HANS-KAUMBI AJ:
Introduction
This recusal application emanates from an urgent application wherein the respondent seeks interim relief against the applicant pursuant to an alleged violation of a court order dated 9 October 2024 made in terms of a settlement agreement between the parties in case number HC-MD-CIV-ACT-DEL-2023/00853.
The urgent application was enrolled on e-justice on 3 April 2025 and remained unopposed until the morning of 7 April 2025, on which date the matter was set down to be heard. At the hearing of the matter, the respondent appeared in person and indicated that he intends to oppose the matter, but would require legal representation of his choice in the matter. The court stood the matter down for 15 minutes to grant the applicant an opportunity to defend the matter on e-justice, and he subsequently did so. When the matter resumed, the applicant stated that he would require an opportunity to raise funds as he is a social justice activist and is unemployed and to acquire the services of a legal practitioner of his choice and an advocate he needs to raise N$ 100 000 via a social media campaign and he has already raised approximately N$ 32 000 thus far, through his legal practitioners of choice. He thus needed the urgent application to be postponed to Friday, 11 April 2025. He indicated that, in terms of Article 12 of the Constitution, he has the right to have a legal practitioner of his choice to represent him.
When the court enquired as to when he became aware of the proceedings before this court he stated that he could not remember but stated that, it was on the date that it was sent to him by the respondent’s legal practitioners and opposing counsel came to the court’s aid by indicating that in terms of the service affidavit the papers were received on 3 April 2025. The court further enquired whether he had read the papers, and he stated that he did not, because he is a lay person; hence, he required a legal practitioner.
The respondent opposed the postponement application by stating that:
This is an unprocedural application for a postponement.
That in terms of the service affidavit at paragraph 7.1. the respondent acknowledged receipt of this application by sharing images of the court documents on his social media pages and here the court was referred to LTE 2 which is a document that indicated the posts made by the applicant on social media. He further states that “ Shikongo should take note that the Courts will never silence me, whatever the Court orders I shall not comply, if they have to arrest me for contempt of Court so let it be,….”
He further refers the court to LTE 3, where he invites members to attend the court proceedings, and that money should be paid into the bank account of his lawyers, Kadhila Amoomo. And LTE4 is a picture of the applicant and his legal practitioner, Mr. Kadhila Amoomo. The respondent was aware of the legal proceedings and read the papers, and it’s not true that because he only has N$32 000, he cannot have the legal representation of his choice, as he already stated who his legal practitioners of choice are.
The rights of the respondent cannot be parked because the applicant wants to get legal practitioners, as he already indicated who his legal representatives are, and they already confirmed the money received on Facebook, and this is in terms of LTE4, which depicts the post of the legal practitioners Kadhila Amoomo. Thus, the application to postpone the matter is disingenuous and undermines a very serious matter.
Reply
In reply, the applicant indicates that he is fighting a very important individual, and it’s like fighting the State, and for that reason, he wants an extension till Friday to raise the funds. Despite the fact that I have legal representation, I want an advocate, he stated. The court must allow me ample time to raise the necessary funds to come back to court with my legal team, he further stated.
The court enquired from the applicant the following:
“You confirmed that Mr. Kadhila is your legal representative of choice, the applicant responded, Yes’’.
The court then enquired:
“Why is he not here? and the applicant responded that he has many unpaid cases with his legal practitioners and thus, cannot be represented’’.
The court enquired as to why Legal Aid was not applied for, and the applicant responded that:
“We all know Legal Aid is under-staffed and under-resourced, and understanding the urgency of the matter, I wanted a legal practitioner of my choice to ventilate the matter to the fullest.
The applicant then conceded to the fact that if granted a postponement to Friday, he would not post about the case until then. The court then enquired whether he understood the essence of this urgent application, as it emanates from postings made on social media about the respondent, and as such, urgent interim relief is sought. The court pointed out that the applicant conceded that he has funds available in the amount of N$32 000 with his legal practitioners of choice for this matter.
It was on this basis that the court then stood the matter down until 2 pm for his legal practitioners of choice to come on record so the matter could be heard.
When the court resumed at 2 pm, the applicant indicated that he had not secured legal representation, and the court stated that the matter would proceed.
The applicant then indicated his intention to file an application for my recusal on the grounds that this court is violating his constitutional rights by allowing the matter to proceed without his legal representatives, arguing that the courts should not be transformed into a kangaroo court.
Application for recusal
The basis of the recusal application stems from the refusal of this court to entertain the postponement application. He stated that his constitutional right has been violated, and it is unfair that he cannot be granted an opportunity to have his legal practitioners.
The respondent opposed the application for recusal, on the basis that his application is bad in law because he does not meet the test for recusal as set out in the judgment of Christian t/a Hope Financial Services v Chairman of Namibia Financial Institutions Supervisory Authority at page 28, which 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 in the adjudication of the case’.
Thus, the question is whether there is an apprehension of bias on my part? Paragraph 7 of the founding affidavit fails to address any apprehension of bias, thus, it fails the test for recusal.
The test is objective, and the onus rests on the applicant for recusal. The respondent stated that:
“There is no single allegation of bias in the recusal application, and as such it cannot succeed”.
The respondent further stated that the application for recusal is contemptuous and he then referred to paragraph 9 of the applicant’s founding affidavit, which reads as follows: “The court allowing this matter to proceed despite my serious objections is similar to watching a child being molested in the presence of their parents”. Counsel for the respondent stated that this allegation made impairs the dignity of this honourable court and that such an allegation being made in the context of the actual urgent application is contemptuous and he also referred this court to the case of Christian t/a Hope Financial Services v Chairman of Namibia Financial Institutions Supervisory Authority and others where the court found the applicant to be in contempt after the applicant filed a letter with contemptuous statements, stating that that there was an improper relationship between Lorentz Angula and the Court. The court in this case dealt with the contempt mero motu and did so promptly. Thus, counsel for the respondent submitted that the applicant has failed to make out a case for recusal.
In reply, at the hearing of the recusal application, the applicant made the following statements which require this court to deviate from the application for recusal and have regard to the statements made by the applicant, I hereby, believe it apposite to state what the applicant stated “Over the years, despite the oath taken by judges, Judges are puppets who answer to their appointing authority. All Judicial officers are appointed by an appointing authority, are you really independent when someone appoints you in that particular position, nobody bites the hand that feeds them. Judges think themselves little gods because they are referred to as your worship, your lordship and your ladyship”.
[19] The Court then enquired from the applicant:
1. “Do you understand that the statements you have made about this court goes to the integrity of this court:? I fully understand that My lady.
2. Do you understand that the intent with which you are making the statement is to obviously place the reputation of this court in disrepute? That I fully understand My lady.
3. Do you stand by the paragraph 9, as indicated by counsel to be in contempt of this court, of the your founding affidavit? Yes, I stand by it.”
[20] In the case of Christian v Chairman of Namibia Financial Institution (1) 2009 NR 22, the court referred to the Heita Case, where Judge O’Linn said that:
‘In respect of the crime of contempt of court, a court can summarily act against persons who commit contempt of court but this summary procedure is intended primarily for contempt in facie curiae and not in connection with contempt committed outside court, particularly where several parties are involved, the facts are probably in dispute and the attack is levelled at the very trial judge who has to consider whether he should initiate summary contempt of court proceedings. It must be emphasized that it is not only the independence of the judges or judicial officers that must be protected but their dignity and effectiveness’.
[21] Considering the remarks made by the applicant, it constitutes a blatant assault on the Judiciary's independence. Moreover, the intention behind these comments is to tarnish the Judiciary's reputation, exacerbating the situation. The applicant's behaviour must not go unaddressed. The Judiciary serves as a government branch that upholds the rule of law in our country. If anyone can launch unfounded attacks against it under the pretence of freedom of speech without facing consequences, we risk descending into chaos. Remember, your rights are bound by the rights of others, meaning they are not infinite. Thus, I come to the conclusion that the applicant is guilty of contempt of court in facie curiae.
[22] The application for recusal has thus become moot because I have found the applicant to be in contempt. Thus, despite the fact that he has not made out a case for recusal, I shall be handing this case back to the Registrar for reallocation to another judge, as I have pronounced myself on the contemptuous behaviour of the applicant.
[23] I thus make the following order:
1. The applicant is convicted of contempt of court.
2. The applicant is ordered to pay the cost of this recusal application, which costs shall not be limited in terms of Rule 32 (11).
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