The Magistrate, The Minister & The Judges Who Sorted Them
By: CARMEL RICKARD
A FOUL-MOUTHED magistrate who uses brute force in court; a minister of justice who won’t fire the magistrate; three judges who lay down the law and tell the minister that the magistrate must be sacked.
You will never hear a story like this again in your life. Guaranteed.
One dubious star of the show is magistrate Leah Shaanika. She won notoriety by turning her court into a spaza shop and throttling a litigant when he was reluctant to sign documents. Eventually her antics came to the attention of the Magistrates’ Commission and after a disciplinary inquiry they decided she should be dismissed.
As required by law they forwarded the relevant documents to the Minister of Justice to sign off on the dismissal. But after years of inaction by the minister, the commission finally went to court to force the minister to act as the law said she must. Yes, ‘she’: Justice Minister Pendukeni Iivula-Ithana; for all the characters so far are Namibians and the drama took place over the border.
Now, that country’s highest court has given its decision. Written by three acting judges of the Namibian Supreme Court – South Africa’s former chief justice Pius Langa, with the unanimous agreement of another former South African Constitutional Court judge, Kate O’Regan and Namibia’s former chief justice, Johan Strydom – the court judgment concluded the minister has no choice; she must sack the magistrate.
Shaanika made news for bringing along ‘lunch boxes’ that she advertised and sold to the public in her court during mid-day adjournment. But the major event leading to what must now be her certain dismissal was the 2007 case brought against her by Telecom clerk Silvanus Amunyela.
He claimed she defamed him in court by, among others, saying he was the author of a smear campaign against her, saying he was ‘nothing but a poor man, owning and knowing nothing and who will never reach her standing in the community’ and that he had a sexual relationship with a woman in the justice department who lived in the same street as the magistrate – according to the court record, Amunyela said the magistrate’s exact words were: ‘You and Anna Amupanda are f...cking each other and in return she is writing letters to spoil my job’.
The judge who heard the defamation case found for Amunyela and awarded him N$35 000 as well as costs. He noted what Shaanika said in her defence: she believed Amunyela had poisoned her dogs, tried to run her down, made threatening phone calls to her, intimidated her sister and shot at her car. It was unbelievable, said the judge, that any judicial officer would even consider presiding over a case under such circumstances. In view of her ‘involvement’ with the litigant, Shaanika should have referred the matter to someone else for hearing.
“I am convinced [she] saw this as an opportunity to get at him by using her position and authority. The complaints lodged at least warranted a disciplinary hearing. However it seems the entire issue has been swept under the carpet, conduct that certainly does not create much confidence in the administration of justice.”
But what the judge did not know at the time was that the Magistrates’ Commission had begun an investigation two years before this. After the inquiry was eventually finalised Shaanika was given the option of resigning and when, in December 2007, she refused to do so, the commission asked the minister to sack her.
More than two years later the minister had still not acted and the frustrated commission took her to court. Following a High Court ruling against her she appealed to Namibia’s Supreme Court, that country’s highest legal forum.
Its decision, written by Justice Langa, was handed down last week: the minister misunderstood the law, said the court. She thought she could ‘decide’ whether to act on the commission’s recommendation but the law quite clearly states that she ‘must’ sack a magistrate after the commission recommends dismissal. By failing to act in these circumstances she undermined rather than supported judicial independence, dignity and effectiveness.
As I read all this I wondered why three acting members of the highest court were asked to preside in the appeal. Was there a reluctance by permanent judges to hear a case which could involve strong criticism of a Cabinet minister? While that would be very serious for Namibian judicial independence you could at least argue it was more efficient that acting judges heard the case: Namibia’s bench is notoriously slow with decisions and the present chief justice himself has a backlog of cases involving delays of 10 years.
Had the appeal been heard by him, Shaanika might still have been on the bench, shielded by the minister, come 2022.
* Carmel Rickard has a background in English and History. In 1980 she left teaching for journalism and soon began to specialise in writing about the intersection of law and politics. She had a Nieman Fellowship to harvard website in 1992 and was for some time legal editor of the timeslive website in South Africa.