A MAN trying to sue the government and a Windhoek-based magistrate for N$2,1 million because his right to a fair trial was violated more than 15 years ago, has failed with a bid to widen the law so that he can have the state held liable for the wrongdoing of a judicial officer.
In a judgement with important implications for the independence of the judiciary, the Supreme Court last week dismissed an appeal in which the court was asked to find that the state could be held liable for the conduct of a magistrate or judge that violates someone’s fundamental rights and freedoms.
Except for the argument that someone seeking financial compensation over wrongdoing by a judicial officer would stand a better chance of getting money out of the state than getting it from a judicial officer, there was no other compelling reason to extend the liability currently limited to a magistrate or judge in their personal capacity to also include the state, deputy chief justice Petrus Damaseb indicated in the judgement.
“The conclusion I come to is that it is not necessary to extend liability to the state for the mala fide, malicious or fraudulent conduct of a judicial officer. Doing so may create a far worse mischief than not extending it,” the deputy chief justice said in a judgement with which chief justice Peter Shivute and acting judge of appeal Theo Frank agreed.
The judgement dealt with an appeal by one Pieter Petrus Visagie, who tried to sue Namibia’s government, the Magistrates Commission, the attorney general and magistrate Elina Nandago after two judges of the High Court set aside the conviction and prison term with which his trial before magistrate Nandago ended in 2003.
Visagie stood trial on charges of fraud, corruption and the falsification or fabrication of a passport and in 2003, magistrate Nandago found him guilty and sentenced him to three years’ imprisonment.
In 2005, though, two High Court judges upheld his appeal against his conviction in a judgement in which the magistrate’s handling of his trial was sharply criticised. The judge who wrote the High Court’s judgement remarked that Visagie did not receive a fair trial, and called it one of the biggest failures of justice he had seen.
By the time Visagie’s conviction and sentence were overturned and his release ordered, he had spent more than two years in prison.
He decided to sue not only the magistrate, who he claimed had been determined to get a conviction against him, but also the government, the Magistrates Commission and attorney general.
In the High Court, two judges ruled last year that the state cannot be held liable for the judicial acts of the magistrate. In a dissenting judgement, a third judge concluded that the state could be held liable where a judicial officer violated someone’s constitutional rights.
In the Supreme Court’s judgement, the deputy chief justice noted that in terms of current Namibian law, a judicial officer is not personally liable for damages caused to someone through decisions made in good faith and without malice in the performance of judicial functions.
However, judicial officers are personally liable for their wrongful conduct while performing judicial functions if that conduct is proven to be done in bad faith, with malice and fraudulently, and in those circumstances, the state is not liable as well, based on the reasoning that there is no employment relationship between the state and a judicial officer, and that the state has no control over the performance of judicial officers, judge Damaseb noted.
Bad faith, fraud and malice on the part of a judicial officer “constitute a perversion of justice”, the deputy chief justice said. “Those are vices that are unrelated to the judicial function.”
If the state were to be sued together with a judicial officer over an alleged violation of constitutional rights and freedoms by the judicial officer, the two would have a common interest to resist the claim, and that would create a perception in the public’s mind that there is a link between the judicial officer and the arm of the state that controls the public purse, he reasoned.
The judiciary is truly unconnected from the state when exercising its functions, and the state is prohibited from interfering with those who administer justice, judge Damaseb said.
Holding the state liable for the acts of rogue judicial officers who pervert the cause of justice would disturb the carefully choreographed balance of the judiciary’s independence, he reasoned.
Judge Damaseb said the Namibian legal system gave someone in Visagie’s situation not only the option to sue a judicial officer, but the right to appeal against a conviction and to apply for bail pending appeal.
Senior counsel Reinhard Tötemeyer, assisted by Geoffrey Dicks, represented Visagie
The government and other respondents were represented by Nixon Marcus.
