NOT REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: I 739/2012
In the matter between:
THE GOVERNMENT OF THE
REPUBLIC OF NAMIBIA
.....................................................PLAINTIFF/RESPONDENT
(MINISTER OF SAFETY
AND SECURITY)
and
ISAI IPINGE
...........................................................................DEFENDANT/APPLICANT
Neutral citation: The
Government of the Republic of Namibia (Minister of Safety and
Security) v Ipinge (I 739-2012) [2013] NAHCMD 303 (29 October
2013)
Coram: UNENGU, AJ
Heard: 20, 22
March; 22 May and 8 July 2013
Delivered: 29
October 2013
Flynote:
Applications and motions – application for recusal –
Applicant failed to prove requirements of reasonableness –
application dismissed.
Summary: The
applicant through his legal representative applied for my recusal as
the presiding judge, contending that a reasonable apprehension of
bias does exists due to the fact that I have attended management
meetings with Chiefs of directorates in the Ministry of Justice
including Government Attorneys, then, whose office is representing
the plaintiff in the matter. Application dismissed with costs as
applicant failed to prove requirements of reasonableness.
___________________________________________________________________
ORDER
___________________________________________________________________
The application is
dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
UNENGU AJ:
[1] Through his legal
representative, the applicant has applied for my recusal from further
adjudicating on his matter.
[2] On resumption of the
trial of this matter on 8 July 2013, Mr Ipumbu, who is the legal
representative for the applicant launched an application for my
recusal with costs, supported by an affidavit deposed to by himself
in his capacity as the applicant’s legal representative.
[3] He states the
reason(s) for my recusal in paragraph 3 of the affidavit as follows:
‘I confirm
that I was employed at the Ministry of Justice in the capacity as a
Deputy Coordinator of the SADC Legal Sector Coordinating Unit
effective from 1 August 2000 until 31 August 2006. At that time, it
was a custom that the heads of various Directorate (sic) in the
Ministry of Justice attend monthly management meetings. I confirm
that, during that material time, Honourable Acting Justice Unengu,
was Chief: Lower Courts. By virtue of his former position, he used to
attend monthly management meetings together with other heads of the
Directorates, inter
alia,
Government Attorney, Chief of Legal Advice and Co-ordinator of the
SADC Legal Sector Coordinating Unit. I further confirm that I also
used to stand in for my Co-ordinator at the Management meetings of
the Ministry of Justice whenever she was not available.’
[4] Mr Ipumbu continues
as follows in paragraph 4 of his affidavit: ‘I confirm that the
Honourable Acting Justice Unengu, by virtue of his previous position,
as Chief of Lower Courts had a long standing working relationships
with the Ministry of Justice under which the Directorate of Civil
Litigation (Office of the Government Attorney) falls. In
casu, the plaintiff in the main case is the
Government of the Republic of Namibia which is represented by the
Office of the Government Attorney, whereby the former government
attorneys to wit: Adv Ernstine Vicky ya Toivo, Ray Goba used to
attend the Management meetings with Acting Justice Unengu’.
[5] It is clear from the
above allegations as stated in his affidavit that Mr Ipumbu is
relying on my relationship with the Ministry of Justice then as
Chief: Lower Courts, for my recusal.
[6] In addition to the
above-mentioned allegations, he also, in paragraph 8 of the affidavit
alleges that I dismissed the application for absolution from the
instance in the matter, despite the fact that the respondent did not
prove its case.
[7] Briefly the
background of the matter is stated here-under. The respondent has
sued the applicant, Mr Isai Ipinge, a former police officer in the
employment of the Ministry of Safety and Security for an amount of
N$48 196.82 which money was erroneously paid to him as monthly
remunerations for the period January 2005 until June 2010 which
period the applicant did not work for the respondent as he was
already dismissed from work in December 2004 due to absence from work
for a period exceeding 30 days.
[8] The respondent,
during the trial, called and led evidence of two witnesses, the
Commander of the Unit where the applicant was attached and secondly,
the immediate supervisor of the applicant who worked with him on
shifts of Unit B.
[9] After the
respondent’s case, Mr Ipumbu applied for absolution from the
instance – which application I dismissed with costs and
indicated that my reasons for the dismissal of the application will
be included in the main judgment at the end of the trial. This
happened on the 20th of
March 2013. Thereafter, the matter was postponed until 22 March 2013
at 10h00 for the applicant’s case, because the 21st
of March was a public holiday.
[10] On 22 March 2013
when the matter was called, but before Mr Ipumbu could call the
applicant to testify, Ms Fredericks, counsel for the respondent
informed the Court that she intended to file an application to
re-open the respondent’s case. After a few deliberations and
addresses from both sides, I granted a postponement in favour of the
applicant for counsel to acquaint himself with the contents of the
application for the re-opening of the respondent’s case, until
July 2013 at 10h00.
[11] I must mention also
that, was it not for the application to re-open the respondent’s
case, Mr Ipumbu was ready to proceed with his client’s case. On
page 62 of the record in paragraphs 10 to 20 thereof, Mr Ipumbu
addressed the Court as follows:
‘Yes My lord.
My Lord I still confirm my appearance on behalf of the defendant in
this matter and we are ready to proceed with the defendant’s
case. However, there is this Application. My Lord as His Lordship may
see, this document before here is dated today, 22nd
March 2013. It was filed at 10:00, now it is just 10:10. I just got
it 3 minutes ago, I did not even read it. I do not know the content
of it. I cannot even speculate the content of it’.
[12] The only problem Mr
Ipumbu had on the 22nd
of March 2013 is the
short notice of the application for the re-opening of the
respondent’s case. He wanted sufficient time to read the
application and possibly to prepare himself to address the Court
properly with regard the application. He did not know the contents of
the application – it was filed the same day at 10h00 when the
Court resumed, therefore, he needed more time to prepare himself for
the application. The Court granted a postponement with costs in
favour of the applicant, because I was of the view that it was just
and fair under the circumstances to do so as it was not his fault
that the trial could not proceed.
[13] However, before 8
July 2013, the day for the hearing of the application to re-open the
case for the respondent, Mr Ipumbu filed this application for my
recusal on the grounds stated above.
[14] Smuts, J, set
out and extensively dealt
with the law applicable to recusal applications in his judgment,
which I agree with and in my view also applicable to the present
application. He quotes from a South African Constitutional Court
case
where the following
principles were summarised. ‘The apprehension of bias may arise
either from the association or interest that the judicial officer has
in one of the litigants before the Court or from the interest that
the judicial officer has in the outcome of the case. Or it may arise
from the conduct or utterances by a judicial officer prior to or
during proceedings. On all these situations, the judicial officer
must ordinarily recuse himself or herself. The apprehension of bias
principle reflects the fundamental principal of our Constitution that
Courts must be independent and impartial. And fundamental to our
judicial system is that our courts must not only be independent and
impartial, but they must be seen to be independent and impartial. The
test for recusal which this Court has adopted is whether there is
a reasonable apprehension of bias in the mind of a reasonable
litigant in possession of all relevant facts,
that a judicial officer might not bring an impartial and unprejudiced
mind to bear on the resolution of the dispute before the Court’.
(Emphasis added)
[15] In his judgment,
Smuts, J also referred to the decision in SARFU
and Others v President of the South Africa and Others
where it was said:
‘It follows
from the foregoing that the correct approach to this application for
the recusal of members of this Court is objective and the onus of
establishing it rests upon the applicant. 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 submission of
counsel. The reasonableness of the apprehension must be assessed in
the light of the oath of office taken by the Judges to administer
justice without fear or favour; and their ability to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any irrelevant personal beliefs
or predispositions. They must take into account the fact that they
have a duty to sit in any case in which they are not obliged to
recuse themselves. At the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite for a fair trial and
a judicial officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part of a litigant for
apprehending that the judicial officers, for whatever reasons, was
not or will not be impartial’.
[16] The SARFU
matter
above, was also referred to by Mr Ipumbu in his submission for the
recusal, but, before making reference to the SARFU
matter,
he also quoted from the matter of Council
of Review, SADF and others v Mönning and Others.
[17] Following the
Mönning
decision, counsel
contended that the right of recusal is derived from a number of rules
of natural justice designed to ensure that a person before court
whether civil or criminal should have a fair hearing. However,
counsel left out an important part of the decision that a person
should not be tried by a court concerning which there are reasonable
suspicions of bias.
(Emphasis added)
[18] Again, Mr Ipumbu
correctly submitted that the test for recusal is objective and that
the onus
of
establishing that the judge has not or will not bring and impartial
mind to bear on the adjudication of the case, rests on the applicant.
In the Bernerts’
case
above, it is stated that the test for recusal is whether there is a
reasonable apprehension of bias, in the mind of a reasonable litigant
in possession of all the relevant facts, that a judicial officer
might not bring an impartial and unprejudiced mind to bear on the
resolution of the dispute before the court.
[19] There is also a
presumption of judicial impartiality which is not easily discharged,
but requires cogent or convincing evidence to be rebutted by the
applicant for recusal. The applicant, according to the Januarie
v Registrar of the High Court and others matter,
in paragraph 16 of the judgment, Smuts, J quoting from the Bernet
case said, that the
double unreasonableness requirement also highlights the fact that
mere apprehensiveness on the part of a litigant that a Judge will be,
even a strongly and felt anxiety – is not enough. The quotation
further states that the court must carefully scrutinise the
apprehension to determine whether it is to be regarded as reasonable.
[20] Considering the
authorities referred to above, I am of the view that the applicant
did not establish his apprehension of bias he is holding, to have met
the legal standards of reasonableness expected of a reasonable
litigant. This is born out of the fact that when the trial of this
matter started, Mr Ipumbu was aware that I used to attend management
meetings with Chiefs of different directorates in the Ministry of
Justice before 2006, but did not raise any objection for me presiding
over the matter. That, despite the fact that he had all the relevant
facts in his possession. He also did not apply for my recusal already
at the start of the trial of the matter – but waited until the
respondents’ case was closed, after hearing evidence of two
witnesses called by the respondent.
[21] After the
respondent’s case, Mr Ipumbu, on behalf of his client applied
for absolution from the instance which was refused. Still Mr Ipumbu
was quiet. He did not mention or suggested any possibility of
applying for my recusal based on the ground that I have attended
management meetings of the Ministry of Justice with Mrs Vicky ya
Toivo and Mr Ray Goba who were at the time the Government Attorney
and Acting Government Attorney respectively.
[22] The ruling on the
application for absolution was made on the 20th
of March 2013 when the
matter was postponed until 22 March 2013 to continue with the
applicant’s case. On 22 March 2013, the trial did not go ahead
due to the fact that the respondent launched an application to
re-open its case. The matter was as a result postponed to the 22nd
of May 2013 to afford Mr
Ipumbu the opportunity to read the affidavit of the respondent and to
prepare himself for the application. It is only on this day when Mr
Ipumbu decided to apply for my recusal, even though on 22 March 2013
he had indicated to the Court (on page 62) that they were ready to
proceed with the applicant’s case. Further, it would seem that
Mr Ipumbu either deliberately or through ignorance failed to disclose
the fact that my position has changed from the Chief: Lower Court to
Chief Magistrate years ago through an amendment to the Magistrate’s
Act
making me a judicial
officer.
[23] There is further no
explanation given by Mr Ipumbu in his founding affidavit why he had
waited until almost at the end of the trial to apply for the recusal
while he had in his possession all the relevant information about my
attendance of the so-called management meetings of the Ministry of
Justice in my capacity as Chief: Lower Courts, almost seven (7) years
ago. I do not think that the alleged apprehension of bias is
reasonable and reasonably held by Mr Ipumbu to satisfy the
requirements of this type of application as is illustrated in the
authorities referred to above. Therefore, and for the aforesaid
reason, I find that the applicant failed to discharge the onus
resting on him on a balance of probabilities with regard the
reasonableness of his apprehension of bias. His apprehension of bias
under the circumstances of this matter is not reasonable and not
reasonably held, and therefore the application is dismissed with
costs.
______________________
PE Unengu
Acting
APPEARANCE:
For the applicant: Mr T
Ipumbu
of Titus Ipumbu Legal
Practitioners
For the respondent: Ms L
Fredericks
of Government Attorneys
The Government of the Republic of Namibia (Minister of Safety and Security) v Ipinge (I 739/2012) [2013] NAHCMD 303 (29 October 2013);