Judge & applicant instructed same legal counsel: grounds for recusal?

In this most unusual set of circumstances, a Namibian acting judge, while still in his permanent post as principal magistrate, needed to bring an insurance claim. His insurance company sent formal instructions to counsel. Now, as acting judge, he has an applicant before him represented by the same counsel. Are these good grounds for the applicant’s recusal application?

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At first the official summary, provided at the top of all Namibian judgments, had me confused. It referred throughout to ‘I’ and ‘my’, something I had not seen before. Why was the judge featuring himself in the summary? Given my confusion, it was reassuring to find that even the judge concerned said there had been a ‘rather uncommon approach’ in this case.

To understand the situation, we need to go back a little. Acting Judge Mika Namweya is actually a Principal Magistrate but was appointed to an acting term at the high court from August 2019. More than a year before that appointment, he needed to make an insurance claim. His insurance company sent formal instructions to counsel on 9 August last year and that matter has been proceeding.

Since then he has not presided (as a magistrate) in matters involving that legal firm except for one case. And when the legal firm became aware of his acting appointment at the high court, they raised the matter with the Deputy Judge President who assigned one of Judge Namweya’s matters to another judge.

As presiding judge, he is now dealing with the case of Gerhard Mufufya and Erick Iita but, unexpectedly, the question of his insurance claim has popped up even here.

In a preliminary objection, both parties formally asked for his recusal on the basis of the applicant’s apprehension of bias. It turns out that the applicant is represented by the same firm that handled the judge’s insurance claim and both parties want the judge to stand down.

Dealing with the recusal application, the judge said it was common cause that an attorney-client relationship had existed between himself and the applicant’s legal counsel. But that ended on 19 August 2019. Also, he said, it was ‘rather unusual’ to demand the recusal of a judge on the grounds put forward in this case: his insurance company had instructed the legal firm and ‘as such (he was) only a claimant of (his) insurance company in the matter.’

He also quoted from a South African Constitutional Court decision that ‘prior association’ with an ‘institution’ cannot form the basis of a reasonable apprehension of bias ‘unless the subject-matter of the litigation in question arises from such associations or activities. … Where a judicial officer, in his or her former capacity, either advised or acquired personal knowledge relevant to a case before the court, it would not be proper for that judicial officer to sit in that case.’

Judge Namweya said there were no claims that, as a result of ‘prior association’ with the law firm in question, he had come to know the matter before court or had any relevant special knowledge about the working of the law firm. It would thus not be ‘reasonable’ to claim apprehension of bias.

No applicant, knowing the nature of the relationship between himself (the judge) and (the applicant’s) legal counsel would reasonably conclude that the judge would not bring an open and impartial mind to adjudicate the matter.

‘I have had no other access to them or their firm other than the instructions that (the insurance firm) held at the time; that is why this application is extremely mind-boggling.’

Dismissing the application for recusal, Judge Namweya concluded: ‘In essence, the applicant and I have instructed the same legal counsel from the same law firm but on unrelated matters; such in my view cannot then afford the applicant “a reasonable apprehension of bias”.’

Given that recusal emerges time and again as a major issue of dispute in the courts of this region, it will be interesting to see whether the parties appeal this decision – and if so, what Namibia’s Supreme Court will have to say about it.