Namibia: Bending a little bit backwards

21 September 2018 · Carmel Rickard

LAY litigant Ronald Somaeb was in over his head when he attacked the right of any Namibian judge to hear the case in which he was suing the chief justice: all judges would be thinking “about (their) boss, the chief justice” and would be biased in favour of the CJ, he said. Somaeb's efforts came to nothing, however, and his case has been dismissed as vexatious and frivolous.

In Namibia the challenge to the chief justice came from lay litigant Ronald Mosementla Somaeb. The first round of his fight with the judiciary concerned a house, owned by the bank, from which he was evicted.

In this case the high court noted, “It has been the practice of this court to bend a little bit backwards in order to accommodate genuine lay persons as justice is for all ….”

Despite its efforts to help him however the court came to the conclusion that the bank should have summary judgment and awarded costs against Somaeb.

He appealed, seeking an order against the chief justice as “head of the judiciary”. But he now had an additional new grievance. Before the appeal was argued he inspected the court file containing the appeal record. He noticed that the bank had not filed a power of attorney when it lodged its heads of argument. But the very next day the bank produced a power of attorney and lodged it with the other papers. Somaeb suspected that court officials had alerted the bank after he raised the issue with them and so he filed a complaint about what he thought was an improper relationship between the court office staff and the bank’s lawyers.

He also brought a recusal application against the judge hearing the matter, deputy judge president Hosea Angula, saying he should step down. Somaeb argued that the chief justice “supervises the judges” and exercised “responsibility over the judiciary and the presiding judges”. Because of this relationship, presiding judges would be biased against anyone litigating against the chief justice and Judge Angula would thus necessarily be prejudiced.

When the judge found no merit in the argument and ordered the matter to proceed, Somaeb indicated that he was not going to participate further, though he stayed in court. “It needs mentioning,” commented the judge, “that (Somaeb) behaved himself in the most disrespectful manner towards the court.”

In Namibia, as in South Africa and Botswana, there is a special procedure to follow if someone wants to bring an action against a judge: the consent of the head of that court must first be obtained. And if the judge concerned is the chief justice, then consent must first be obtained from the next most senior judge of the supreme court.

Judge Angula said that without such consent the court would not be allowed to consider Somaeb’s application and he struck the matter from the roll, with costs.

That, however, was not the end of the matter and argument in chambers at the supreme court followed, heard by the deputy chief justice Petrus Damaseb.

He had before him not only Somaeb’s appeal but also an application by the permanent secretary of judiciary for summary dismissal of the appeal.

The matter broke new ground for the Namibian courts as it was the first time s 14 (7) (a) of the Supreme Court Act was invoked: this is a provision allowing the chief justice or a specially designated judge “in his or her discretion” to “summarily dismiss (an) appeal on the grounds that it is frivolous or vexatious or otherwise has no prospects of success.”

The main appeal ground put forward by Somaeb was that Judge Angula erred in not recusing himself because “it was impermissible for the judge a quo to sit on this case where his boss, the chief justice, is the first respondent as well as the head of (the second respondent).”

The court spent some time examining exactly what was meant by “frivolous or vexatious” and said that according to Somaeb’s argument no judge appointed under the Namibian constitution could ever preside in a matter involving the chief justice. This had “no basis in law and is so unrealistic and fanciful as to be frivolous”. Clearly the chief justice could not sit in matters concerning himself and so judges below him in precedence had to preside in such cases as required by the constitution.

Somaeb had not obtained the necessary consent prior to bringing his action against the chief justice and the high court could not overlook that failure. There was no chance that any other court could find differently. Trying to pursue that same issue on appeal is “frivolous and vexatious and without any prospect of success.”

Similarly, asking the high court to order the supreme court to review its own decision was seeking a “remedy unknown to law”, and trying to appeal the issue was “frivolous and vexatious and without any prospect of success”.

The case also highlighted “a very disturbing trend” in the Namibian courts, said the judge. This was for litigants to try to overturn a decision of the highest court, either by asking the court to review its own decision or by re-litigating in the high court to challenge the outcome at the supreme court. This kept litigation alive and pending in the court system even though the issue had been “authoritatively determined” by the highest court, “involving the same parties on exactly the same issues of fact and law”.

In such cases the registrar should not place the matter on the court’s roll as it simply wasted time said the judge and he summarily dismissed the application, with costs.

The following Namibian judgments are discussed above:

*This is the first of three Jifa articles in the 6 July 2018 edition of the newsletter, focusing on challenges to the powers of regional chief justices over the last week.

Carmel Rickard

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