Justice Minister taken to court

THE Magistrates’ Commission is taking Justice Minister Pendukeni Iivula-Ithana to court to compel her to ‘do her job’ after it accused her of refusing to dismiss a magistrate.

The Commission’s stance is that Iivula-Ithana has been blocking a recommendation to dismiss Magistrate Leah Shaanika for about two years, after the Commission recommended the dismissal in January last year. In court papers seen by The Namibian, the Commission states that in terms of the Magistrates Act the Minister must sign the dismissal letter at the recommendation of the Commission. Court papers state that the Commission is seeking a High Court order to compel the Minister to sign Shaanika’s dismissal letter. It pursued the legal route after several unsuccessful attempts to get the Minister to sign the dismissal letter over the past two years.Sources within the Ministry of Justice claimed to The Namibian that the legal action has placed a ‘serious’ strain on the relationship between the Minister and the Commission.Iivula-Ithana states in her answering affidavit that she is not obliged to act as a ‘rubber stamp’ in accordance with the recommendation of the Commission.She added that there is dual responsibility and that the Commission’s recommendation alone is not enough to bring about a lawful dismissal of a magistrate. The Minister can also not do it alone. The Commission found Shaanika guilty of six counts of misconduct in 2007, after a protracted hearing.Shaanika was found guilty of using derogatory language and assaulting a court employee in March 2004. She was also found guilty of using derogatory and insulting language in open court towards someone appearing before her court in October 2004. In this case the complainant, a man, was said to have been so humiliated that he left the court crying.He later launched a successful civil case against Shaanika because of the humiliation he had suffered.On count three Shaanika was found guilty of refusing to handle a civil case brought to court by a lawyer.She was also found guilty of advertising and selling lunch packs at court and for alleged abuse of her position as a magistrate.In December 2007 the Commission gave her an option to resign as magistrate within 14 days or face being fired. Shaanika did not resign, prompting the next course of action, which was to write a dismissal recommendation to the Minister. This was done in January last year and no progress has been made since then. The story first appeared in October last year in Insight magazine. In its June edition this year, the magazine reported that the Commission had gone as far as addressing President Hifikepunye Pohamba in the hope that he would compel Iivula-Ithana to act on their recommendation. The magazine also reported that apart from taking legal action, the Commission could also consider resigning as a Commission as a sign of protest.The bone of contention between the two parties in the case is about whether the Minister can refuse to dismiss a magistrate despite recommendations to do so by the Commission. In her affidavit, Iivula-Ithana states that she is not refusing to make a decision but rather that the process was delayed by factors beyond her control. She also added that she was not informed of any disciplinary measures against Shaanika until Shaanika came to seek her audience regarding the matter in April last year.The Commission claims it has been informing the Minister of every step it took.Iivula-Ithana said after she found out what was happening, she was looking after her ill husband for some time and subsequently had to take compassionate leave after his death.Iivula-Ithana added that the Commission also delayed the process by not supplying her with relevant documentation regarding Shaanika’s case.She also said she had requested legal opinion from the acting Attorney General on the issue and was still waiting for the opinion before making her decision.The Commission also feels that Shaanika is allegedly getting unequal treatment, as several other magistrates have been dismissed since January last year and the Minister did not object to signing any of those dismissals. Despite the Magistrates’ Commission concluding that Shaanika is not fit to hold office as a magistrate, she continues to hear cases.By the time of going to press The Namibian could not establish when the case was set down for a hearing in the High Court.tileni@namibian.com.na