High Court to make ruling on Kandara inquest magistrate

THE High Court plans to rule on June 26 whether Windhoek Magistrate Maria Mahalie should continue to conduct an inquest into the death of the late Lazarus Kandara, or whether the inquest would have to start afresh before another Magistrate.

Judge Kato van Niekerk plans to give her judgement on that date on an application to order that Magistrate Mahalie should be recused from the partly-heard inquest, the Judge said after she had heard lawyers’ arguments on the matter yesterday. Magistrate Mahalie has been presiding over the inquest into the death of Kandara, who died from a gunshot wound to the chest on the evening of August 24 last year.Kandara was under arrest on charges of fraud and theft in connection with his involvement in the alleged disappearance of a N$30 million investment of the Social Security Commission.The Police have been claiming that he committed suicide with a firearm that he is thought to have managed to get hold of when Police officers escorted him to his house in Windhoek after his arrest.The recusal application that Judge Van Niekerk heard yesterday is brought by the former Commanding Officer of the Namibian Police’s Serious Crime Unit, Oscar Sheehama, and the three still-serving Police officers who accompanied Kandara to his home that evening.They are Detective Sergeants Linekela Hilundwa and Frans Kantema, and Detective Constable Chaolin Tjitemisa.All three of them still face internal disciplinary charges in the Police over the circumstances of Kandara’s death while in Police custody.They are claiming that they fear that Magistrate Mahalie may be biased against them at the inquest.To support this claim, they are alleging that they have information that she attended Kandara’s funeral at Otjiwarongo, and that during the first part of the inquest proceedings in late March she has already wrongly denied them the right to be legally represented by a lawyer who should have been allowed to also question witnesses on their behalf.The Magistrate had been “grossly unreasonable” when she denied them that right to be legally represented, their lawyer, senior counsel Dave Smuts, told Judge Van Niekerk during yesterday’s hearing.She had also come up with “totally untenable and far-fetched denials” of the claim that she had attended Kandara’s funeral, he added.All of this showed that they had reasonable grounds to fear that she may be biased against them, Smuts argued.The Magistrate’s lawyer, Shafimana Ueitele, countered that there had not been any irregularities at the inquest that would justify a claim that the Magistrate may be biased.She is denying that she was a mourner at the funeral – but even if she was at the funeral, that in itself is not enough to create an apprehension of bias, Ueitele argued.Magistrate Mahalie has been presiding over the inquest into the death of Kandara, who died from a gunshot wound to the chest on the evening of August 24 last year.Kandara was under arrest on charges of fraud and theft in connection with his involvement in the alleged disappearance of a N$30 million investment of the Social Security Commission.The Police have been claiming that he committed suicide with a firearm that he is thought to have managed to get hold of when Police officers escorted him to his house in Windhoek after his arrest.The recusal application that Judge Van Niekerk heard yesterday is brought by the former Commanding Officer of the Namibian Police’s Serious Crime Unit, Oscar Sheehama, and the three still-serving Police officers who accompanied Kandara to his home that evening.They are Detective Sergeants Linekela Hilundwa and Frans Kantema, and Detective Constable Chaolin Tjitemisa.All three of them still face internal disciplinary charges in the Police over the circumstances of Kandara’s death while in Police custody.They are claiming that they fear that Magistrate Mahalie may be biased against them at the inquest.To support this claim, they are alleging that they have information that she attended Kandara’s funeral at Otjiwarongo, and that during the first part of the inquest proceedings in late March she has already wrongly denied them the right to be legally represented by a lawyer who should have been allowed to also question witnesses on their behalf.The Magistrate had been “grossly unreasonable” when she denied them that right to be legally represented, their lawyer, senior counsel Dave Smuts, told Judge Van Niekerk during yesterday’s hearing.She had also come up with “totally untenable and far-fetched denials” of the claim that she had attended Kandara’s funeral, he added.All of this showed that they had reasonable grounds to fear that she may be biased against them, Smuts argued.The Magistrate’s lawyer, Shafimana Ueitele, countered that there had not been any irregularities at the inquest that would justify a claim that the Magistrate may be biased.She is denying that she was a mourner at the funeral – but even if she was at the funeral, that in itself is not enough to create an apprehension of bias, Ueitele argued.