Ithana loses Shaanika battle

THE Minister of Justice must dismiss Windhoek-based Magistrate Leah Shaanika from her post within 14 days, the High Court ordered yesterday.

In an unprecedented courtroom clash between the Minister of Justice and the Magistrates Commission, which is the body in charge of Namibia’s Magistrates, it is the Commission that has now emerged as the winner.The judgement of Lesotho Judge Nthomeng Majara on the litigation between the Commission and the Minister was handed down in the High Court in Windhoek yesterday. Judge Majara had been appointed as an acting judge of Namibia’s High Court to hear the case between the Minister and the Commission.In the judgement, Judge Majara ordered Justice Minister Pendukeni Iivula-Ithana to dismiss Shaanika from her position as magistrate within 14 days. She added that if the Minister fails to do this, the High Court’s Sheriff, which is the Registrar, is authorised to sign the necessary documentation to have Shaanika dismissed.Judge Majara further declared that Iivula-Ithana’s conduct with regard to the recommended dismissal of Shaanika was in conflict with her statutory duty under the Magistrates Act.The Magistrates Commission, then chaired by High Court Judge Sylvester Mainga, on January 24 2008 recommended to the Justice Minister that Shaanika should be dismissed from her post. That was after Shaanika had been found guilty on six charges of misconduct that she had faced at a disciplinary hearing.Shaanika had initially been charged with misconduct in April 2005.After the Minister had failed for a year to act on the Commission’s recommendation or on follow-up requests that she should act, the Commission instituted legal proceedings against the Minister and Shaanika early last year. The Commission asked the High Court to order the Minister to dismiss Shaanika and to declare that her inaction had been in conflict with her statutory duty.Although she initially defended the case, Shaanika later withdrew her opposition. The Justice Minister however continued to fight the matter against the Commission.The Magistrates Act states that if the Magistrates Commission ‘recommends to the Minister that a magistrate be dismissed on the ground of misconduct (… ) the Minister must dismiss the magistrate from office’.’In my opinion, these words are clear and unambiguous,’ Judge Majara stated.She found: ‘(O)nce a magistrate has been appointed and effectively become a member of the judiciary, his or her dismissal is no longer a discretionary matter of the Minister.’ The meaning of that section of the law is that once the Magistrates Commission has recommended the dismissal of a magistrate to the Minister, she must carry out the dismissal, Judge Majara ruled.She made a point of voicing her concern over the Minister’s long delay in carrying out the Commission’s recommendation. ‘(T)he delay undermines the purpose of the (Magistrates) Act and the credibility of the process prescribed by it. It also does make a mockery of the entire regime and flies in the face of the sacrosanct democratic principle of judicial independence entrenched in the Constitution as evinced in the passing of the Magistrates Act,’ Judge Majara stated.One of the stated purposes of the Magistrates Act of 2003 is that it had to establish a magistracy outside the public service, she noted.Iivula-Ithana’s defence to the allegation that she had failed to carry out her duty was that she was not compelled to act on the Commission’s recommendation unless she was satisfied, on the documents submitted to her, that due process had taken place. She said she was not refusing to act, but had been waiting for further documentation to be provided to her by the Commission.Iivula-Ithana requested this additional documentation in a letter dated October 21 2008 – after she had had a meeting with Shaanika to hear her version on the disciplinary procedures that had been taken against her.This meeting with Shaanika was done ‘unilaterally and without any consultation or notice to the (Commission)’, Judge Majara commented.She stated: ‘It is not debatable that this action was incorrect because nowhere does the Act empower the Minister to do so. She does not have any right to give audience to any of the parties, powers of review and or appellate powers, let alone to give a one-sided audience to the very person against whom she is supposed to act.’In her opinion, Judge Majara added, Iivula-Ithana’s claims that she was waiting for further documentation to be provided by the Commission ‘was just a lame excuse or red herring to further delay the inevitable outcome’.If Shaanika had a problem with the disciplinary process and its outcome, she should have followed the procedure set by the Act and have appealed to the High Court against the decision to dismiss her, Judge Majara remarked.Dave Smuts, SC, instructed by Toni Hancox of the Legal Assistance Centre, represented the Magistrates Commission. Sackey Akweenda represented the Minister.