Amushelelo v Shikongo (HC-MD-CIV-MOT-GEN-2025/00146) [2025] NAHCMD 177 (15 April 2025)

Case Title:

MICHAEL NDALI SADDAM APPLICANT

AMUSHELELO

and

JOSEPH SHIMWEELAO SHIKONGO RESPONDENT

Case No:

HC-MD-CIV-MOT-GEN-2025/00146

INT-HC-REC-2025/00541

Division of Court:

High Court, Main Division

Coram:

Honourable Justice Hans-Kaumbi, AJ

Heard on: 9 April 2025

Delivered on: 9 April 2025

Reasons: 15 April 2025

Neutral citation: Amushelelo v Shikongo (HC-MD-CIV-MOT-GEN-2025/00146)[2025] NAHCMD 177 ( 15 April 2025)

Order:

The applicant is sentenced as follows:

Payment of a fine in the amount of N$ 5000 (five thousand Namibia Dollar) and in default of payment 6 (six) months imprisonment. In addition, thereto a further 6 (six) months imprisonment which is wholly suspended for a period of 2 (two) years on condition that he is not found guilty of contempt of court, committed during the period of suspension.

Reasons:

HANS-KAUMBI AJ:

Introduction

1. On 7 April 2025, the applicant was convicted of contempt of court in facie curiae and now the court has to determine what sentence would be appropriate under the circumstances.

2. In the case of Christian t/a Hope Financial Services v the chairman of the Namibia Financial Institutions Supervisory Authority¹, Judge Niekerk stated:

‘In considering what a proper sentence would be, I bear in mind what was stated in S v Nel [1990] ZASCA 145; 1991 (1) SA 730 (AA) (the quotation is from the English headnote, which accurately reflects the Afrikaans judgment):

Contempt which is committed in facie curiae is a unique offence; it is a distinct procedure whereby the offender can there and then be found guilty and sentenced; and the sentence which is imposed also has unique characteristics. Someone who commits contempt in facie curiae is not an ordinary criminal in the everyday meaning of the word and he ought not to be treated as such. The reason for the existence of the summary procedure (in the wide sense) in terms of which the offence can immediately be dealt with is the necessity that a court, as the axis on which the administration of justice turns, must be in a position to protect its reputation and dignity and to ensure the orderly conduct of its proceedings. The primary objective of the application of the contempt procedure is to maintain the reputation and dignity of the court and the orderliness of its proceedings. It is to achieve that objective that the court exercises its power to punish the offender. The most important function of the imposition of punishment in this case is to enforce the court's authority. There is no room whatsoever for any notion of retribution. There can also be limited scope for reformation: for the most part (leaving aside exceptional cases) the purpose of the punishment which is imposed is to bring the offender to his senses in the very proceedings in which the offence is committed. Deterrence is by the same token often and chiefly directed at getting the offender to refrain from continuing with his contemptuous conduct in the proceedings which are underway. The punishment is not meant to hurt the offender but to bring about an end to the outrage to the court's esteem and authority. The extent of the punishment stays in the background; in the foreground is the esteem and authority of the court; and between the one and the other there is no direct relationship. The authority of the court is too precious to attempt to measure it against any punishment which may be imposed for conduct which harms it. Esteem for the court cannot be achieved by heavier punishments for insults to the court. These considerations indicate why a heavy sentence in these sort of cases is generally inappropriate in the ordinary course of events’.

Mitigating Factors

3. In mitigation Mr Amushelelo stated the following:

1. That he is a 34-year-old male with a 9 year-old daughter, whose school he is responsible for.

2. He is unemployed and relies on charitable donations.

3. His parents are pensioners and he manages their pension monies, as he is financially literate.

4. He indicated that he understands the severity of the conviction and he stated that he has remorse for his actions because he now realizes how his actions affects his loved ones and as such it is a time to change his life.

5. He further stated that he is a lay person, a social activist and he came to court from a political atmosphere and did not understand that there is a particular tone, manner and language to be used in court and as such brought his political attitude to court. He indicated that there was no mala fide on his part but perhaps ignorance.

6. He further stated that he has dogs at his plot where he stays alone and needs to take care of these animals.

7. Based on the above he asked for a lenient sentence as follows:

1. That the court sentences him to 48 hours in detention since the making of the order of conviction of contempt of court and until the rising of this court and;

2. The court impose a fine of N$ 300 in addition to the above custodial sentence.

4. The applicant was found guilty of contempt of court in facie curiae because of the contemptuous statements made towards the court and it is imperative to re-emphasize the principles upon which he trampled when he did so.

Determination

5. Judicial independence is a foundational principle of any democratic legal system. It ensures that Judges can make decisions based solely on the law and facts, free from external pressures, influence, or interference whether from the government, private parties, or public opinion.

6. The Judges have a duty to actively protect and uphold this independence to maintain public confidence in the fairness and impartiality of the justice system. This duty involves several responsibilities such as: Impartial decision-making, resisting external pressure, upholding Judicial ethics, defending Judicial institutions, in that Judges may speak out, when appropriate, to defend the Judiciary from unfair attacks or threats to its autonomy, especially when these could undermine public trust or the rule of law.

7. Ultimately, when Judges protect the independence of the Judiciary, they not only safeguard their own ability to dispense justice but also uphold the democratic principle that no one is above the law. The administration of justice, the rule of law, and the public interest are fundamental principles that guide the functioning of courts and the legal system as a whole.

8. The administration of justice ensures that legal disputes are resolved fairly, impartially, and efficiently. It upholds individuals' rights and enforces the law consistently, maintaining public confidence in the legal system. Courts play a central role in delivering justice by interpreting laws, ensuring due process, and holding individuals and institutions accountable.
   
   

9. The rule of law is a cornerstone of democratic societies. It means that everyone, including government officials, is subject to the law. Courts safeguard the rule of law by checking abuses of power, protecting fundamental rights, and ensuring that laws are applied equally and without bias. This prevents arbitrary governance and promotes legal certainty and stability.

10. Serving the public interest means that court decisions and legal processes must prioritize the welfare of society as a whole. Courts ensure that justice is not only done but seen to be done, reinforcing trust and legitimacy. They also balance competing interests such as individual rights and community safety while striving for outcomes that promote fairness and social order. Together, these principles ensure that courts function as impartial guardians of justice, protect democratic values and maintain social cohesion.

11. The fact that, the applicant is a social justice activist, and social justice activists play a crucial role in promoting equality, fairness, and human rights within society. Now where does one go to enforce the rights of individuals whose human rights are infringed? To these very courts that the applicant is now undermining. If we politicize the Judiciary, we risk turning justice into a tool for power rather than fairness.

12. The applicant, having blatant disrespect for Judicial officers and the court threatens all these fundamental principles and if your conduct is left unaddressed it shall lead to the erosion of our Rule of Law which in turn leads to anarchy.

13. Taking all these factors and mitigating circumstances into account, I am of the opinion that the sentence will send a message to the applicant and society at large, that a threat to Judicial independence shall not be tolerated and will result in severe consequences, thereby, discouraging others from acting contemptuous toward the judiciary and it will deter one from disrespecting this court in future.

[14] Thus, the sentence is as follows:

Payment of a fine in the amount of N$ 5000 (five thousand Namibia Dollar) and in default of payment 6 (six) months imprisonment. In addition, thereto a further 6 (six) months imprisonment which is wholly suspended for a period of 2 (two) years on condition that he is not found guilty of contempt of court, committed during the period of suspension.

Judge’s signature

Note to the parties:

AN HANS-KAUMBI AJ

Counsel:

Applicant

Respondent

In person

M Nambili

Nambili Mhata Legal Practitioner attorneys

Windhoek