One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

24 April 2022 · Carmel Rickard

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal. This time the court found there were indeed prospects of success on appeal and gave leave for the matter to be heard at the supreme court. What made the conflict between these two high court decisions even more remarkable was that one of the two judges in the first decision also sat in the second application and in fact wrote the judgment that, this time, came to a completely different conclusion from what had been found in the initial decision. Now the supreme court has decided that the second application to the high court was wrongly brought and that it amounted to a ‘grave irregularity’ for the second high court to overrule the order given by the high court the first time round. Making the story even more controversial is the fact that the convicted man, Vincent Likoro, was appointed as to a high-level ‘think tank’ of the ruling Swapo party after his rape conviction, a decision that was stoutly defended by a top Swapo official at the time.

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There’s a double whammy involved in this story. First, Namibia’s supreme court found serious irregularities by the high court and lawyers involved in a well-publicised rape case. Second, Namibia’s ruling Swapo party has appointed the man at the centre of the legal dispute, Vincent Likoro, a former advisor to the minister of land and resettlement, as a member of the party’s high-level think tank – even though he has been convicted of rape and sentenced to 10 years in jail.

Likoro was convicted and sentenced by the regional court in early 2016. His notice of intention to appeal was filed late and, in November 2017, two high court judges heard his application for an appeal and for condonation for late filing. In a unanimous decision, the judges refused his condonation application and, finding there were no prospects of success on appeal, they struck the matter off the roll.

Not satisfied with the outcome, Likoro’s legal team filed a second high court application to appeal. In March 2018, two judges of the high court heard argument – and granted leave to appeal to the Supreme Court. Even more bizarre, one of the two judges in this matter had not only been involved in the earlier application that decided against granting leave to appeal, but actually wrote the unanimous decision in the second case, giving leave to appeal.

Existence

Unaware at the time that there were two opposing judgments from the high court, the supreme court heard argument on appeal in October 2019. But before they delivered their decision, they discovered the existence of the first high court judgment.

The supreme court then wrote to counsel on both sides and asked them for their views on the resulting state of affairs: the first order was never set aside, and so it had continued to exist, adjacent to the second, conflicting order.

The supreme court said that the correct process would have been to appeal directly to the supreme court from the high court’s initial decision refusing application for condonation. But this is not the route followed by the accused and his lawyers.

Cancelled bail

The first high court decision noted that, since the prosecution did not oppose the application for condonation for late filing, what had to be decided was the prospect of success on appeal. On that question, the court refused the condonation application, struck it off the roll, cancelled Likoro’s bail with immediate effect and said he had to be taken into custody at once.

If he had wanted to contest that outcome, Likoro’s next step should have been to appeal directly to the supreme court against the refusal of his condonation application. But instead of doing that, Likoro ‘inexplicably … managed to re-enroll the matter as an application for leave to appeal.’

In its response to the supreme court’s letter asking for comment on the situation, the prosecution said that the second high court application should not have been allowed and that it was an ‘irregularity which should be set aside’. Likoro’s legal team, however, argued that the supreme court should accept the second high court decision as valid.

‘Difficult to comprehend’

The supreme court said it was ‘difficult to comprehend’ why Likoro’s legal team did not advise him, ‘as one would have expected of seasoned legal practitioners’, that he had to appeal directly to the supreme court against the first high court decision.

The irregularities in the high court were not just theoretical, said the supreme court. The second high court ‘was not competent to hear the application’ and its order was ‘a nullity and cannot stand’. During argument of the appeal based on the second high court decision, Likoro’s legal team chose not to disclose all the background facts ‘regarding the substantive irregularity’. Had they done so, there was no doubt that the supreme court would have refused to hear the matter and the hearing would not have gone ahead.

At the heart of the matter was the fact that the second high court judgment overruled the first decision of the high court. ‘This is a grave irregularity because in essence it amounts to the same court overruling or setting aside its own previous decision.’ The second high court had in fact ‘sat as a court of appeal’ against the first court’s judgment and order. ‘Differently put, the second court pronounced itself as a court of appeal on its own judgment and order’.

‘Baffling’

‘This is impermissible. An appeal from a judgment of the high court lies only to the supreme court’ and not to another, differently constituted, high court, one of whose members was in any case legally disqualified to reconsider an application for leave to appeal, having sat in the same matter previously.

The result was that there were two contradictory judgments and orders, on the same matter, side by side. It was also ‘quite baffling’ that one member of the court sat in both matters, firstly agreeing that there were no prospects of success on appeal, then writing a judgment saying that there were indeed prospects of success. Referring to the ‘highly irregular’ second decision, the supreme court said it could not ‘close its eyes to material irregularities’ and that to do so would set a ‘dangerous precedent’ that ‘undermines judicial authority’.

In its final order, the supreme court found that the second judgment and order of the court ‘constitutes an irregularity’, and reviewed and set them aside. Similarly, the notice of appeal for the high court’s second matter was declared an irregularity, and was reviewed and set aside, while the hearing in the supreme court, related to the second high court decision, was struck from the roll.

Insult

All of this will now doubt be a cause of some embarrassment for the judges involved in the second high court case, not to mention the legal team that prepared and argued the later case. It will also come as a blow for Likoro, who must now start serving his sentence. He may of course follow the course outlined by the supreme court and appeal directly against the high court’s first decision, and that will raise its own questions about whether he is out of time and whether he will get bail once again, pending any possible new appeal.

The new supreme court decision also leaves the Swapo decision to appoint Likoro exposed. After it was announced that he was to join the party’s high-level think tank, journalists asked Swapo’s secretary general, Sophia Shaningwa, about the decision. She described the rape conviction as ‘a bedroom issue’, added that she felt it was ‘an insult’ to ask her about ‘bedroom stories’, and concluded, ‘I don’t discuss those types of things.’

Perhaps the fact that Likoro is now subject to the first high court decision, cancelling his bail and instructing him to report to start his sentence, will now focus the party’s attention on the question that Shaningwa refused to consider: why a political party, apparently committed to eradicating gender violence, should appoint a convicted rapist to an influential position.

* "A matter of justice', Legalbrief, 19 April 2022

Carmel Rickard

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