
their foreign counterparts. When the Vice – Chancellor makes his
nominations he may do so giving consideration to providing a list
from which the Minister may choose one person to advance any of the
criteria aimed at redressing past- discriminatory practices. The
same goes for the Judges’ and Magistrates Commission. Those
required to make nominations do so independently of each other. They
may not necessarily know what the balance is on the Commission. Who
better than the Minister to have regard to such considerations as
ensuring proper balance on the Commission by looking at the
designation and appointment already made , and using the nominations
received , if the possibility exists, to choose persons from those
nominations to achieve some form of representativeness of the
Commission? The Minister may wish to achieve racial balance; or want
to achieve gender or ethnic balance by choosing from nominees chosen
by an independent body, and an independent person. That would not be
out of kilter with Namibia’s complex social reality and would be
unrelated to any desire on the Minister’s part to manipulate the
Commission. A well informed, thoughtful observer (not a cynical or
suspicious one) knowledgeable about the Namibian society will
appreciate the argument why the Legislature chose to empower the
Minister to choose a person from a short-list submitted by the Judges
and Magistrates Association, and the Vice Chancellor in order to seek
to redress the need for representativity on the Commission. Such an
interpretation of why the power is given is reasonable in view of
Namibia’s history.

The
objection that the individuals chosen by the Minister from the
short-lists are, or create the impression of being, under the control
of the Minister is ill-considered and must therefore fail.

e)
the public service commission’s appointee: objectionable?

The
Public Service Commission is a body envisaged by Article 112 of
Constitution of Namibia , which states:

“(1) There
shall be established a Public Service Commission …

2. The
   public Service Commission shall be independent and act
   impartially …” (my underlining for emphasis)

   
   

The
Public Service Commission is one of the few bodies and functionaries
in the Constitution specifically given the mantle of ‘independence’
and ‘impartiality’. How any person nominated by the Public
Service Commission can be described as being under the control of the
Minister is not clear to me. There is no allegation in the pleadings
that there is in existence legislation affecting the Public
Service Commission which , contrary to Article 112 of the
Constitution, compromises the independence of the Public Service
Commission created by the Constitution , and therefore makes the
person appointed by the Public Service Commission to the Commission a
mere instrument of the Minister for that reason. It must be assumed,
therefore, that the Public Service Commission is a body which acts
independently of the government of the day and that the fact that it
appoints a member of the Commission does not detract from the
independence of the Commission or indeed that of the magistracy.

INDEPENDENCE
OF MAGISTRATES vs INDEPENDENT COMMISSION

Mr.
Botes’ recurrent theme is that an independent Magistrate’s
Commission is a prerequisite for an independent magistracy. As I said
before, the plaintiff’s deny that; by which I understand them to
mean that we do not need to have an independent Magistrate’s
Commission in order to have an independent magistracy. As I have
shown in the extracts from the Van Rooyen judgment, in the
South African context, the Final Constitution of South Africa
did not decree an independent Magistrate’s Commission and since
that was not a requirement in terms of the Constitutional
Principles which had to be satisfied for the Final
Constitution to be valid, the absence in that Constitution of the
requirement of an independent Magistrates Commission was found not to
be inconsistent with those Principles. To echo the words of
Chaskalson CJ in Van Rooyen (para 66 at 283 A-C)⁵:

“ The Court held
[ in the First Certification Judgment] that as far magistrates are
concerned , the guarantee of independence accorded to all courts by s
165 of the Constitution and the provisions of s 174(7) dealing
specifically with magistrates , was sufficient guarantee of
independence.’’

Likewise,
the Namibian Constitution does not have any requirement for an
independent Magistrates Commission. All it says is that magistrates
shall be appointed in accordance with procedures prescribed by an Act
of Parliament. The Supreme Court judgment does not, and could not,
require the creation of a Magistrate’s Commission or a similar
body; even less an independent one for that matter. The creation of
such a Commission is thus a matter of political choice as long as it
does not negate the independence of the magistracy. Applying, as I
should, the properly contextualized objective test of
institutional independence of the Judiciary, I come to the
conclusion that the independence of the Namibian magistracy is
sufficiently guaranteed by the following:

i)
Article 78 (2) and (3)⁶
of the Constitution;

ii)
Article 83⁷
of the Constitution, since interpreted in the Supreme Court judgment
to mean that the magistracy must be placed outside the public
service;

iii)
Constitutional scrutiny by the Superior Courts of any legislation and
administrative action bearing on such matters as the appointment,
remuneration, transfer and discipline of magistrates.

What
counts is not any abstract theory of separation of powers, but the
actual separation of powers ‘operationally defined’ by the
Namibian Constitution.

I
am not persuaded, having regard to the text of the Namibian
Constitution, that an independent Commission is required. Even if I
am wrong in that, and the Supreme Court judgment in fact a) required
the establishment of a body known as a Magistrates Commission or a
similar body, and b) an independent Magistrate’s Commission or
body, the plaintiffs have failed to establish that the statutory
scheme of the Act fails to create an independent Magistrate’s
Commission. The Act places the magistracy outside the Public Service
as required by the Supreme Court judgment and also reasserts the
independence of the magistracy in very unequivocal language in ss 3
(a),(b) and (d), 4 (2) (b), 4(1)(f), and4 (4), supra . The
Commission is composed of 7 members, chaired by a Judge. An
independent Public Service Commission appoints one member. Although
the act of appointment is made by a political office bearer, two of
the other members of the Commission are persons nominated by a body
and a person who are independent of the Executive. Thus 4 out of 7
members of the Commission are, by law, independent persons. A
well-informed, thoughtful and `objective observer, rather than the
hypersensitive, cynical, and suspicious one, will not come to the
conclusion that the Act, in view of the composition of the
Commission, negates an independent magistracy in Namibia.

In
the premises:

Claim
1 (one) of the plaintiffs particulars of claim is dismissed with
costs, including the costs of one instructing and one instructed
Counsel.

____________________

DAMASEB,
JP

I
agree

____________________

ANGULA,
AJ

ON
BEHALF OF THE FIRST AND SECOND PLAINTIFFS: Mr. LC Botes

Instructed
By: Grobler & Co.

ON
BEHALF OF THE FIRST AND SECOND DEFEDANTS: Mr. G. S. Hinda

Instructed
By: Government Attorney