1

REPORTABLE

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA,MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 11/2010

In the matter between:

TECKLA NANDJILA LAMECK1ST APPLICANT

YAN FAN2ND APPLICANT

JEROBEAM KONGO MOKAXWA3RD APPLICANT

and

THE STATERESPONDENT

Neutral citation: Lameck v The State(CC 11/2010) [2014] NAHCMD347(14 November 2014)

Coram:CHEDA J

Heard:24 August 2014

Delivered:14 November 2014

Flynote:Recusal test is the reasonableness of the applicant(s) of the apprehension of bias. Apprehension must be on the basis of the true facts. Recusal on the basis of a perceived error of one aspect of evidence in the middle of a host of charges cannot justify recusal and vitiation of the whole proceedings. Irregularity is cured by a review procedure. In determining recusal the Judicial Officer should bear in mind the legal obligation to preside over a case – bear in mind that a Judge is trained to be impartial – that the presumption of innocence operates in favour of an accused person throughout the trial. A Judicial Officer should always be ready to be persuaded otherwise during the course of the trial. – a litigant has a burden of dislodging these presumptions.

Summary:Applicant applied for recusal on the basis of – alleged bias on the part of the court is that it had dealt with an issue of warrants which had not been argued. The issue which had come before the court was that of summons.

The test for recusal is that of the reasonableness of the applicant and that of the perception of bias by the Judicial Officer. Applicants failed to prove that there were reasonable in and that their apprehension of bias was also reasonable. The application was dismissed.

ORDER

  1. The application is dismissed.

JUDGMENT

CHEDA J:

[1]On the 20 August 2014 applicantslodged an application for my recusal on the basis of my judgment delivered on the 25 June 2014 which judgement they perceive to have ushered in an element of bias against them on my part.

[2]The genesis and historical background of this case appears hereinunder. Applicants were arrested and arraigned before this court facing various charges, which for convenience it is not necessary to enumerate as they are fully detailed in the indictment in the main record. They pleaded not guilty to all the charges, thereby necessitating a full trial and the said trial is still in progress. The matter is at the state case stage and the state has to date, led evidence from about 20 out of the estimated 80 plus witnesses.

[3]During the trial, the defence expressed an intention to challenge the state’s attempt to rely on any evidence obtained pursuant to certain search and seizure warrants issued by the Windhoek Magistrate, purportedly under s 22 (4) of the Anti-Corruption Commission Act, Act 8 of 2003 [hereinafter referred to as the Act”] infact the said notice of objection states:

“NOTICE OF OBJECTION IN RELATION TO ANY EVIDENCE THAT THE STATE MAY WISH TO TENDER AND WHICH EVIDENCE MAY HAVE BEEN OBTAINED THROUGH SEARCHES AT DIFFERENT PREMISES ON THE BASIS OF PURPORTED WARRANT OF A SEARCH AND SEIZURE ATTACHED HERETO ISSUED BY THE WINDHOEK MAGISTRATE ON 29 JUNE 2009

Kindly take notice that in addition to the fact that the agents of the Anti-Corruption Commission have acted in several respects ultra vires the provisions of the Anti-Corruption Act and have thus acted contrary to the principle of legality the Accused persons object to any evidence to be led which were obtained through search and seizure warrants on the grounds that:

  1. The three warrants attached here to marked “A”, “B” and “C” are null and void and unlawful, firstly on the ground that contrary to the provisions of s 22(3) that requires that an application for a warrant must be supported by an affidavit or a solemn declaration the warrants were not applied for on application supported by an affidavit or a solemn declaration as the person that purported to commission the deponent’s affidavit was not a Commissioner of Oath as contemplated in terms of the Justice of the Peace and Commissioner of Oaths Act, Act 16 of 1963 and the Regulation governing administration of oath and affirmation of 1972 as the authorized officers of the Anti-Corruption Commission were only listed as Commissioner of Oath ex officio on 1 January 2012 as per the attached notice in the Government Gazette No.: 4883, Government Gazette of 15 February 2012 marked “D”.
  1. The warrants of arrest are further invalid as they did not specify a specific authorized officer who was given the power to search and seize as required in terms of s 22(5)(b) of the Anti-Corruption Act which required that an authorised officer must specifically be mentioned in the warrant of search and seizure and in accordance with the common law as confirmed by this Court’s ruling in Samco Import & Export CC and Another v Magistrate of Eenhana and Others, 2009 (1) NR 290 (HC) and Simataa v Magistrate of Windhoek and Others, 2012 (2) NR 658 (HC), judgments attached hereto and marked “E” and “F”.
  1. The warrants are further invalid as their bounds and ambits with regard to what to be searched and seized were not determined by the Magistrate but predetermined by the agents of the Anti-Corruption Commission.
  1. The warrants are further invalid as should the Magistrate that purportedly issued the warrants applied her mind she would have firstly found that before her there was no application in terms of the law and secondly that no case was made out on reasonable grounds for her to issue the warrants. She therefore did not apply her mind.
  1. The warrants are further invalid as their terms were broad, vague and general.
  1. The warrants are further invalid as they did not specify a specific offence – (a specific corrupt practice) – in respect of which the warrants were issued.”

[4]During the trial, the defence did not refer to or raise questions with regards to the search and seizure warrants which they intended to as per their previous threat to do so when they submitted their Notice of Objection referred to (supra) on the basis that they had been irregularly obtained.

[5]What prompted the defence’s objection is that during the trial,the state through one Johannes Andries Truter intimated that it would rely on certain bank statements purportedly obtained in terms of s 21 of the Act. This evidence was not obtained through search warrants, but, summons. To my understanding the summons and search and seizure warrants were and continue to be challenged as stated in the objection by the defence as outlined above. Although the summons are the first to be challenged, the search and seizure warrants will no doubt also fall for a challenge as already stated by the defence.

[6]On the 19 August 2014 all the three applicants lodged this application seeking my recusal from continuing to preside over their trial on the basis that I was biased for the reasons that appear hereinunder. In support of this application,Teckla Nandjila Lameck [hereinafter referred to as first applicant], deposed to a founding affidavit. In that affidavit she stated that the application was joint and was a challenge of the validity of the summonses and not the search and seizure warrants which had not been placed as an issue and argued before this court. First applicant also, stated, that, I had gone further and determined the issue of the validity of the search and seizure warrants when they had not been accorded an opportunity to argue this aspect and for that reason the stance I had adopted has resulted in them being apprehensive as theyare of the view that I am and will be biased against them and infact in paragraph 24.5 of her affidavit she stated:

“in paragraph 29 of the ruling, the Learned Judge publishes a search and seizure warrant which is issued in terms of section 22(4) of the Act.

Observation

I maintain that that issue was not live before the court at that point in time and the court could not have made a ruling on this aspect. The whole bases (sic) of the decision made by the court, to dismiss our objection follows from the mischaracterisation of our complain and I maintain that the other applicants and I did not get a hearing as the court completely misdirected itself regarding the issue that was placed before it for decision. In the same vein, the court predetermined an issue that is still live between the parties and on which none of the parties had made submissions to it.

D. Conclusion

In the circumstances I must inevitably conclude that the Learned Judge closed his mind regarding the objection raised by the accused and predetermined an issue that was not before him. The inevitable consequence of the above is that even if I get an opportunity to argue on the question of validity of the summonses the learned judge is inevitably going to come to the same conclusion and for this reason, I have a reasonable apprehension of bias on the part of the Learned Judge and have no choice but to seek his recusal.” (emphasis added)

[7]In the same vein she is of the view that my determination was irregular and as such they will not receive a fair trial. In paragraph 25 of the said affidavit she states: (emphasis added)

“The circumstances under which the warrants which were now confirmed to be valid by this court were obtained or issued is live between the State and us, and possibly calls for a trial within a trial to determine whether the evidence obtained pursuant to such warrants is admissible. This issue has now been prejudged by this Honourable Court. The court, was not entitled to rule on the issue without it being asked to rule on the matter and more importantly without parties making submissions. The continuation of the Presiding officer with this trial, under these circumstances and in view of the above referred to gross and vitiating irregularities would make the applicants’ trial unfair.” (my emphasis)

I must state right from the start that the right to afair trial is a universal right which adds value and credence to the Namibian jurisprudential system and is respected among other jurisdictions of great repute. Applicants are, therefore, correct in their quest for justice in that regard. These courtsin general and indeed this court in particularhas no intention of depriving applicants of their constitutional rights.

A fair trial is a perquisite in every trial in general and in Namibia in particular, be it in a civil or criminal trial or any judicial process for that matter. It is a fundamental human right enshrined in the Namibian Constitution which clearlystates:

“Article 12 Fair Trial – (1) (a) in the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.

(d) all persons charged with an offence shall be presumed innocent until proven guilty according to law, after having had the opportunity of calling witnesses and cross-examining those called against them.

(e) All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice.”

These Courts have a reputation of holding at a very high esteem citizen’s rights to a fair trial irrespective of the consequences and this has been held to be the universal and correct legal position. Fear of an unfair trial can only be inferred and / or declared to exist where empirical evidence is presented to the presiding officer that indeed it is so. This will have the effect of nullifying the proceedings and it should not be lightly inferred.

[8]The question of recusal by a judicial officer is a constitutional matter that goes to the root of a litigant’s entitlement to a fair trial before an impartial court. The said doctrine requires a judicial officer to recuse himself/herself from proceedings if he/she decides that it is inappropriate for him/her to hear a case before him/her where there appears to be a bias or apparent bias. In that regard it is imperative upon the judiciary to ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge a case before it, fairly and impartially. Applicants’ are correct in that it is their constitutional right that they be accorded a fair trial. That right is guaranteed and for that reason is indeed sacrosanct.

[9]Applicant as pointed out (supra) seek my recusal as they are of the view that this trial has not been properly handled by myself in as far as my dealing with the search and seizure warrants as opposed to the summonses. It is for that reasonthat their perception that they have a reasonable apprehension that I will be biased against them when the issue of search and seizure warrants comes up for determination.

[10]The principle of recusal of a judicial officer is part of our law. Courts in this jurisdiction and others either under Roman-Dutch law and/or English law have applied this principle in many cases before. The test is that of reasonableness.The English case of Porter v Magitt CC [2002] 2 AC 357 is relevant. Further, under our law, the position was ably stated in S v Malindi & Others 1990 (1) SA 962 at 969 G-H where Corbett CJ stated:

“The common law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.” (my emphasis)

The same principle was even made more clearer in the celebrated case of Republic of South Africa v South African Rugby Football Union (SARFU case) v South African Rugby Football Union 1999(4) SA 147 at 175 BE where it was stated:

“Application of the test

[45] From all of the authorities to which we have been referred by counsel and which we have consulted, it appears that the test for apprehended bias is objective and that the onus of establishing it rests upon the applicant. The test for bias established by the Supreme Court of Appeal is substantially the same as the test adopted in Canada. For the past two decades that approach is the one contained in a dissenting judgment by De Grandpre J in Committee for Justice and Liberty et al v National Energy Board:

‘…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.”

In R v S (RD) Cory, J, after referring to that passage, pointed out that the test contains a two-fold objective element: the persons considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case” (emphasis added)

The same court went further at p 177B-G par 48

“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 submissions 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 officer, for whatever reasons, was not or will not be impartial.”