Magistrates’ strike may force Sankwasa to appoint administrators as councillors await swearing in

Urban and rural development minister James Sankwasa says he may appoint administrators to run councils if the magistrates’ strike prevents the swearing in of newly elected councillors.

The swearing in, solemnised by a magistrate, is expected to take place within seven days after the election.
Sankwasa says he has communicated to the Ministry of Justice and Labour Relations that 3 December will be the swearing-in date for the country, however, he has received no response.

“Since both myself and the minister responsible for that ministry are of the same Cabinet, I hope he will be able to give me direction of what he intends my ministry to do,” he says.

“I presume and live by the adage that says ‘silence is consent’. I will go back and enquire two days before 3 December if nothing is happening, because there could be some plans put in place,” Sankwasa says.

Elected councillors are required to take the oath of office before commencing their official duties.

The requirement for the oath is enshrined in the Regional Councils and Local Authorities Act of 1992 and stems from constitutional provisions.

The regional council and local authority elections took place yesterday amid the ongoing magistrates’ strike, with results expected to be announced today.

Sankwasa can envoke the provision of Section 92 of the act for the minister to appoint representative administrators over all the local authorities.

However, he says as a minister he cannot appoint a representative for the regional council, nor can the president.

“We assume and say governors can take over the running of councils.

“But then the law comes into question whether governors are legalised to run a regional council. They are not, in terms of the current law. They are just there as the heads of the regions, not regional councils,” says Sankwasa.

He urges for national patriotism to prevail in this matter, saying should the elected councillors not be sworn in, it will be damaging to Namibia, its democracy and international standing.

“Just imagine looking at the implications if the whole country is not sworn in, then we don’t have a local government, we do not have a regional government. What happens? People must put the country before self-interest. Patriotism must prevail.

“It’s just going to be a day’s job to swear in the councillors rather than throwing the whole country into turmoil,” says Sankwasa.

In September, he appointed former member of parliament Marina Kandumbu as administrator of the Katima Mulilo Town Council after dissolving the council in August.

Justice minister Wise Immanuel was unavailable for comment at the time of going to print.

Magistrates’ and Judges’ Association representative Florian Beukes yesterday said magistrates agreed to forgo backpay from April to July 2025 to ease the financial burden on the state.

Despite this concession, the process has not moved forward, he said.

He said the Magistrates Commission recommended the alignment on 7 November under the Magistrates Act, and the association said N$8 million has already been budgeted for its implementation.

“There has been no clarity, no written correspondence, and no substantive progress toward implementation,” Beukes said.

He said, therefore, this resulted in the association issuing a formal strike notice from Monday due to the government’s prolonged and unexplained failure to implement improved benefits.

Sankwasa says the oath of office ensures the individual commits to faithfully discharge their duties and uphold the Constitution and laws of the jurisdiction, making it a critical and mandatory step that cannot be bypassed.

The act says failure to be sworn into office has significant legal implications for local authority and regional constituency councillors, primarily rendering them unable to legally assume their duties, which could result in their seats being declared vacant if the failure or refusal persists.

Additionally, actions taken by an unsworn official might be considered invalid if challenged in court.

To keep the courts minimally functional, divisional magistrates may appoint assistant magistrates – usually clerks of the court – whose powers are limited to postponements and the granting of bail only where the prosecution agrees. They cannot preside over trials or formal bail applications.

The Office of the Judiciary this week directed all heads of administration in magistrates’ offices to serve as “assistant magistrates” to preside over some matters during the strike.

However, executive director of the judiciary Benhardt Kukuri says assistant magistrates do not hold power to swear in councillors.

“The swearing in of councillors is only reserved for substantive or real magistrates,” he says.

Kukuri says assistant magistrates also have the power to authorise warrants of arrest, perform marriages, and approve applications for temporary liquor licences among others.

He notes that the judiciary and the justice ministry would have to find resolution by 3 December.

Affirmative Repositioning leader Job Amupanda on Tuesday requested the intervention of the Presidency in the ongoing work stoppage, which he described as a looming crisis.

In the letter to the Presidency, he says administrative assistants acting as magistrates “do not have legal qualifications, did not receive proper judicial training and more importantly are not sworn in as judicial officers.”

“The quality of justice, constitutional validity of proceedings, public confidence in the courts is evidently compromised. This is fatal,” Amupanda said.

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