Court name
Supreme Court
Case name
Minister of Justice v Magistrates Commission and Another
Media neutral citation
[2012] NASC 8
Judge
Strydom AJA




































REPORTABLE


CASE
NO.: SA 17/2010


















IN THE SUPREME COURT
OF NAMIBIA



In the matter between:














THE
MINISTER OF JUSTICE



APPELLANT








and















THE MAGISTRATES
COMMISSION


MAGISTRATE
SHAANIKA




FIRST RESPONDENT


SECOND
RESPONDENT








Coram: Strydom AJA,
Langa AJA
et
O’Regan AJA



Heard on: 06/04/2011



Delivered on: 21/06/2012











APPEAL JUDGMENT











LANGA AJA:



Introduction




  1. This is an appeal by the
    Minister of Justice (Minister) from the judgment and orders of the
    High Court (Majara AJ) delivered on the 15 July 2010. It is
    concerned principally with the interpretation and application of
    three statutory provisions, namely, sections 13, 21(3)(a) and
    26(17)(ii) of the Magistrates Act No. 3 of 2003 (the Act). In
    particular, it is about the respective roles, functions and
    responsibilities of the Minister, on the one hand and the Commission
    on the other, in the dismissal of a magistrate on the grounds of
    misconduct.









  1. The matter commenced by
    way of a notice of motion in the High Court in which the
    Magistrates’ Commission (Commission) applied for the following
    orders:








"1. Declaring that the conduct of
the Minister of Justice (Minister) in failing to take action or a
decision with regard to the dismissal of the second respondent to be
in conflict with her statutory duty under section 21(3)(a) of Act 3
of 2003;







2. Directing that the Minister
forthwith dismiss the second respondent from the position as a
magistrate and by no later than 7 days from the order of this Court,
failing which the sheriff is authorised to sign the necessary
documentation to effect the dismissal of the second respondent from
her aforesaid position.







3. Directing that the Minister
personally pay the costs of this application, alternatively, and in
the event of opposition by the second respondent, directing that the
respondents (the Minister and the 2
nd
Respondent) pay the costs of this application jointly and severally
with the (Minister’s) contribution to be made by herself
personally."







Prayer 1 was granted by
the High Court; prayer 2 was also granted, albeit in a modified form
which read –







"The 1st respondent is directed
to dismiss the 2nd respondent from the position as a Magistrate by no
later than fourteen (14) days from the order of this Court, failing
which the sheriff is authorised to sign the necessary documentation
to effect the dismissal of the second respondent from her aforesaid
position."







The Second Respondent
(Magistrate) did not oppose the application and did not take part in
either the High Court proceedings or on appeal before us. In the
course of the proceedings in the Court
a
quo
,
the Commission abandoned its prayer for costs; consequently none were
ordered.







Factual background




  1. On 11 April 2005 the
    Commission charged the Magistrate, in terms of section 26 of the
    Act, with six counts of misconduct, particulars of which are listed
    below.








"Count 1: alleged use of
derogatory language towards a staff member (Ms Amupanda) and
assaulting her;



Count 2: alleged insults and use of
derogatory language towards Mr Amunyela;



Count 3: alleged refusal to handle a
civil matter brought by Mr B. Pfeiffer, a legal practitioner;



Count 4: alleged misuse of her
position as magistrate and threatening Ms L. Mupetami;



Count 5: advertising and selling lunch
boxes at the Mungunda Street Magistrate’s Court, Katutura;



Count 6: the alleged misuse of her
position, interlinked with Count 4 involving threats made towards Ms
M Anthonissen and Ms M Van Dyk."








  1. After a number of
    postponements and delays, which were all at the instance of the
    Magistrate, the misconduct proceedings commenced in December 2006. A
    presiding officer and an investigating officer had been appointed by
    the Commission to conduct the inquiry. Further delays occurred
    which, in the result, caused the inquiry to drag on for considerably
    much longer than it should have. The hearing of evidence eventually
    proceeded on 26 October 2007. On that day, the Magistrate walked
    out and left the hearing and it proceeded and was concluded in her
    absence on 27 October 2007. The Magistrate was found guilty on the
    six charges of misconduct and was then invited to present mitigating
    factors. She declined to make any representations. The presiding
    officer thereupon submitted to the Commission the record of
    proceedings and his written statement of findings and the reasons
    therefor, as well as his recommendation for the dismissal of the
    Magistrate.









  1. In his founding
    affidavit instituting the action in the High Court, the Chairperson
    of the Commission, Mr Justice Mainga, then a Judge of the High
    Court, details the steps that were taken by the Commission following
    the report to it by the presiding officer. He states that after
    consideration of the record submitted by the presiding officer,
    including his findings and recommendations, the Commission was
    satisfied that the Magistrate had been found guilty of misconduct
    and was in fact guilty of misconduct. By reason of the nature of
    the misconduct, the Commission was further satisfied that she is no
    longer fit to hold office as a magistrate. The Commission then
    proceeded to take the steps prescribed in the Act, in particular,
    section 26(17).
    1
    It notified the magistrate in writing of its decision and afforded
    her the opportunity to resign within 14 days of receipt of the
    notice.









  1. The Magistrate did not
    resign. On 24 January 2008, the Commission submitted its
    recommendation to the Minister in writing that the Magistrate be
    dismissed from office in terms of section 21(3)(a)
    2
    with effect from 1 February 2008. According to Annexure SSM1 which
    is part of the appeal record, the Commission attached to the
    recommendation, the record and all the documents that, in terms of
    section 26(17)
    3
    had to accompany the recommendation, as well as a draft letter of
    dismissal for the Minister’s approval. The Minister, however,
    failed to respond to the Commission’s recommendation and to
    its communication to her. What then followed was an exchange of
    letters between the Commission and the Minister which, to some
    extent, give an insight into the nature of the dispute before us.








Commission’s
correspondence with the Minister




  1. The Commission sent
    follow up letters to the Minister on 5 February 2008, 7 March 2008
    and 20 March 2008 but they likewise elicited neither acknowledgement
    nor any kind of response. In the last letter the Commission
    suggested a meeting with the Minister before the end of March 2008
    to resolve the impasse. Still, there was no answer from the
    Minister.









  1. On 25 June 2008 the
    Commission received a letter from the Minister bearing the date 25
    April 2008. In it the Minister apologised for the delay in
    responding and gave as a reason the fact that she considered that
    she had to give the Magistrate the opportunity to present mitigating
    factors pursuant to the provisions of section 26(11)(a).
    4
    She asked for the “suspension” of the Magistrate to be
    stayed as she, the Minister, was busy conducting an investigation to
    determine whether to concur with the Commission’s
    recommendation. The Commission responded by letter of 26 June 2008
    disputing that the Minister was entitled to grant the Magistrate the
    opportunity to present mitigating factors to her. It pointed out
    that sections 26(17)
    5
    read with 21(3)(a)
    6
    are peremptory provisions and all she was required to do was to
    follow the recommendation and dismiss the Magistrate. The letter
    also stressed that speedy action was crucial for the credibility of
    the entire system relating to disciplinary proceedings under the
    Act. The Commission followed this up with another letter, dated 24
    July 2008 in which it pointed out that the Minister’s inaction
    had by then been unreasonably long in duration and served to
    frustrate the disciplinary hearing, the Commission and its
    recommendation. This communication gave the Minister until 30 July
    2008 to act failing which the Commission would have to decide what
    further action to take. Clearly, the Commission had by this time
    been driven to desperation.









  1. The Minister’s
    reply was received by the Commission on 1 August 2008. It stated
    that the process of dealing with the matter pertaining to the
    Magistrate commenced in April 2008. This, of course, is not
    correct, ignoring as it does the fact that the Commission’s
    recommendation was sent to the Minister on 24 January 2008 and not
    in April 2008 and also that there had been subsequent correspondence
    by way of follow-up. The Minister goes on to express “whole-hearted
    understanding” with the Commission’s frustration with
    the delay, regretted it and promised to get back to the Commission
    as soon as possible. Nothing happened in the three months that
    followed. The next communication from the Minister, dated 21 October
    2008, was received by the Commission on 26 November 2008. She again
    apologised for the delay which, she stated, was occasioned by her
    office’s reading of the documents submitted to her. She
    repeated that she considered that she had to give the Magistrate the
    opportunity to present mitigating factors to her. She said that it
    was her encounter with the Magistrate that prompted her to peruse
    the Commission’s report; and having done so, she was
    requesting further documentation and information. In a reply dated 9
    February 2009, the Commission pointed out that all the necessary
    documentation had been sent with the recommendation in the first
    place. It stated that the record of the proceedings contains the
    charges and the evidence of the persons who had complained. It
    stated that in the circumstances, it failed to see the relevance of
    submitting the actual complaints filed against the Magistrate or the
    details of the investigation conducted against her. However, in an
    attempt to bring the matter to finality,
    ex
    abundante cautela

    as the Commission put it, the further documents asked for by the
    Minister were attached to the reply.









  1. I have gone through the
    above chronology of correspondence in some detail because of its
    implications on the submissions made at both the High Court and this
    Court on appeal. In the first place, it should be noted that no
    explanation, reasonable or otherwise, is given by the Minister for
    the delay to comply with the Commission’s recommendation or to
    give the Commission any response to the letters written to her
    during the period from 24 January 2008 to 25 April 2008. That was a
    critical period in light of the Commission’s recommendation
    that the Magistrate be dismissed with effect from 1 February 2008.
    Instead, nothing happened; the recommendation and follow-up letters
    in this period evidently received no attention at all. In her
    answering affidavit, the Minister has this to say about this period:
    while admitting that the Commission had submitted its recommendation
    on 24 January 2008, it was received by her office “during that
    time of the year when many people were still on holiday” and
    she, herself, did not have a secretary and was “probably”
    on leave. She states that she only saw it after she had held a
    meeting with the Magistrate on 25 April 2008 at the latter’s
    request. This is, to say the least, a disappointing and
    unsatisfactory response to what is an extremely important matter
    affecting the administration of justice. During the period May to
    end of June 2008, according to the Minister, she had suffered a
    family bereavement and any inactivity during that period can be
    explained away on the basis of an understandable leave period.
    There is nothing, however to explain why the Commission’s
    recommendation had not been carried out timeously. From the
    perspective of an effective disciplinary process, the disclosure
    that for a period of some three months the Ministry and Government
    offices were in a state of virtual limbo, awaiting the time when
    people would have returned from holiday, is simply unacceptable.
    Ministries and Government offices simply do not operate on that
    basis.









  1. The picture however gets
    worse. In her letter dated 21 October 2008 received by the
    Commission on 26 November 2008, the Minister ascribes the delay,
    presumably she means the further delay beyond the end of June 2008,
    to the fact that her office was busy reading the documents submitted
    to her in terms of the Act and that she was conducting an
    investigation to determine whether or not to concur with the
    Commission’s recommendation. In her answering affidavit in
    the High Court, she also states that she is not to blame for the
    delay and blames the Commission for having failed to furnish her
    with all the documents that she required to address the issue before
    her. It will be recalled that mention of further documents required
    by the Minister was not made in her earlier letters to the
    Commission in particular, in her letter dated 25 April 2008 and
    received by the Commission on 25 June 2008.









  1. First mention of the
    absence of further documents the Minister might require was made by
    letter dated 1
    st
    August 2008, some seven months down the line. Elsewhere she states
    that on 1 July 2008 she instructed a legal officer attached to the
    Ministry of Justice’s Directorate of Legal Advice, to request
    all documents relating to the dismissal of the Magistrate from the
    Commission’s secretary. She instructed him to scrutinize the
    documents. It is not clear why she gave this instruction. She
    states that the legal officer requested from the Commission’s
    secretary “the full record of the disciplinary hearing and all
    relevant documents excluding those that had already been submitted”
    to her. She states that the transcript of the record of proceedings
    at the investigation and copies of the documents that were submitted
    together with the recommendation were furnished following the legal
    officer’s request. What seems obvious from all this is that
    as the weeks and months went by without action by the Minister on
    the Commission’s recommendation, she already had much more
    documentation on the investigation and the inquiry into the
    Magistrate’s misconduct than she was entitled to in terms of
    section 26(17)(b)(ii). That provision relates to a function given
    to the Commission and not to the Minister. The documents would have
    been irrelevant for the purposes pertaining to the role and function
    the Minister was required to fulfil.









  1. Finally, if the
    documents that had allegedly not been submitted were a factor at
    all, the Minister would reasonably have been expected to mention
    that fact immediately after receiving the Commission’s
    recommendation. The revelation that there are documents which had
    not been included, and which caused a delay in responding to the
    recommendation is further not consistent with the apology the
    Minister had already offered to the Commission for the delay, and
    the admission that she had at that time "mistakenly"
    believed that the Magistrate had to be given an opportunity to make
    representations. It also transpires that after the requested
    documents had been submitted to the Minister, she had still not
    complied with the Commission’s recommendation at the time of
    the hearing of the application in the High Court, on 19 April 2010,
    and hence the application for a
    mandamus.
    This translates into a more than considerable delay which remains
    unexplained, at any rate satisfactorily, on the record.









  1. All this prompted
    counsel for the Commission to describe the request for further
    documents as merely a "shifting of responses". It disputed
    the Minister’s contentions that section 13(1) confers on the
    Minister the power to hold a re-hearing of the inquiry or to review
    the findings of the Commission, or that it was the cause of the
    delay in reaching finality of the matter. The High Court, noting the
    inconsistencies in these requests and explanations, quite correctly
    in my view, rejected them as a lame excuse or red herring to
    "further delay the inevitable outcome". I agree with the
    observation in the Commission’s last letter of 9 February 2009
    that it is disturbing that up to that time a whole year had elapsed
    since its recommendation should have taken effect. By that time the
    Minister had expressed her apologies several times without doing
    anything about it.









  1. The inordinate delay
    gives, in my view, a clue as to the real reason why the Minister has
    failed to act in terms of the Commission’s recommendation. It
    all has to do with her understanding of her role and functions in
    the dismissal of a magistrate. It is to that aspect that I now
    turn.








The dispute




  1. The essence of the
    dispute concerns the manner in which the Minister and the Commission
    see their respective roles, responsibilities and functions, in
    particular, in the dismissal of a magistrate on grounds of
    misconduct. The Commission contend that the provisions of section
    26(17)(11)
    7
    read with section 21(3)(a)
    8
    are mandatory. It has been consistent in it disputing the
    Minister’s contentions that section 13(1) confers on the
    Minister the power to hold a re-hearing of the inquiry or to review
    the findings of the Commission, or that it was the cause of the
    delay in reaching finality of the matter. It contends, as it has
    done from the beginning, that following its recommendation that the
    Magistrate who has been found guilty of misconduct must be
    dismissed, the Minister has no discretion but must dismiss the
    Magistrate. In this case the Minister had failed to carry out the
    Commission’s recommendation, hence the approach to the High
    Court for an order compelling her to do so.









  1. The contention advanced
    on behalf of the Minister is that section 21(3)(a)
    9
    requires her to apply her mind to the matter to determine whether or
    not the Magistrate is guilty of the allegations of misconduct for
    which she was charged. Accordingly, the Minister is entitled to
    re-consider the charges against the Magistrate before agreeing to
    dismiss her. Her role is not a purely mechanical one, to simply
    rubber–stamp the recommendation of the Commission but to
    actively participate in the decision whether the magistrate should
    be dismissed or not. That is why the Commission is required to
    submit, together with its recommendation, the record of its
    proceedings at the investigation, and all comments and
    representations made in terms of section 26(11)(b)
    10,
    (14)
    11
    or (15)
    12,
    as well as all aggravating or mitigating factors. While the Act
    does not expressly authorise her to conduct an investigation to
    determine whether or not to agree with the Commission’s
    recommendation, there is no express prohibition against the Minister
    from doing so in order to satisfy herself “about the
    lawfulness, validity and regularity of the recommendation".
    This line of thinking explains why the Minister took it upon herself
    to grant the Magistrate an interview on 25 April 2008, unilaterally,
    and in the absence of the Commission, to afford the Magistrate an
    opportunity to make representations to her.









  1. Citing the decision in
    Masetlha
    v President of the Republic of South Africa and Another
    13
    (
    Masetlha)
    as authority, it was argued that in terms of the common law,
    whenever a statute expressly confers powers on the executive
    authority to appoint a public functionary but is silent or ambiguous
    as to the dismissal of such functionary, the power to appoint
    necessarily implies the power to dismiss. The proposition advanced
    was that inasmuch as section 13(1) of the Act confers the power to
    appoint magistrates on the Minister, it follows that she is also
    clothed with the power to make the decision to dismiss them.









  1. In light of the above,
    the issue before this Court is to determine the proper demarcation
    of the roles, powers, responsibilities and functions of the Minister
    on the one hand and the Commission’s on the other. It will
    accordingly be convenient to examine the dispute against the
    background of its legislative and constitutional setting.








The statutory and
constitutional setting




  1. The purpose of the Act
    is reflected in its preamble as being –








"... to provide for the
establishment, objects, functions and constitution of a Magistrates
Commission; to provide for the establishment of a magistracy outside
of the Public Service; to further regulate the appointment,
qualifications, remuneration and other conditions of service of, and
retirement and vacation of office by magistrates; ..."







The establishment of the
magistracy outside of the Public Service is consistent with and is in
furtherance of the principle of the independence of the judiciary
which is enshrined in Article 78 of the Namibian Constitution.
14
The Act came about following the judgment of this Court in
Mostert
v Minister of Justice

2003 NR 11 (SC) (
Mostert)
wherein it was held, in effect, that the pre-independence situation
regarding the power to appoint, transfer and dismiss magistrates,
which had been vested in the Minister, has been removed. This change
ensures that the independence of the judiciary, in this case the
institution of the magistracy, is enhanced and brought into line with
the Constitutional ideal. As was held by Chaskalson CJ in
Van
Rooyen and others v The State and Others
,
2002(5) SA 246 (ZACC/2002/8) (
Van
Rooyen
),
“[j]udicial officers must act independently and impartially in
the discharge of their duties.”
15
In
De
Lange v Smuts NO and Others
,
1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) O’Regan J,
expanding on the same theme, points out that the courts in which
magistrates hold office must exhibit institutional independence.
That involves independence in the relationship between the courts and
other arms of government.
16








  1. In assessing
    institutional independence, however, it would be wise to heed the
    cautionary remarks of Chaskalson CJ in the
    Van
    Rooyen
    17
    matter referred to by Strydom CJ, in
    Mostert
    that –








Bearing in mind the diversity
of our society this .... injunction is of particular importance ....
The well informed, thoughtful and objective observer must be
sensitive to the country’s complex social realities, in touch
with its evolving patterns of constitutional development, and guided
by the Constitution, its values and the differentiation it makes
between different levels of courts. Professor Tribe’s comment
on the separation of powers ... seems especially relevant in this
regard:







What counts is not any abstract
theory of separation of powers, but the actual separation of powers
"operationally defined by the Constitution". Therefore,
where constitutional text is informative with respect to a separation
of powers issue, it is important not to leap over that text in favour
of abstract principles that one might wish to see embodied in our
regime of separated powers, but that might not in fact have found
their way into our constitution’s structure.'







This comment seems to be particularly
appropriate when considering what the objective observer might
conclude about the independence of the magistracy.”












  1. Namibia is a
    constitutional democracy that upholds the doctrine of separation of
    powers
    18
    the rule of law
    19
    and the independence of the judiciary
    20.
    These principles presuppose a culture of mutual respect between the
    Executive, the Legislature and the Judiciary. Given the relationship
    between the judiciary and the Minister, she would be especially
    expected to accord such assistance as the judiciary might require to
    protect its independence, dignity and effectiveness.
    21
    It follows that the importance of treading carefully when dealing
    with the respective roles, powers and functions of the arms of the
    State, particularly in so far as they relate to and interact with
    one another cannot be over-emphasized. In this case, the Commission
    is not the judiciary but it is charged with specific functions in
    relation to the magistracy, an important part of the judiciary, to
    enhance and maintain its independence and effectiveness. The role
    and functions allocated to the Minister by the Constitution and any
    other law, particularly in so far as they have a bearing on the
    independence, dignity and effectiveness of the judiciary must
    accordingly be strictly complied with. Likewise, the functions and
    role of the Commission, in so far as they have a bearing on the
    judiciary’s independence, dignity and effectiveness, must not
    be compromised.









  1. The Commission is
    established pursuant to the provisions of section 2
    22
    of the Act. Section 3 provides that the objects of the Commission
    are –








"(a) ... to ensure that the
appointment,
promotion, transfer
or
dismissal
of, or
disciplinary steps against magistrates take place without favour or
prejudice ... (the emphasis is mine);







(b) ... to ensure that no influencing
or victimization of magistrates takes place; ..."












  1. Section 13 provides that








"(1) The Minister may, on the
recommendation of the Commission but subject to subsection (2),
appoint as many magistrates as there are posts on the permanent
establishment of the magistracy.







(2) No person may be appointed under
subsection (1) as a magistrate unless such person –








  1. ...



  2. ...



  3. is certified by the Commission to be
    in all respects suitable for appointment as a magistrate.









  1. The appointment of every magistrate
    must be effected on such contract of employment, not being
    inconsistent with this Act, as the Minister may approve on the
    recommendation of the Commission."













  1. Section 21(3) states -






"If the Commission –








  1. In terms of section 26(17)(ii)
    recommends to the Minister that a magistrate be dismissed on the
    ground of misconduct; or









  1. ...








the Minister must dismiss the
magistrate from office."












  1. Section 26(17) provides








"If,
after consideration of –








  1. the record of the proceedings at the
    investigation (including the finding and recommendation of the
    presiding officer) and all comments and representations made in
    terms of 11(b), (14) or (15), if any, as well as all aggravating or
    mitigating factors; or









  1. where applicable, any representations
    made under subsection (3)(a),








the Commission is satisfied that a
magistrate found guilty of misconduct ... is in fact guilty of
misconduct and that by reason of the nature of the misconduct in
question that magistrate is no longer fit to hold office, the
Commission must –








  1. notify the magistrate in writing of
    its decision and afford him or her an opportunity to resign within
    14 days of receipt of the notice; and









  1. if that magistrate refuses or fails
    to resign within the period mentioned in paragraph (i), make a
    written recommendation to the Minister that the magistrate be
    dismissed from office in terms of section 21(3)(a) and submit,
    together with the recommendation, such record, comments,
    representations and other relevant documents to the Minister."









  1. The respective roles of
    the Minister and the Commission can be determined on a proper
    interpretation of the words "may" and "must" as
    used in sections 13 and 21(3)(a). In terms of what is commonly
    referred to as the cardinal rule of interpretation, where the words
    of a statute are clear, they must be given their ordinary, literal
    and grammatical meaning unless it is apparent that such an
    interpretation would lead to manifest absurdity, inconsistency or
    hardship or would be contrary to the intention of the legislature.
    In that instance, "... there is no room for applying any of the
    principles of interpretation which are merely presumptions in cases
    of ambiguity in the statute".
    23









  1. I proceed to apply the
    interpretive rule to the words of the statute. Section 13 provides
    for the appointment of magistrates. The recommendation or
    certification of the Commission is a condition precedent to the
    appointment of a magistrate by the Minister. The provision then
    clothes the Minister with a discretion through the use of the phrase
    “may appoint”. But the power to appoint in section 13,
    which is discretionary and subject to the Commission’s
    recommendation, in no way implies a similar discretion when the
    Minister is required to dismiss a magistrate on the grounds of
    misconduct. Section 21(3)(a) provides that on a recommendation by
    the Commission that the magistrate found guilty of misconduct be
    dismissed, the Minister
    must
    dismiss the magistrate from office. The words are, in my view, clear
    and unambiguous and should therefore be given their simple ordinary
    meaning. In its most basic meaning, the word
    must
    is obligatory and does not give the Minister a choice or a
    discretion not to dismiss.









  1. It
    is clear that the process established in the Act takes the decision
    to dismiss a magistrate out of the hands of the Minister. Her
    view
    that she has to, as it were, "rehear" the inquiry is
    misconceived and has no basis at all in law. She is not called upon
    to ”concur" or otherwise with the Commission’s
    recommendation.
    Removing
    this power from the Minister is consistent with the reasoning in
    Mostert
    and is in tune with the Constitutional ideal of judicial
    independence. It follows therefore that the power to determine
    whether a magistrate’s conduct constitutes a ground for
    dismissal now resides, in the first instance with the Commission. An
    appeal, at the instance of the aggrieved magistrate, lies to the
    High Court.









  1. The
    power of the Minister in terms of section 21(3) is very narrow. She
    does not have the power to disagree with the determination by the
    Commission and the High Court on the substantive question whether
    there are grounds for the removal of the Magistrate. That is an
    issue reserved first for the Commission and then the court. Her role
    is only to make sure that the decision referred to her is indeed a
    decision of the Commission. In order to perform this narrow power,
    the Act requires that the record, reasons, representations and
    comments are forwarded to her.
    The
    view that section 21(3)(a) provides for a dual decision-making
    process was accordingly correctly rejected by the High Court.
    Given
    that one of the tasks of the Minister is to uphold the independence
    and integrity of the courts, she should exercise the powers
    conferred upon her by section 21(3) promptly and efficiently. In
    this she has failed.









  1. It is moreover not
    correct that this is an instance where a statute, having expressly
    conferred powers on the executive authority to appoint a public
    functionary, is silent or ambiguous as to the dismissal of such
    functionary. Invoking the decision in
    Masetlha
    is inappropriate; that case is clearly distinguishable on the facts.
    The Court in that case was dealing with a challenge to the
    dismissal by the President of the Republic of South Africa of the
    Director-General of the National Intelligence Agency. It was
    contended on behalf of the Director-General that, whilst the
    President had the power to appoint the public functionary, he did
    not have the power to dismiss him in terms of the Constitution. The
    Court however, held, by a majority, that the President indeed has
    the power to appoint
    24
    and then proceeded to read in the power to terminate the employment
    of the applicant in terms of section 209 of the Constitution read
    with section 3 of the Intelligence Services Act. The position here
    is different. In this case there is no silence or ambiguity of the
    legislation in providing for the dismissal of a public functionary.
    The Act states explicitly how the dismissal should take place,
    namely, that on the recommendation of the Commission to that effect,
    the Minister
    must
    dismiss the magistrate. The Court is therefore not called upon to
    read into the words of the Act an implied power to dismiss.









  1. I am accordingly
    unpersuaded that the judgment and orders given by the High Court are
    assailable. The Minister’s appeal accordingly falls to be
    dismissed.








Order




  1. The appeal is dismissed.




















________________________



LANGA, AJA















I concur



















________________________



STRYDOM, AJA















I concur



















________________________



O’REGAN, AJA


































COUNSEL
ON BEHALF OF THE APPELLANT
:


Instructed
by
:






Mr.
S. Akweenda


Government
Attorney



COUNSEL
ON BEHALF OF 1
ST
RESPONDENT
:


Instructed
by
:



Mr.
T.J. Frank, SC


Legal
Assistance Centre








1
See para [26] infra.





2
See para [25] infra.





3
See para [26] infra.





4
26(11)(a) requires that at the conclusion of the investigation,



"... the presiding officer must make a finding on the charge
and inform the magistrate concerned whether he or she is guilty or
not guilty of misconduct as charged and, in the case of a finding of
guilty, afford that magistrate an opportunity to –




  1. state any mitigating factors;



  2. ... "






5
See para [17] infra.





6
See para [25] infra.





7
See para [22] infra.





8
See para [22] infra.





9
See para [22] infra.





10
See para [26] infra..





11
Section 26(14) provides –



"A magistrate found guilty of misconduct who feels aggrieved by
the finding of the presiding officer may, within 14 days of receipt
of a copy of the record, statement, reasons and recommendation in
terms of subsection 13, make written representations to the
Commission, and must, when so making representations, also transmit
a copy thereof to the presiding officer."





12
Section 26(15) states –



"On receipt of a copy of the representations in terms of
subsection (14), the presiding officer must promptly furnish the
Commission with his or her comments thereon."




13
2008 (1) BCLR (CC) 1.





14
Article 78(2) of the Constitution on Namibia provides that courts
shall be independent, subject only to the Constitution and the Law.
See also Mostert v Minister of Justice 2003 NR 11 (SC).





15
At paragraph 31.





16
At paragraph 69.




17
At p. 273 C-D





18
See Article 1(3) of the Constitution.





19
See Article 1.





20
See Article 78(2).





21
Article 78(3) of the Constitution states – "No member of
the Cabinet or the Legislature or any other person shall interfere
with Judges or judicial officers in the exercise of their judicial
functions, and all organs of State shall accord such assistance as
the Courts may require to protect their independence, dignity and
effectiveness, subject to this Constitution or any other law."




22
Section 2 provides: "There is established a commission, to be
known as the Magistrates Commission, with the powers and duties
conferred or imposed on the Commission by or under this Act or any
other law."




23
Per Scott L.J. in Croxford v Universal Insurance Co. Ltd
[1936] 2 K.B. 253 at 281.





24
Section 209(2) of the South African Constitution provides as
follows:



"The President as head of the national executive must appoint a
woman or a man as head of each intelligence service established in
terms of subsection (1), and must either assume political
responsibility for the control and direction of any of those
services, or designate a member of the Cabinet to assume that
responsibility."