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Several aspects of this special review judgment should be causing concern within Namibia’s justice system.

The case, S v Shimmy, results from the conviction of Festus Shimmy for contempt of court by the divisional magistrate’s court in Keetmanshoop. His sentence was N$500 or 30 days in prison.

The first problem is that Shimmy was convicted and sentenced on 14 June 2023. But the case was sent on special review from the court with a letter dated 22 November 2023, far later than it should have been - and too late to have been of any help to Shimmy.

Yellow jersey and short pants

Why the contempt of court verdict and sentence in the first place? What had Shimmy done? According to the court, he committed contempt in the face of the court, by appearing in court ‘in a yellow jersey and short pants’.

The section of the Magistrate’s Court Act under which Shimmy was convicted says that anyone who ‘wilfully insults a judicial officer during his sitting’ can be liable to removal and detention, and is also liable ‘to be sentenced summarily … to a fine not exceeding R100 … or to imprisonment for a period not exceeding three months’.

However, if a court jails or fines anyone under this section, the judicial officer concerned must ‘without delay, transmit to the registrar of the court of appeal for the consideration and review of a judge in chambers, a statement, certified by such judicial officer to be true and correct, of the grounds and reasons of [the] proceedings, and shall also furnish to the party committed a copy of such statement.’

Procedure not followed in this case

In their review judgment, high court judges Herman January and Naomi Shivute note that the only concerns raised in the covering letter by the divisional magistrate and the presiding magistrate, related to the fact that the sentence was outside that authorised by the law.

That, however, was not the only concern, the judges point out. The law also lays down a procedure that must be followed in such a case. This including sending a statement to the court of appeal ‘without delay’; that the statement, which must be certified to be true and correct, must explain the grounds and reasons for the conviction and sentence, and that the convicted person must also be given a copy of the statement.

This procedure was not followed in the Shimmy case.

Not in accordance with justice

Even before the judges dealt with those problems, however, they noted that the record and warrant of detention reflected that the accused was ‘99 years old’. In fact, however, the accused explained in mitigation that he was 26.

In addition to this problem, said the judges, the proceedings in the magistrate’s court showed that they were not in accordance with justice.

According to the record, the magistrate ‘observe[d] that the accused is dressed inappropriately, accused is wearing a short trouser and jersey.’ In the proceedings that followed, the accused was told of his right to legal counsel at his own cost, the right to ask for legal aid, and the right to conduct his own defence.

Shimmy said he wanted to defend himself and, asked why the court should not hold him in contempt, he said, ‘I did not do it on purpose the trouser I was supposed to wear is very dirty and I cannot come with that trouser because it is very dirty that is why I came with a short.’

‘Inappropriately brief’ inquiry by the magistrate

The court responded that this wasn’t a good enough explanation and found him guilty.

In mitigation, Shimmy said he was 26, unemployed and unmarried but with two children under 18. The mother of the children was unemployed and he was supporting them ‘as my grandmother is unemployed’. He continued, ‘If I may be warned. I will not do it again.’

Though the state recommended a fine of N100 or 20 days, the magistrate imposed a fine of N$500 or 30 days.

The magistrate's inquiry about the contempt allegedly committed by Shimmy was ‘inappropriately brief’, said the judges. It didn’t cover the question of intent or unlawfulness, and he wasn’t asked whether he ‘willingly wanted to insult the judicial officer … or be contemptuous’ and whether he knew that it was ‘unlawful to appear in court in the manner that he did.’

Reasonable explanation had been given

In fact, the judges added, Shimmy had given a reasonable explanation for his attire. Add to this the further fact that it was the court orderly’s duty not to admit an accused into court if his ‘appearance was inappropriate and offensive’.

‘In addition, there is no evidence or admission that the accused was previously warned of what an appropriate dressing to court is.’

Further, the fine of N$500 was beyond the maximum fine of N$100 stipulated by law.

Clearly, the convictions and sentence were therefore not in accordance with justice and should be set aside. If Shimmy had paid a fine, it had to be refunded to him, the court ruled.

Too late to be of any effect

What should be worrying anyone concerned to see justice in Namibia is the fact that the decision in this case was sent to the high court for review too late for it to be of any effect, despite the fact that the law requires a record of such cases to be sent ‘without delay’.

Then, there is the sloppy way in which the record and warrant of detention was compiled, reflecting that a 26-year-old man was actually 99, not to mention the fact that the fine imposed was outside the limits allowed by the law, something the magistrate can hardly have overlooked at the time.

Worrying lack of sensitivity to the community served by the court

But overall, the magistrate’s approach seems to speak of someone out of touch with the ordinary people who appear in the courts.

If you have only two garments, namely a pair of trousers and a pair of shorts, what are you supposed to do if one is too dirty to wear to court? Perhaps the magistrate, assured of a monthly salary, can’t imagine what it is like to be unemployed and desperately poor?

As the judges point out, the conviction did not follow any serious attempt to establish whether the man’s ‘inappropriate dressing’ was intended to insult the judicial officer or to be contemptuous.

Altogether it speaks of a worrying lack of sensitivity about the community that the magistrate serves. The fact that the divisional magistrate seemed just as unaware of this lack of sensitivity makes the situation even worse.