Court name
High Court Main Division
Case number
APPEAL 353 of 2013
Title

Aupindi v Magistrate Shilemba (APPEAL 353 of 2013) [2016] NAHCMD 21 (12 February 2016);

Media neutral citation
[2016] NAHCMD 21
Coram
Miller AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


In
the matter between:


Case
no: A 353/2013


DATE:
12 FEBRUARY 2016


TOBIA
AUPINDI...................................................................................................FIRST
APPLICANT


ANTONIO
DI
SAVINO....................................................................................SECOND
APPLICANT


And


MAGISTRATE
HELVI
SHILEMBA...............................................................FIRST
RESPONDENT


ARIE
HUSSELMAN....................................................................................SECOND
RESPONDENT


MINISTER
OF
JUSTICE................................................................................THIRD
RESPONDENT


CHAIRPERSON
OF THE MAGISTRATE’S COMMISSION...............FOURTH
RESPONDENT


PROSECUTOR-GENERAL
OF NAMIBIA...................................................FIFTH
RESPONDENT


ANTI
CORRUPTION COMMISSION OF
NAMIBIA.................................SIXTH
RESPONDENT


DIRECTOR
OF THE ANTI-CORRUPTION


COMMISSION
OF
NAMIBIA..................................................................SEVENTH
RESPONDENT


INSPECTOR
GENERAL OF THE NAMIBIAN POLICE.......................EIGHTH
RESPONDENT


ATTORNEY-GENERAL
OF
NAMIBIA........................................................NINTH
RESPONDENT


Neutral
citation: Aupindi v Magistrate Shilemba (A 353/2013)[2015]
NAHCMD 21  (12 February 2016)


Coram:
MILLER AJ


Heard:
21 September 2015


Delivered:
12 February 2016


Flynote:
Review – Review of pending Criminal Proceedings – Role of
Appeal court not to interfere with unterminated course of proceedings
in a court below – Court will only do so in rare cases where
grave injustice might otherwise result or where justice might not by
other means be attained – Court will hesitate to intervene,
especially having regard to the effect of such a procedure upon the
continuity of proceedings in the court below, and to the fact that
redress by means of review or appeal will ordinarily be available –
Review application dismissed, matter referred back for continuation
of trial.


ORDER


1.
The review application is dismissed with costs.


2.
The matter is referred back to the Magistrate’s court to
proceed with the criminal trial against the applicants.


JUDGMENT


MILLER
AJ:


[1]
The applicants in this matter brought a review application in terms
of the old rule 53 of the Rules of the High Court calling upon the
respondents to show cause why an order in the following terms should
not be granted:


1. That
the criminal proceedings conducted before the first respondent under
case number WHK-CRIM 26731/11, in the Magistrate’s Court for
the District of Windhoek, held at Windhoek (‘the proceedings)
should not be set aside or reviewed and set aside with immediate
effect, and with the effect that the applicants are acquitted on all
the charges proffered against them in the proceedings.


2. In the
alternative to prayer 1 above, that the applicants shall be released
from the proceedings and any prosecution in terms thereof and to the
effect that:


2.1
They are acquitted on all charges proffered against them in and under
the proceedings; or


2.2
A permanent stay of prosecution be granted in respect if the charges
against the applicants in and under the proceedings.


3.
In the further alternative to prayers 1 and 2 supra:


3.1
That the first respondent’s decision not to recuse herself as
the presiding magistrate in and over the proceedings, be reviewed and
set aside by the above Honourable Court, alternatively that such
decision be declared null and void as being in conflict with the
Namibian constitution and be set aside on that basis;


3.2
That the above Honourable court decides that the first respondent
recuses herself from presiding in and over the proceedings and that
any decision taken by her not to recuse herself as presiding
magistrate in the proceedings, be substituted by the aforementioned
decision taken by this Honourable Court;


3.3
Alternative to prayers 3.1 and 3.2 above (and only in the event that
it be found that the first respondent has not yet taken a decision in
respect of the application made in the proceedings for her recusal),
that the first respondent be directed to recuse herself as presiding
magistrate in the proceedings.


4. That costs of
this application be awarded against those respondents electing to
oppose same, which shall include the costs of one instructing and two
instructed counsel. In the event of more than one respondent opposing
the application, such costs are sought against all such respondents
electing to oppose the application, jointly and severally, the one
paying, the other to be absolved.’


[2]
The review application stems from criminal proceedings that are
pending before the first respondent in which the applicants are
charged by the 6th respondent in terms of the
Anti-Corruption Act, 2003 on charges of Providing false information
to an authorised officer in contravention of s 29 (1)(d) read with s
1,3,22,23,24,25,26,27,28,29 (3) and 51; and Attempting to defeat or
obstruct the course of justice. The applicants pleaded not guilty to
the charges and a trial commenced in the Magistrates’ Court.
After the closing of the State’s case, the defence brought an
application in terms of s 174, to be discharged at the close of the
State’s case, which was dismissed by the first respondent on 24
February 2012. Thereafter, the applicants brought an application for
the recusal of the presiding officer on the basis that there is a
likelihood of bias from the presiding officer towards the applicants,
to which the magistrate then refused to recuse herself.


[3]
These occurrences were then followed by the review application before
this court which in actual fact is aimed at reviewing the decision of
the first respondent not to recuse herself from the criminal
proceedings. The grounds for review are summed up in paragraph 63 of
the founding affidavit as follows:


a)
That the first respondent failed to properly apply her mind to the
recusal application and failed to properly consider and apply the
legal principles applicable to such an application;


b)
That the first respondent failed to take into account relevant
considerations in deciding the recusal application, and took into
account irrelevant considerations;


c)
That there is a reasonable apprehension of bias on the part of the
first respondent. In light of information conveyed to the applicants,
the first respondent also has an interest in the outcome of the
criminal trial in respect of which she is presiding; and


d)
That gross irregularities occurred in the proceedings.’


[4]
As a ground to sustain the recusal of the first respondent is that
the due process is tainted with irregularities that are contrary to
article 12, 18 and 25 of the Namibian Constitution. It is on these
grounds that the applicants seek the setting aside of the criminal
proceedings or in the alternative, that they may be acquitted on all
charges preferred against them. Such a request was denied by the 5th
respondent, hence the review application. Secondly, the applicants’
review application is based on alleged conduct by the first
respondent, i.e. her posture during the s 174 application perceived
by the applicant to sustain a determination that the prosecution
against the applicants proceeds; that the first respondent has
potentially become personally involved in the matter in that
statements were made in public and in front of staff members of the
3rd respondent to the effect that the first respondent
would make sure that the first applicant ‘will go to jail’.
It is further alleged by the applicants that the first respondent is
supported by a ‘group of powerful people that wants to ‘fix’
the first applicant and will make sure that he goes to jail.
Allegations were also brought forth that the first respondent was
seen to be conversing with key witnesses in the case. No witnesses,
nor affidavits were however handed up in support of such allegations.


[5]
The applicants are therefore of the opinion that the first respondent
would not be impartial in handling the case and many not make
credibility findings in respect of witnesses that may implicate her.
It is on these grounds that the applicants hold a reasonable
apprehension of bias on the part of the first respondent.


The
answering papers


[6]
The second respondent, who is the prosecutor in the criminal case,
deposes to an affidavit and states that after the s 174 application
was dismissed, the applicants, defence in the criminal case opened
their case and in fact called two witnesses to testify on behalf of
the applicants. Accordingly, statements were also handed in as
evidence but lacks evidential value since the authors did not testify
orally as required by s 213 of the CPA and in the absence of such
evidence, the first respondent could not make a decision on whether
to recuse herself or not. The deponent states that what the
applicants did was not in compliance with the CPA and that the
decision not to recuse herself was justified in the circumstances
where there was no evidence before court to prove the necessary
allegations.


[7]
Second respondent further objected to the application on the basis
that no notice was given to the State to consider its position and
that the affidavits before court in support of the application were
not properly commissioned, and did not amount to any evidence before
court. Second respondent further submitted that the applicants acted
recklessly in preparing witness statements that has defamatory
statements against both the first and second respondent and not
allowing the witnesses to testified when subpoenaed on instructions
of the first respondent. The withdrawal of counsel representing the
applicants just before the witnesses could testify and being on
record again for the review application does not support a desperate
applicant who is prejudiced in the circumstances. The allegations by
the applicants as to the public statements made by the first
respondent were denied by the typist, one Rosina Shikalepo.


[8]
The fifth respondent also deposed to an affidavit in support of what
has been stated by the second respondent. Additionally, the first
respondent states that the applicants did not prove reasonable
suspicious of bias on a balance of probabilities and that none of the
applicants has a reasonable perception of bias and mere allegations
should not be a ground for recusal but should be based on concrete
evidence, which the applicants did not provide. Accordingly, the
normal remedy would be to appeal against the decision at the end of
trial and not to load superior court with interlocutory proceedings
pending the criminal trial. Fifth respondent states that the
applicants did not show that grave injustice would result if this
court does not interfere or that gross irregularity exist which is
likely to cause prejudice to the applicants. Fifth respondent
clarifies that a wrong judgment does not amount to an irregularity
and remedies such as appeal and reviews at the end of the case are
always available to the applicants. Furthermore, it is stated that
the applicants did not clarify their position as to what exactly is
being reviewed and in any event did not comply with s 302 and 304 of
the CPA and the grounds for review do not fall under any of the
grounds provided by s 20 of the High court Act.


[9]
As regards the relief for stay in prosecution, the fifth respondent
states that an application should have been brought before a
competent court which can be granted if the applicants can prove that
the trial has not taken place within a reasonable time and that there
is irreparable trial prejudice as a result or other exceptional
remedy justifying such a remedy
. Such
application has not been brought before any court.


[10]
An officer on behalf of the Anti-corruption commission deposed to an
affidavit on behalf of the sixth and seventh respondent as regards
the investigations and the charging of the applicants and denies that
the charges are meritless and that since the applicants have not
closed their defence case, they are not entitled to judgment. The
deponent states that the investigation was done properly, fairly and
impartially and that the matter was referred to the fifth respondent
for a decision to prosecute or not. Accordingly, the applicants’
rights in terms of article 12 of the Namibian Constitution were not
affected by the investigation and if the contrary is proven, such
would be dealt with by a trial court in a trial-within-a-trial.


Review
of pending proceedings of inferior courts


[11]
From the papers, the applicants are asking this court to review the
criminal proceedings that has since commenced before the lower court
and the first respondents decision not to recuse herself,
alternatively for the high court to order that the first respondent
recuse herself.


[12]
The High Court does have its inherent jurisdiction to interfere with
the proceedings still pending in a magistrate’s court. Apart
from its general, overriding jurisdiction to prevent abuse of its
process, the court has inherent power to make orders furthering the
administration of justice only when a statute or rule of court is
silent.[1] The High court is
however very reluctant to interfere with uncompleted proceedings in
an inferior court and it will do so only in exceptional instances,
where serious injustice would otherwise occur or where justice cannot
be attained by other means.[2]
Intervention on review will be justified in the case of gross
irregularity which has caused, or is likely to cause, prejudice to
the applicant.[3] It is
therefore trite that, a superior court will hesitate to intervene,
especially having regard to the effect of such a review procedure
upon the continuity of proceedings in the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available after a decision is made.


[13]
The court in
Wahlhaus
and others v Additional Magistrate, Johannesburg and Another
[4]
observed that the prejudice, inherent in an accused's being obliged
to proceed to trial, and possible conviction, in a magistrate's court
before he is accorded an opportunity of testing in the High Court the
correctness of the magistrate's decision overruling a preliminary,
and perhaps fundamental, contention raised by the accused, does not
per se necessarily justify the High Court in granting relief before
conviction. Accordingly, each case falls to be decided on its own
facts and with due regard to the salutary general rule that
appeals/reviews are not entertained piecemeal. The court further
observed in the case of
The
State v Bailey and Others
[5]
that the decision whether or not to exercise the power to review will
depend upon the facts of the case, and particularly the question of
prejudice if it is not exercised. The type of irregularity relied on
will also be relevant. In that case, the court set aside a
magistrates’ decision not to recuse himself from a pending
criminal trial after it was established that the judicial officer had
personal knowledge of many of the important facts in issue in a case
in which he will be presiding.[6]


[14]
As in the present case, interference is therefore desirable if the
application for recusal is well founded since an order that a
magistrate recuse himself midway through a criminal trial intrudes on
the trial court in the most radical fashion imaginable by terminating
the presiding officer’s warrant to preside. Yet if the
circumstances oblige, such an abrogation of judicial functioning
would be justified. The test to be applied is not actual bias but
whether there is, by reason of the allegations made by the
applicants, a real likelihood of bias, or whether a reasonable man
may form the impression that the trial will not be a fair one.


[15]
The applicants allege that there is a reasonable apprehension of bias
on the part of the first respondent. The first respondent obviously
did not accept that and  refused to recuse herself. She
considers that she will preside over the matter impartially and in
keeping with the office she holds. On the facts before me, I cannot
conclude that her conclusions are unjustified. Moreover it may be
that the applicants will be acquitted. Given the fact that the kind
of relief sought is given in rare cases, this case does not strike me
as one of those.


[16]
It is further sufficient to say that nothing was put before the court
in argument to show that any grave injustice or failure of justice is
likely to ensue if the criminal trial against appellants proceeds
before the first respondent. An application was not brought for the
stay in prosecution as required by law and if prejudice, both
financially, socially and reputational and emphasised by the second
applicant in his affidavit is the pillar for this review application,
it would be prudent for the applicants to present their case and have
the matter finalised. Remedies of appeal and review would in that
event be available to the applicants.


[17]
It is thus justified to remit the matter back to the magistrate’s
court for the criminal trial to be finalised and it is so ordered.


Order


1.
The review application is dismissed, with costs.


2.
The matter is referred back to the Magistrate’s court to
proceed with the criminal trial against the applicants.


PJ
Miller


Acting


APPEARANCES


1st
APPLICANT: R Metcalfe


Of
Metcalfe Attorneys, Windhoek



 


2nd
APPLICANT LH Du Pisani Of Du Pisani Legal Practitioners, Windhoek


1st
RESPONDENT: O Sibeya


Of
Sibeya & Partners, Windhoek


2ND
-9TH RESPONDENTS G Boonzaier


OF
Government Attorney, Windhoek



[1]
Cillers, AC
et
al
.
2014.
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa.

Cape Town: Juta, p 1270.




[2]
Van der Berg v Chairman of the Disciplinary Committee (Oranjemund of
C D M (Pty) Ltd) and Others 1991 NR 417 (HC). See also Van
Tonder v Kilian NO en Andere 1992 (1) SA 67 at 74E-F.




[3]
Katjivikua v The Magistrate: Magisterial District of Gobabis and
Another 2012 (1) NR 150 (HC) at 59, para 24. See also Van Tonder v
Kilian NO en Andere 1992 (1) SA 67 at




[4]
1959 (3) SA 113 (A) at 120C-E.




[5]
1962 (4) SA 514 (E) at 516A.




[6]
1962 (4) SA 514 (E) at 517.