Court name
High Court Main Division
Case name
Kanime v Minister of Justice and Others
Media neutral citation
[2013] NAHCMD 73
Judge
Damaseb JP













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 166/2011



In the matter between:








THOMAS K KANIME
...................................................................................APPLICANT








and








THE MINISTER OF
JUSTICE
..........................................................1ST
RESPONDENT



THE CHAIRPERSON OF THE
MAGISTRATE’S



COMMISSION
..................................................................................2ND
RESPONDENT



BONGANI NDLOVU N.O.
................................................................3RD
RESPONDENT








Neutral citation:
Kanime v The Ministry of Justice (A 166/2011) [2013] NAHCMD 73
(19 March 2013)








Coram: DAMASEB, JP








Heard: 12 March 2013



Delivered: 19 March
2013








Flynote: Review in
terms of rule 53 – Applicant seeking to review his dismissal as
magistrate – Review brought 11 months after dismissal.








Summary: Review –
Rule 53 – Review application to be brought within a reasonable
time – Applicant seeking to review the decision dismissing him
as magistrate and seeking an order of reinstatement – Applicant
stating that the hearing took place in his absence and when he
required legal representation and his lawyer was not available-
resultant hearing therefore in breach of articles 18, 12 of the
Constitution as well as s 26(5) of the Magistrates Act, 3 of 2003 –
Respondents’ case that the applicant had unnecessarily
prolonged the hearing though postponements and was granted enough
time and disclosure to defend himself against the charges – The
fact that applicants lawyer absent from proceedings not due to any
unlawful or unreasonable conduct on the part of th respondents –
In any event review unreasonably delayed causing prejudice to
respondents - Court holding that delay unreasonable in circumstances
and no proper foundation laid for condonation – Court satisfied
applicant afforded sufficient time to arrange legal representation
and to prepare for hearing – non-cooperation between applicant
and his insurer and legal representatives no valid reason for not
proceeding with hearing – such a contractual issue between
applicant and his lawyers – application dismissed.










ORDER










I make the following
order:








The application is
dismissed, with costs.















JUDGMENT










Damaseb, JP:








[1]
The applicant seeks to have his dismissal as a Magistrate reviewed
and set aside. A disciplinary hearing into his alleged misconduct as
contemplated in s 26 (6) – (15) of the Magistrates Act
1
(‘MCA’) took
place on the 01-02 July 2009 in his absence.
He
was thereafter present on 03 July 2009 when he was found guilty of
misconduct by the third respondent (‘presiding officer’)
appointed
2
to conduct the
disciplinary hearing. The presiding officer then recommended to the
second respondent , the Magistrate’s Commission (‘the
Commission’) that the applicant be requested to resign as
magistrate
3
and failing such
resignation, for the second respondent to recommend his dismissal to
the Minister of Justice (third respondent).
4
Upon being so requested
to resign, the applicant refused and the second respondent
recommended his dismissal to the Minister.
5
The Minister then on 23
July 2010 dismissed the applicant, effective 01 August 2010. It is
now settled that once such a recommendation is made, the Minister has
no discretion in the matter; he or she must dismiss the convicted
magistrate.
6








[2] The applicant seeks
to review and set aside the decisions of all these functionaries. He
also seeks reinstatement retroactively from date of dismissal and
payment of ‘all remuneration, and [to be credited] all benefits
that would have accrued’ to him but for the dismissal. He also
seeks costs of suit.








[3] The incidents which
led to the applicant’s dismissal occurred during his tenure as
magistrate for the district of Oshakati. At second respondent’s
prompting, the applicant was served with 16 charges of misconduct on
15 October 2008 by the control magistrate (Mr Amutse) having
supervisory jurisdiction over him.








[4] Counts 1 – 10
allege absence ‘from office or duty without leave or valid
cause’. Counts 1-2 allege such absence during specified dates
in the month of February 2007. Count 3 relates to a specified date in
the month of September 2007. Counts 4-7 refer to absence on specified
dates in the month of November 2007. Count 8 -10 similarly refer to
absence during March, April and May 2008 on dates that are specified.



[5] The remainder of the
counts are as follow:








Count 11: Contrary to s
24(h):



During
March 2008 and April 2008 Applicant made improper use of Government
property to wit a computer, printer, paper and fax facility to
request financial assistance or a “helping hand of any kind”
from various private companies.








Count 12: Contrary to s
24(k):



During
March 2008 and April 2008 Applicant requested financial assistance
for personal gain per fax from various private companies. Provided
his private Back Account details in the said fax, an act that brings
or is likely to bring the administration of justice or the magistracy
into disrepute.








Count 13: Contrary to s
24(k)



On
14th May 2008 Applicant assaulted Erastus Pokolo in his
shebeen by attacking him physically, an act which brings or is likely
to bring the administration of justice or the magistracy into
disrepute.








Count 14: Contrary to s
24(f):



During
2002/2003 Applicant instructed Collin Parker to change the minutes of
the Liquor Board meeting in order to approve the licence of a certain
Jonas Paulus after the Liquor Board decided not to grant Jonas Paulus
the liquor licence. This was done as Applicant was promised a reward
by Jonas Paulus.








Count 15: Contrary to s
24(k)



On
the weekend of 7th to 9th November 2003 and at
Moah Bar, Applicant interfered with the duties of the police when
they tried to close the bar, an act which is likely to bring the
administration of justice or the magistracy into disrepute.








Count 16 Contrary to s
24(k):



Applicant
was running a business without permission from the Magistrates
Commission, to wit a shebeen on the Oshakati – Ondangwa road
which is interfering with applicant’s duties and the running of
the shebeen brings or is likely to bring the administration of
justice or the magistracy into disrepute.








The record of the
investigation



[6]
The record of proceedings
discovered by the respondents following the filing of the review
application shows that at the hearing of 29 June 2009 the applicant
was not legally represented. The record shows further that Mr Evad
Gous, an admitted legal practitioner of this court,
had
been appointed by Legal Shield (he knew about the hearing and had
committed himself to be present). The applicant conveyed to the
presiding officer that he had in fact spoken to Mr Gous that morning
and that Mr Gous would not be present. The applicant informed the
presiding officer that Legal Shield had only on 19 June 2011
appointed Mr Gous and
that
was too short a notice
for Mr Gous to have prepared for and represent him at the hearing. He
also stated that the investigating officer had not disclosed to him
some documents and that the witnesses who would testify against him
would be more than the five he was originally told would testify
7.
The applicant also told the presiding officer that the case was not
an ‘easy’ one and that he would not be able to
participate in it without legal representation. He took the stance
that he was not responsible for the absence of his appointed lawyer
for whose services he had paid ‘by going deep into my pocket
including the transport whether by road or by flight’. He
stated that it mattered not to him that the investigating officer was
ready to proceed. As he put it, that carried ‘no water to me’
and that he was not ready ‘and will never be ready because my
rights at the end of the day will be tarnished and I need to be fully
represented through my own resources that I did pour throughout’.
He boldly stated that he had not as at that date received ‘any
single statement as a disclosure’. The applicant confirmed in
his submission that he had been informed by the investigating officer
that some witnesses for the Commission were present while others are
on standby. He took umbrage with that and stated ‘I do not know
whether they are soldiers or police officers to be on standby. The
witnesses cannot translate or interpreted to mean on standby as if
they are going for war’. He concluded:








I
will never, ever be ready to proceed with this matter if my lawyer is
not here. To my dead body I will never even say a word if the
proceedings is going to commence
.








[7]
On his part, the investigating officer
8
confirmed that the
witnesses were available and knew they would be called ‘anytime
this week’. He added that the Act did not require that the
investigation be done through statements. He concluded that the
disclosure made placed ‘sufficient and enough disclosure’
for the applicant to prepare. As for the counts allegedly being old,
he stated that all related to 2007-2008 and that only one (count 14)
related to 2002/2003 and that he intended to withdraw it once the
proceedings commenced. To save time, he said, they should not
concentrate on that count. The applicant then submitted that if count
14 were to be withdrawn the same should apply to count 15. In respect
of the criminal offence alleging assault, the applicant stated that
the case was settled as he had paid an admission of guilt fine, thus
admitting the allegation that he had assaulted Mr Pokolo.








[8] The record reflects
that the presiding officer then gave a reasoned ruling. Inter alia,
he sated as follows:








[W]e
were alive to the fact that Mr Kanime had been told by his insurers
Trustco at the latest by 14
th
of April 2009 to get a disclosure and forward the same to his then
representative. Notwithstanding all that, disclosure had not been
sought or made and was finally made yesterday the 29
th
of June 2009
.








[9] In his ruling
refusing the application for postponement, the presiding officer also
placed on record that the applicant had confirmed having spoken to Mr
Gous on the Friday and was to follow up on that discussion but had
not done so. He also stated that Mr Gous had advised that he had a
problem getting a flight to Ondangwa for the morning of 30th
June 2010. The investigating officer then suggested to Mr Gous
to try a flight for the next day or the day after. Mr Gous then
called back to tell the investigating officer that he could not as he
had meetings to attend. In his ruling, the presiding officer added
‘All this is against the background that Mr Gous is reported to
have been appointed because he will be available for this hearing the
whole of this week’. The presiding officer argued that the
applicant had the right to be legally represented but that it was his
responsibility to secure such representation. He concluded that it
was his duty as presiding officer to ensure that the applicant is
afforded a reasonable opportunity to secure legal representation and
to prepare his defence and that having regard to ‘all the
developments in this matter we have afforded Mr Kanime more than
sufficient time to secure his representation and to prepare his
defence. The postponements cannot in my view go on forever. This
delay which stretches over a period of more than eight months can no
longer be justified’. Having thus concluded he ruled that the
hearing proceed on 1 July 2009 at 09h00. On 1 July the applicant was
not present. What happened thereafter I will summarise when dealing
with the respondents’ affidavits in opposition to the relief
sought.








[10]
Upon resumption of the
hearing on 1 July and in the absence of the applicant, the charges
were read out and the investigating officer proceeded to lead
witnesses in support of the charges against the applicant. In
particular, evidence was led in support of the allegation that the
applicant solicited funds for the erection of a boundary wall for his
house. Mr Jan Greyling, a legal practitioner who practices in the
applicant’s area of jurisdiction,
testified
how when he came to court sometime in 2007, the applicant approached
him and made a request for assistance in the form of building
material. Mr Greyling later received a fax from the applicant on the
letterhead of the Ministry of Justice, signed by the applicant,
seeking financial assistance. Mr Greyling testified about the
discomfort he felt by such a request from a judicial officer before
whom he had to appear. A Ms Annetjie Brandt of the Trustco office in
Ondangwa also testified. She stated that she received a fax to
similar effect testified to by Mr Greyling in which the applicant was
seeking financial assistance for the erection of a wall at his house.
That letter was in fact received as an exhibit at the hearing. Other
witnesses were called in respect of this and other charges against
the applicant. Correspondence directed to the applicant about his
absence from work without leave was received in evidence. When the
record of the proceedings sought to be reviewed was filed of record
all the documents supporting the charges were available to the
applicant. He chose not to amplify his papers as is permissible under
the court rules
9
to deal with any aspect
of the hearing, the evidence led and the documents proving the
charges against him.








[11]
After the evidence had been led and submission of the investigating
officer received, the presiding officer made a reasoned ruling. He
acquitted the applicant (in absentia) of counts 3, 5, 6, and 16 but
convicted him on counts 1,2,4,7,8,9,10,11,12,13 and 15. Count 14 was
withdrawn. Thereafter, the presiding officer caused the applicant to
be informed that the sentencing phase of the proceedings will take
place on 3 July 2010. The applicant was contacted and agreed to come.
When so contacted, the respondent’s Mr Bampton conveyed to the
investigating officer that the applicant told him that he was ‘shaft
by the absence of his legal representation at the hearing but that he
will be recovered by tomorrow the 3
rd
of July and that he will
be present to hear the ruling’.








Applicant’s case



[12] The applicant’s
case is that he is innocent of the charges brought against him, and
that he could have been able to defeat them if he had proper legal
representation and if he was afforded the opportunity to access the
records of the magistracy and to present evidence. He further alleged
that the misconduct occurred during 2002/2003. He put it as follows:








It
would be unfair in the absence of records being submitted to me, to
proceed with these charges, considering a long period which had
lapsed since the alleged occurrence of the events set out in the
charges.
10
If
I was properly represented, I submit, that many of these charges
would have been quashed on the basis that it would be unfair to
charge me with absenteeism in the circumstances where those events
are alleged to have occurred a number of years back
.








[13]
The applicant also alleged in his founding papers that the
proceedings against him were unfair in the absence of ‘records’,
and that he was not served with the requisite statement of
particulars of the alleged misconduct as required by s 26(2)(a) of
the MCA.
11
According to the
applicant, after the case was postponed in November 2009, he had
asked for additional disclosure from the investigating officer but
that same was not made by 14
th
April 2010. According to
him, the reason for the postponement in April 2010 was because the
legal insurer had not yet appointed a replacement for Mr Van Rensburg
and because of incomplete disclosure.


















Legal basis for review



[14]
Applicant alleges that the proceedings proceeded in his absence and
while the presiding officer knew that he was booked-off.
12
The applicant alleges
that in the manner the proceedings were conducted, his following
rights were violated
13:









  1. to
    be personally present at the hearing;



  2. to
    be assisted or represented by a legal practitioner;



  3. to
    give evidence;



  4. to
    be heard;



  5. to
    call witnesses;



  6. to
    cross-examine any witness called in support of the allegations
    against him;



  7. to
    examine any book, document or object produced in evidence against
    him.









[15] The applicant
maintains that he was denied the right to fair and reasonable
administrative action guaranteed by Article 18 of the Constitution.
The applicant alleges that the hearing was conducted in his absence,
because when it took place:








a)
he was booked off sick on the dates when evidence in the matter was
heard;



b)
his legal representative was not present;



c)
his legal representative was not provided with disclosure of
documents and records to be used in evidence against him;



d)
disclosure of records and documents to be used against him in the
investigation was late and only made available to him on 29 June
2009;



e)
he did not have an opportunity to fully appraise himself of the
contents of the documents to be used against him;



f)
he did not have an opportunity to consult with the legal
representative who was appointed by Legal Shield/Trustco to represent
him in the proceedings;



g)
the charges against the applicant dated back to 2003.








[16] The applicant states
that he was able to establish from ‘some records of the
magistracy’ ‘subsequent to the verdict’ that in
respect of the allegations of absenteeism relating to counts 1, 2 and
7, he was indeed either at work contrary to the allegation otherwise,
or was booked off sick. He maintains that if he was afforded the
opportunity, he could have met those allegations successfully. (He
offers no such rebuttal in respect of the rest of the charges.)








[17]
The applicant alleges therefore that the proceedings were inherently
unfair and contrary to his constitutional right to fair and
reasonable administrative action guaranteed by Article 18 and s 26
(a)
of the MCA.








The respondents’
case



[18] The main affidavit
in opposition to the review application is deposed to by the third
respondent who was the presiding officer at the applicant’s
disciplinary hearing. The allegations he makes, in so far as they
relate to them, are confirmed by the first and second respondents and
the individuals who had appeared before the third respondent.
According to the third respondent, the applicant on 3 November 2008
in writing sought a postponement of the hearing on the grounds (i)
that he did not receive disclosure and required detailed disclosure
and (ii) he wanted to consult a legal practitioner of his choice.








[19]
Third respondent replied
on 31 October 2008 that (i) in terms of s 26(5) of the MCA he was
under an obligation to determine a time and date not later than 21
days from date of appointment, (ii) that the determination in respect
of the application for postponement could only be made on 3 November
2008. Applicant then appeared with a legal representative, Mr Van
Rensburg. The latter advised that he was still awaiting instructions
from Legal Shield to represent the applicant and confirmed that the
applicant had received the charges. Mr Van Rensburg also stated that
the applicant had received some disclosure but was awaiting further
documents. Mr Van Rensburg also advised that the applicant was not
prepared to enter a plea and that he was not prepared to proceed on 3
November 2008. A postponement was granted to 14 - 28 April 2009, ie
for a period of 5 months.








[20]
On 14 April 2009 Legal Shield terminated Mr Van Rensburg’s
mandate
14.
The investigating officer advised the hearing that a Mr Willis, a
labour consultant, would represent the applicant. Mr Willis did not
attend on 14 April and the applicant confirmed to the presiding
officer that a new person was to represent him. The applicant also
said that a Mr Willies would represent him and asked for further
disclosure. The case was postponed to 29 June -
3
July 2009 to allow the applicant to retain the services of a new
legal practitioner and for the investigating officer to secure
witnesses. The third respondent postponed the case and warned the
witnesses present to appear.








[21] On 29 April 2009 the
investigating officer advised the presiding officer that a Mr Gous
was appointed to represent the applicant. Applicant who was then
present advised the presiding officer that legal Shield advised him
that Mr Gous would represent him but that he received no call from Mr
Gous. He did not specify exactly when Mr Gous was appointed.
Applicant also informed the hearing that a Mr Ashipala was appointed
to represent him but that the latter never consulted with him. The
investigating officer advised the presiding officer that an official
of legal Shield, Ms Sandra Miller, informed him on 19 June 2009 that
Mr Gous was appointed and would be available during the week of 29
June – 3 July 2009. The investigating officer also reported at
the hearing that Mr Gous informed him that he (Mr Gous) would attend
the hearing on 1 July 2009. The investigating officer then disclosed
documents to applicant in the presence of the presiding officer who
confirmed that the ‘necessary disclosure’ had been made
to applicant and his representatives. This, it is said, was in
addition to the disclosure made prior to 29 June 2009. On 29 June
2009, the applicant sought a postponement alleging that his legal
representative required time to study the documents and that he
needed ‘full disclosure of the particulars of the witnesses’
who would testify against him. The presiding officer refused the
request for the postponement on the following grounds:









  1. disclosure of all
    documents and witnesses had already been made;



  2. Mr Gous was available
    during that week;



  3. Applicant had to discuss
    disclosure with the investigating officer in order to avoid
    prejudice.









[22] The matter was then
stood down to 30 June 2009 on which date the presiding officer was
informed that Mr Gous would not attend because flights to Ondangwa
from Windhoek were full and that he was not prepared to drive to
Ondangwa. Mr Gous had also informed the investigating officer that he
had asked the applicant for some information but that the applicant
did not provide it to him. Mr Gous also informed the investigating
officer that he was not able to commit himself to applicant’s
case that week as he had meetings to attend. This was perceived as a
delaying tactic by the presiding officer because Mr Gous had
previously advised that he was available during the course of that
week. The presiding officer postponed the matter to 1 July 2009.








[23] As for the
allegation that the applicant had not yet received full disclosure,
the third respondent deposed that he was advised by the investigating
officer in the presence of the applicant that he had made enough
disclosure in terms of s 25(1) of the MCA. He added that the
applicant had the right to apply to the High Court to compel the
Magistrates Commission to disclose all documents he needed if he was
still not satisfied. According to the third respondent, the applicant
was given all the documents which were to be used in support of the
allegations against him and which were in fact received as exhibits A
- J. As for the charges, the third respondent states that Mr Amutse
who served the charges on the applicant confirmed that he indeed
served them on the applicant. He also stated that the documents
proving applicant’s absence from work were fully disclosed to
him and appearing at pages 120-124 of the record of the proceedings
filed of record in terms of the review.








[24] The third respondent
avers that he had properly motivated all his rulings and that the
factual bases (as conveyed to the hearing by the investigating
officer) underlying the rulings were at no stage disputed by the
applicant, in particular that he failed to consult with Mr Gous and
that disclosure had been granted in full. For the reasons he fully
sets out relating to the conduct of the applicant, the third
respondent states that he was satisfied that the applicant was
delaying the proceedings by seeking a further postponement.








[25] The third respondent
also states that he afforded the applicant sufficient time to arrange
his legal representation and to prepare his defence. He also deposed
that the fact that the conduct alleged happened in 2003 or 2007 was
no bar to misconduct charges being brought against the applicant and
that there is no law or presumption precluding the Commission from
proceeding against a magistrate on such charges.








[26] On 1 July 2009 the
secretary of the second respondent (Mr Bampton) who also deposed to a
confirmatory affidavit, informed the hearing that he spoke to the
applicant who then said that he went to Ongwediva to finalise issues
regarding his legal representation and that applicant had told him
that he was on his way to the hearing. The investigating officer
informed the presiding officer that Ms Miller had advised him that
she was not aware of any problem concerning applicant’s legal
representation. At 11H00, the applicant informed the investigating
officer that he had parked somewhere as he could not find his lawyer.
When the investigating officer and the chief clerk went to that
parking lot the applicant was not present. The chief clerk deposed
that he called the applicant on his mobile phone and was informed by
the applicant that he was on the premises and that he was
‘exasperated and disappointed’ because he was expected to
attend the hearing without a lawyer. The chief clerk Mr Shafuda and
Mr Bampton then went and knocked on applicant’s door but got no
reaction. When called twice, the applicant confirmed that he was
indeed in his office and threatened to shoot anyone who would enter
his office. An employee of Legal Shield, one Ms Schiven, testified at
the hearing that the applicant never came to the offices of Trustco
that morning. Schiven confirmed that applicant was advised that a Mr
Ashipala would represent him but that he was not happy. It was
because the applicant was unhappy with Mr Ashipala that Mr Gous was
appointed.








Unreasonable delay



[27]
It is trite that a review application seeking to set aside an
administrative decision must be brought within a reasonable time. The
rationale for this rule is that there is a public interest in the
finality of administrative decision-making and challenges thereto.
The respondents who have opposed the matter and filed opposing papers
have taken the point that there was an unreasonable delay in the
launching of the review application and that they have suffered
prejudice as a result of the delay for which there is no reasonable
explanation.
The
third respondent who deposed to the main affidavit on behalf of the
respondents specifically alleged that ‘by now there has been an
appointment to the position that was previously occupied by the
Applicant and if the Applicant lodged his review timeously and
presented it there would have been no prejudice suffered. And it may
have been mitigated. He went on to add elsewhere that the delay is
‘inordinate, unjustified and incurable.’
15








[28] The third respondent
also correctly identified the following as factors that the court
would have regard to in determining whether to condone the delay in
the bringing of the review: the degree of non-compliance, the
explanation for it, the importance of the case, prospects of success,
the respondent’s interest in the finalisation of the case, and
the avoidance of unnecessary delay in the administration of justice.
He added that the applicant failed to provide any basis in support of
these factors. Unreasonable delay has, therefore, been raised
squarely on the papers.








[29]
I repeat what I said in K
leynhans
v Chairperson of the Council for The Municipality of Walvis Bay and
Others
16:








(i)
The review remedy is in the discretion of the court and it can be
denied if there has been an unreasonable delay in seeking it: There
is no prescribed time limit and each case will be determined on its
facts. The discretion is necessary to ensure finality to
administrative decisions to avoid prejudice and promote the public
interest and certainty. The first issue to consider is whether on the
facts of the case the applicant's inaction was unreasonable: That is
a question of law.



(ii)
if the delay was unreasonable, the court has discretion to condone
it.



(iii)
there must be some evidential basis for the exercise of the
discretion: The court does not exercise the discretion on the basis
of an abstract notion of equity and the need to do justice between
the parties.



(iv)
An applicant seeking review is not expected to rush to court upon the
cause of action arising: She is entitled to first ascertain the terms
and effect of the decision sought to be impugned; to receive the
reasons for the decision if not self-evident; to obtain the relevant
documents and to seek legal and other expert advice where necessary;
to endeavour to reach an amicable solution if that is possible; to
consult with persons who may depose to affidavits in support of the
relief.



(v)
The list of preparatory steps in (iv) is not exhaustive but in each
case where they are undertaken they should be shown to have been
necessary and reasonable.



(vi)
In some cases it may be necessary for the applicant, as part of the
preparatory steps, to identify the potential respondent(s) and to
warn them that a review application is contemplated. In certain cases
the failure to warn a potential respondent could lead to an inference
of unreasonable delay.








[30] The length of time
that had lapsed between the cause of action arising and the launching
of the review is not a decisive factor although no doubt important.








[31]
The applicant was
dismissed effective 1 August 2010. He immediately filed a notice of
appeal against the dismissal. He then applied for legal aid from the
Directorate of Legal Aid and was granted same on 15 December when Mr
Kwala, an admitted legal practitioner of this court, was appointed to
represent him. According to the applicant, because of the onset of
the Christmas holidays it was not possible for him to consult with
Mr. Kwala. He therefore only met Mr Kwala in January 2011 when it was
arranged with instructed counsel, Mr Narib, to meet the applicant in
February 2011. On applicant’s own version,

therefore,
instructed counsel, Mr
Narib,
already
held instructions to act for him as early as February. Yet he
suggests that in April Mr Kwala took the view that the matter was
complex and that instructed counsel be engaged. Not only is no basis
laid for what aspect of the matter was ‘complex’ or
‘novel’
17,
but there is inconsistency in the version that instructed counsel who
had already consulted with him in February still needed to be
instructed. The applicant deposed that the appeal then pending was
withdrawn on instructed counsel's advice in March 2010 (while such
counsel still needed to be instructed) at which point apparently the
decision was taken to pursue the review.



[32] It is common cause
that the respondents were not as much as warned that anything else
was forthcoming by way of challenge. All they knew was that the
appeal was withdrawn. This court has warned in the past that
prejudice may well reside in the fact that the opponent is not warned
of an impending review. Another remarkable feature of this case is
the fact that in his founding papers the applicant gives no
reasonable explanation why he took the time he did to come to court.
He makes no suggestion that he needed to interview witnesses, that he
sought to amicably resolve the matter or that the respondents
obstructed him in any way in his search for relevant documents.








[33]
The applicant’s justification for the delay is implausible,
inherently inconsistent and improbable even on his own version and is
only explicable on the basis that the delay was due to his culpable
remissness or that of his legal representatives. I say so for the
following reasons: The applicant wants the court to accept that
instructed counsel, Mr Narib, who had been appointed allegedly on the
basis of the view taken by Mr Kwala in January 2011 that the matter
was ‘complex’ and ‘novel’ was only appointed
by the Directorate of Legal Aid on 8 April 2011. Yet the applicant
inexplicably makes the following allegations concerning his
instructed counsel’s involvement in the matter, which pre-dates
8 April 2011’s appointment: That he consulted with Mr. Narib on
3 February 2011 and again on 7 February 2010
18
when the advice was given
to withdraw the appeal, then pending.








[34] The version is
implausible and inherently improbable and inconsistent for the
following further reasons:









  1. nowhere is it specified
    just what the documents were that counsel required and in whose
    possession they where, and whether the applicant’s inability
    to access same was in any way attributable to any obstruction by the
    respondents;



  2. part of the delay is
    attributed to ‘some information’ ‘still
    outstanding, including when I was appointed to the magistracy and
    the full name of the third respondent’. On his own version,
    that information was required during May 2011 but he was only able
    to provide it during the week of 20 June 2011. Did it take that long
    to work out when the applicant was appointed and to establish the
    identity of the third respondent – the very person that
    presided over his hearing and recommended his dismissal?



  3. did it take him 11
    months to get to wherever he was to where the legal practitioner
    was? Could he not communicate by telephone or any other means? Was
    it important and necessary for him to meet his legal practitioner
    personally to elaborate on the case? Did he attempt to resolve the
    matter with the respondents amicably before resolving the issue? Did
    he ask for documents from the ‘magistracy’ which he did
    not receive promptly? Was he denied access to any other documents?
    Only he could explain these questions. He did not.









[35]
The application is fairly simple, short
19
and straightforward. It
raises no complex factual or legal issues. In it, the applicant does
not even traverse the many accusations made against him except in
respect of three counts which he says he could meet. What about the
others? In all this time after the conviction and dismissal, could he
really not have been able to provide his exculpatory version of
events so that, as the reviewing court and in the event that the only
issue that remained was whether or not condonation should be granted
for the late bringing of the review, it could assist the court
exercise its discretion? The applicant was a magistrate and the
allegations against him were, contrary to his suggestion otherwise,
quite specific and particularised. He should have been able to
prepare his defence on the information that was disclosed.








[36]
This court has held 20
that every step taken
which prolongs the bringing of a review must be reasonable in the
circumstances of the case. On the contrary, the majority of the
documents which are attached as annexures in support of applicant’s
case were already available to him when the charges were brought
against him. Mr Narib was hard pressed during argument to point me to
any additional documents that were discovered during the delay and
which delayed the application being brought. Counsel could also not
show me in what way the applicant's case was complex and required
more reflection. He conceded that the applicant's case before this
court is simply that the irregularity existed in the refusal to grant
the applicant a postponement to be assisted by a legal practitioner
and to properly prepare for his case








[37]
The authorities also establish that unreasonable delay is more
readily inferred if there has been prejudice to the decision-maker.
21
This is such a case. The
respondents have stated unambiguously that the position previously
held by the applicant had since been filled by another magistrate.
That allegation remains uncontested and must prevail on the
Plascon
- Evans
22
formula.



[38] Should I condone the
unreasonable delay? I have discretion in the matter, to be exercised
judicially. A factual basis must exist for this court to grant
condonation. In the first place, the prejudice to the respondents is
enormous given that the position had already been filled. I will
accept that there is an acceptable explanation why until 15 December,
when Legal Aid was granted to the applicant, no step towards filing
review proceedings was taken. That said, there is simply no plausible
explanation given by the applicant to form the basis for any
reasonable inference that the delay after that date (a period of
about six months) in bringing the review was necessary and reasonable
in the circumstances of this case. Even if one were to give to
applicant the benefit of the doubt, that the inaction since the
appointment of Mr Kwala was reasonable, it does not address the
prejudice suffered by the respondents as they were not warned that a
review was impending and therefore proceeded to fill the vacancy left
by the applicant.








[39] Even on the
assumption that the applicant had given sufficient reason why the
late filing of the review should be condoned (which he has failed to
do), there is no basis on which condonation should be granted because
there is no merit to the allegation that the respondents failed to
act lawfully, fairly and reasonably. I deal with that next.








[40] The applicant’s
case boils down to the simple proposition that once it became
apparent that his legal representative would not attend and that he
did not wish to proceed without legal representation, the presiding
officer was obliged to postpone the 1-2 July proceedings as requested
by the applicant. Mr Narib for the applicant argued that the refusal
to postpone the proceedings was in breach of the applicant’s
right to fair administrative action and in breach of his right under
s 26(5) of the Magistrates Courts Act. He expanded this argument by
stating that the duty to act fairly is a continuous one and applied
even on 1 July 2009 when the proceedings reconvened in the
applicant’s absence. Mr Narib argued that before proceeding
with the hearing on 1 July 2009, the presiding officer ought to have
considered the fairness of proceeding with the hearing in the absence
of the applicant. The failure to do so was unfair administrative
action and a breach of applicant’s right to a fair hearing
contemplated in s 26(5). It is his case, in addition, that he was
simply not in a position to proceed with the hearing because of
incomplete discovery. To have expected him to participate in the
hearing without complete discovery was unfair, the argument goes.








[41] It is implied in
what Mr Narib argued that the reason the legal representative was not
available was, on the one hand, not attributable to the applicant
and, on the other, immaterial and that the dominant consideration was
that the applicant wanted legal representation on account of what
were both numerous and very serious charges. He relied on Article 12
of the Namibian Constitution, in particular 12(1)(d). It bears
mention that the applicant bears the onus of proof. In addition, he
bore the evidential burden in respect of his allegations.



[42] On the Plascon-Evans
formula I must accept that enough disclosure had been made to the
applicant to enable him prepare for the hearing on 1-2 July. The fact
that the applicant was not legally represented was attributable to
failure in communication and non-cooperation between him and Legal
shield or the legal representative appointed by Legal Shield. I find
that Mr Gous had made himself available for the hearing on 29 June
but inexplicably failed to co-operate and to appear at the hearing of
29 June or thereafter on 1-3 July. The presiding officer had afforded
sufficient time for the applicant to secure legal representation and
to prepare his defence. On the Plascon-Evans test, I must accept that
the applicant while knowing that the hearing was scheduled for 1
July, failed to appear and lied about the reason for not so appearing
by stating that he had gone to Legal Shield’s office at
Ondangwa to arrange for legal representation. I must also accept that
from the word go, the applicant did not want finality to the hearing
as even at the very first hearing, and through his legal
representative Mr Van Rensburg, he refused to even plead to the
charges. The charges against the applicant were in my view
sufficiently particularised as to have enabled him to enter a plea
even on the very first day the enquiry convened. I must also accept
that the applicant avoided appearing at the hearing of 1 July 2009
and threatened to shoot those who wished to speak with him in order
establish if he was still coming to the hearing. The applicant’s
version that he had not been provided with any records of the
magistracy relating to his case is gainsaid by the third respondent
and duly confirmed, but is also at odds with his own admissions at
the hearing as reflected in the record of proceedings. The suggestion
that the witnesses to testify against him were also not disclosed is
equally untenable and stands to be rejected in view of the
respondent’s version to the contrary. He had also failed to
proof any right in terms of which the Commission was precluded from
pursuing what he called ‘dated’ charges against him.








[43]
In my view, the argument assumes some limitless right of a person
charged with misconduct under the MCA to insist on and to be granted
postponement of an investigation until the accused had resolved his
or her contractual problems with his legal insurer (Legal Shield) or
with the lawyer appointed by the insurer. I am not prepared to accept
that such a right is implied in either Article 12 of the constitution
or s 26(5) of the MCA. To demonstrate the unacceptability of this
line of reasoning,
I
must place the following on record as is apparent from the common
cause facts. The applicant was formally charged with misconduct on 18
October 2008. As he was required by the peremptory provisions of s
26(5), the presiding officer immediately set a date for hearing.
Notwithstanding those peremptory provisions the applicant (who is a
magistrate and thus not unfamiliar with the law) sought to have the
hearing postponed even before it took place. He was correctly advised
that that was not possible and that he would have to make such
request at the hearing. In the event, he showed up and the transcript
of the record shows that Mr van Rensburg addressed the hearing and
stated he was still awaiting Legal Shield instructions. He stated
that the applicant had received the charges and received some
discovery. He added that the applicant was not prepared to plead. He
asked for a postponement and it was granted. Same was granted for a
not insignificant period of 8 Months, to 29 June 2009.

By then the applicant had
the charges and had received some discovery. He does not say in his
papers what additional discovery he required and the extent to which
what he already had was insufficient to enable him prepare for the
hearing. When the hearing reconvened on 14 April 2010 the predominant
issue was again the legal representation for the applicant, the very
reason that occasioned the postponement when the matter was first
mentioned before the presiding officer. Some mention was gave
disclosure that was required but the record demonstrates that some
witnesses intended to be called in support of the charges against the
applicant were present. The record shows that the investigating
officer had spoken to someone at the applicant’s legal insurer
and was told that Mr Gous would be representing the applicant and
would be available from 1-3 July 2010.
23
The applicant, without
explaining why he had not spoken to Mr Gous in anticipation of the
scheduled hearing, maintained that as he had not yet consulted with
Mr Gous he could not proceed with the hearing.








[44] The suggestion that
a hearing into the misconduct of a judicial officer in terms of the
MCA must be subordinated to the private contractual arrangements
between the accused judicial officer and his legal insurer, only
needs to be put to be rejected. No doubt, the reasoning is inspired
by the statements made at the hearing by the applicant that his legal
insurer or the legal representative(s) appointed by the insurer to
represent him were to blame for the situation he found himself in and
that he was unable to explain their lack of cooperation considering
that he was a paid-up policy holder. One gets the impression reading
the record that the applicant somehow expected the presiding officer
to assume responsibility and to make the insurer and the appointed
legal representative comply with their obligations towards him.








[45]
The problems between the
applicant and Legal Shield or indeed between him and the lawyer
appointed by the insurer to act on his behalf, were not caused by
anything unlawful or unreasonable done by the respondents or anyone
in their employ. That is a matter entitling him to private remedies
against the insurer in terms of the contract he had with them or
against the appointed legal representative, whose conduct, as a
member of the statutory Law Society and as officer of the court, is
subject to scrutiny. What is undisputed (and I am bound to accept on
the Plascon –Evans test) is that the lawyer appointed to
represent the applicant at the hearing which he now seeks to impugn
had committed himself to appear at the hearing of 1- 3 July but at
the last minute, and rather inexcusably, decided not to come, first
suggesting that he had problems arranging a flight
24,
and later stating that he could not commit himself to applicant’s
case because he had a meeting to attend. What I find perturbing is
the applicant’s apparent lack of interest,
before
the hearing about the whereabouts of the lawyer,
or
indeed taking positive steps to contact him and to give appropriate
instructions and protesting to the insurer if he was not properly
assisted. His only contribution on the issue at the hearing was that
he had not yet consulted with his lawyer who, he said, had not yet
called him and that he wanted a postponement – a much longer
one than what the presiding officer was prepared to and in fact
granted. Not surprisingly,
the
presiding officer would have none of that and insisted that the
hearing proceed.








[46] I do not find it as
unfair or unreasonable that in the circumstances the presiding
officer refused to grant the postponement sought. The applicant
failed to make out the case that the presiding officer acted unfairly
or unreasonably.



[47]
Significantly the
applicant seeks reinstatement with repayment of his benefits. It is
doubtful if such relief is competent in a review application
25.
No explanation is given in the papers why it is not asked that the
matter be referred back for a proper hearing affording applicant his
rights which he claims were denied if the review succeeds. As the
Chief Justice stated in
Waterberg
Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment
and Tourism
26:








‘…when
setting aside a decision of an administrative authority, a review
court will not, as a general rule, substitute its own decision for
that of the functionary, unless exceptional circumstances exist.’








[48]
The Chief Justice quoted with approval the following dictum in
Masamba
v Chairperson, Western Cape Regional Committee
,
Immigrants
Selection Board
,
and
Others
27:



The
purpose of judicial review is to scrutinize the lawfulness of
administrative action in order to ensure that the limits to the
exercise of public power are not transgressed, not to give the courts
the power to perform the relevant administrative function themselves.
As a general principle, therefore, a review court, when setting aside
a decision of an administrative authority, will not substitute its
own decision for that of the administrative authority,
but
will refer the matter back to the authority for a fresh decision.

To do otherwise would be contrary to the doctrine of separation of
powers in terms of which the legislative authority of the State
administration is vested in the Legislature, the executive authority
in the Executive, and the judicial authority in the courts.’
(My
underlining for emphasis)








[49] Be that as it may,
except for three counts of absenteeism in respect of which he says he
has rebuttal evidence, the applicant does not deal at all with the
rather serious allegations of assault on a member of the public,
interfering with a police officer in the performance of his duties or
his soliciting financial assistance. The latter allegation was
confirmed under oath by Mr Greyling a legal practitioner and Ms Anne
Brandt of Trustco, while in respect of the assault on Mr Pokolo the
applicant, it is common cause, had paid an admission of guilt fine.
It appears therefore that granting condonation to the applicant and
allowing the relief he seeks will have the effect of reinstalling him
in office with such clearly unanswerable misconduct. That is not in
the public interest.








[50] In the result it is
ordered as follows:








The application is
dismissed, with costs.






































----------------------------------



P T Damaseb



Judge-President













APPEARANCES








APPLICANT: G Narib



Instructed by Kwala &
Co Inc, Windhoek








RESPONDENTS: J Ncube



Of Government Attorney, Windhoek.




1Act
3 of 2003.





2In
terms of sec 26 (4) (b).





3In
terms of sec 26 (12) (bb).





4In
terms of sec 26(17(b) (i).





5In
terms of sec 26 (17) (b) (ii).





6Minister
of Justice v Magistrates Commission and Another, Case No. SA 17/2010
(Unreported), delivered on 21 June 2012.





7This
is an admission that the applicant knew the identities of more than
five witnesses of the Commission. It is equally an admission that
certain documents were already disclosed to him.





8Appointed
in terms of s 25(1).





9In
terms of rule 53(4), the applicant may within 10 days after the
registrar has made the record available to him or her, by delivery
of a notice and accompanying affidavit, amend, add to or vary the
terms of his or her notice of motion and supplement the supporting
affidavit.





10The
common cause fact is that except for count 14 which was in any event
withdrawn, the rest of the charges allege conduct which took place
between 2007 and 2008.





11Section
(2)(a) reads: ‘The Commission must cause the charge to be
served on the magistrate charged with misconduct, together with a
statement of particulars of the alleged misconduct.’





12The
basis for this allegation is untenable, considering that on his own
version he only handed in the medical certificate on 3 April before
the ruling by the presiding officer. On his own version, the hearing
proceeded in his absence on 1 July.





13Section
26(9) of the MCA, 3 of 2003, states:



At an
investigation the magistrate charged has the right-



(a) to be personally
present, to be assisted or represented by a legal practitioner, to
give evidence and, either personally or through a legal
practitioner-



(i) to be heard;



(ii) to call
witnesses;



(iii) to cross-examine
any person called as a witness in support of the charge; and



(iv) to examine any
book, document or object produced in evidence; and



(b) notwithstanding a
denial or failure by him or her referred to in subsection (4), to
admit at any time during the investigation that he or she is guilty
of the charge, whereupon he or she must be found guilty by the
presiding officer of misconduct as charged, and subsection (11) then
applies with the necessary changes in respect of the finding’.





14The
very day on which the hearing was to proceed.





15There
is filed of record together with the opposing affidavit confirmatory
affidavits by the first and second respondents who are responsible
for the appointment of magistrates.





162011
(2) NR 437 (HC) at 450A-I.





17As
I show later, objectively assessed there is nothing complex about
the case.





18This
advice was acted upon and the appeal was withdrawn on 24 March 2011.
He deposed that he had to travel from Oshakati to Windhoek on 17
February 2011 to consult with Mr. Narib who then asked for further
documents (not specified) to draw up the papers for the review.





19Consisting
of 45 short paragraphs running to 15 pages. It is not supported by
any supplementary or confirmatory affidavits and is supported by 16
annexures (Tk 1-16) of which only two (annexures ‘TK 5’
and ‘Tk 6’) are documents which he more likely had to
source from the respondents.





20See
Disposable Medical Products (Pty) Ltd v Tender Board of Namibia 1997
NR 129 (HC) at 132E.





21See
Purity Manganese (Pty) Ltd v Minister of Mines and Energy and
Others; Global Industrial Development (Pty) Ltd v Minister of Mines
and Energy and Another 2009 (1) NR 277 (HC).





22Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).





23The
record shows that the investigating officer always knew more about
the status of the applicant’s legal representation than the
applicant himself.





24A
statement which corroborates the respondent’s Kesslau that Mr
Gous was aware of the hearing. No indication whatsoever that he was
not aware of the hearing. In fact his version is corroborated also
by Ms Miller who told Kesslau that she was not aware of any problem
with the applicant’s legal representation on that date.





25I
see no reason, ether in principle or logic why, even if it were
accepted that applicant was entitled to reinstatement, he be
absolved from the obligation to have mitigated his damages.





262010
(1) NR 1 (SC) at 31F-G.





272001
(12) BCLR 1239 (C) at 1259D-E.