Sikunda V Government Of The Republic Of Namibia And Another

SIKUDA v GOVERMET OF THE REPUBLIC OF AMIBIA AD AOTHER (1) 2001 R 67 (HC) 2001 R p67 Citation

2001 NR 67 (HC)

Court

High Court

Judge

Teek JP

Heard

November 10, 2000

Judgment

January 12, 2001

Counsel

R Cohrsson for the applicant. V Ya Toivo for the respondents.

Annotations

Link to Case Annotations

B [zFNz]Flynote Judge - Recusal - Under what circumstances - Judge postponing ruling in contempt of court case where Cabinet Minister accused of contempt - Media and Society of Advocates attacking presiding Judge - Presiding Judge concluding that in light of C attacks, any ruling he might give would lack credibility and legitimacy. Judge - Recusal of - Test to be applied - Reasonable apprehension of bias - Such apprehension based on reasonable suspicion - Such suspicion being based on known facts - In present case Judge of the view that independence and integrity D attacked - Judge accordingly mero motu deciding to recuse himself. [zHNz]Headnote On 24 October 2000 the Court granted a rule nisi for the immediate release of a detainee who was a suspected Unita supporter. The rule was returnable on 10 November 2000. On 31 October 2000 the Court granted a further E rule nisi , calling upon the second respondent, the Minister of Home Affairs, inter alia to show cause on 10 November 2000, why he should not be convicted for contempt of court on the grounds that he had failed to order the detainee's release. On 10 November 2000 the contempt of court application was argued and the rules in both matters were extended first to 20 November and then to 29 November 2000. On 29 November the Court indicated that it was F not yet ready to give its ruling on the contempt application and the matter was postponed and the rule extended to 12 January 2001. The Court refused counsel for the applicant's request that the detainee be released in accordance with the order of 24 October 2000. The Society of Advocates issued a press statement on 29 November 2000 deploring the

conduct of the Court and the delay in coming to a conclusion. In addition, the two main newspapers in Namibia carried lead articles in regard to the delay of the Court in giving its ruling, stating, inter alia , 'Justice delayed, justice denied'. G On 12 January 2001 the Court mero motu raised the question as to whether the presiding Judge should recuse himself. Held, that in the light of statements by what the Judge termed 'the three antagonists', any ruling he would give would lack credibility and legitimacy. Held , further, that the test for the exceptio recusationis was whether there was an apprehension of bias on the part of a Judge in a particular instance. H Held , further, that the factors to be taken into account in deciding whether a Judge should recuse himself on account of possible bias, could be summarised as follows: (1) there must be a suspicion that the judicial officer might, not would, be biased; (2) the suspicion must be that of a reasonable person in the position of the accused or litigant or member of the public; (3) the suspicion must be based on reasonable and reliable grounds; and (4) one which a reasonable person would , and not might have. Held, further, that these attacks affected his independence, dignity and integrity as a Judge. I Held , accordingly, that it would be in the interests of justice if he recused himself. [zCIz]Case Information Judgment on a question raised mero motu by the presiding Judge as to whether he should recuse himself. The facts appear from the reasons for judgment. J 2001 NR p68 R Cohrsson for the applicant. A V Ya Toivo for the respondents. [zJDz]Judgment Teek JP: In view of a media release issued on behalf of the Bar Council of the Society of Advocates and signed by the Vice-President, Ms Susan Vivier, on 29 November 2000, subsequent to the extension of the rule nisiB issued in the two Ngeve Raphael Sikunda matters, namely geve Raphael Sikunda v Government of the Republic of amibia case No A318/2000 (The main application) and geva Raphael Sikunda v Government of the Republic of amibia as first respondent, and Minister of Home Affairs of the Republic of amibia, Mr JerryC Ekandjo as second respondent case No A327/2000 (the contempt of court case) I mero motu , raised the issue of my recusal in letters addressed to both parties in these matters informing them of my intention and requesting them to submit any written and/or oral arguments thereanent, if they so wished. D

Mr Cohrssen , who appeared for the applicant placed it on record that the press release was issued by the Society of Advocates who did not represent the applicants. As he did not have instructions to argue the recusal issue he submitted that applicant's attitude was one of neutrality because he did not ask for my recusal. E However, if I felt that there was a perception of bias or other grounds for my recusal existed he encouraged me to recuse myself. In all reasonableness and fairness, I decided it apposite to quote the media release in full: F 'Media release on behalf of the Bar Council, On 24 October 2000 the High Court of Namibia ordered the immediate release of a detainee (José Domingo Sikunda). On that occasion, the Government was legally represented in court. Despite the clear terms of the court order, the detainee was not immediately released. An application to court the Minister of Home Affairs for contempt was then filed with the High Court. When it initially came to court on 27 October 2000, Government lawyers G were not present and the presiding Judge decided to postpone the matter to 31 October 2000. On that date a rule first was granted, calling upon the Minister of Home Affairs to show cause on 10 November 2000 why he should not be committed for contempt of court. After hearing full argument in the matter on 10 November 2000, the Judge-President, Mr Justice P Teek extended the rule until 20 H November 2000 when, he indicated, a ruling on the contempt application would be given. This did unfortunately not occur on that date and the Judge-President further extended the rule to 29 November 2000 to give a ruling on the contempt. When the matter was called in Court today, the Judge-President once again did not give a ruling on the contempt and yet again I extended the rule to 12 January 2001 for the purpose of giving a ruling. It is understood that the reason for this yet further long delay is for the Judge-President to attend a foreign conference and then to go on holiday. (This while a detainee languishes in detention without trial. Counsel in court reported that the detainee remained in detention notwithstanding the unambiguous terms of the court order.) The Judge-President was requested to direct that the detainee be released pending the outcome of the main J 2001 NR p69 TEEK JP application. The Judge-President however refused to direct that the detainee be released and also refused leave to appeal against A his refusal. No reasons were given by him for either ruling. The Bar Council of the Society of Advocates of Namibia deplores the failure of the Judge-President to direct the release of the detainee in these circumstances. The Bar Council points out that there is a clear order to that effect and until it is set aside or discharged, effect must be given to it. This is apart and separate from the issue as to whether the Minister had the requisite B intention to commit contempt of court. That

issue is presently being considered by the Judge-President and the Bar Council expressly makes no comment on that. What is clear is that an order of the High Court has been given and that it must be obeyed until set aside. The failure of the Judge-President to direct compliance with a clear order of the High Court, particularly when that C order involves the release of a detainee who is detained without trial, amounts to a travesty of justice and serves to seriously undermine the rule of law and, with it, constitutional governance in Namibia. The Constitution of Namibia is premised upon the rule of law and upon the separation of powers. The ruling by the Judge-President is tantamount to condoning disobedience of a court order and to exempt Government officials from complying D with the law. This negates the entire notion of the rule of law. It presupposes that everyone is equal before the law and that the laws of the country are to be obeyed by all, even by the highest authorities. It is for this reason that the Society of Advocates, whose members have taken oath to uphold the Constitution, voice their gravest concern at this disturbing decision of the High Court which can only serve to undermine the Constitution and the rule of law. E The Society points out that the pending ruling on contempt has nothing whatsoever to do with the release order of 24 October. That is an entirely separate issue. The continued incarceration of the detainee is for this reason completely unacceptable. This is compounded by the failure of the Judge-President to supply any reasons for his ruling. F S Vivier Vice-President (On behalf of the Bar Council)' The content of this statement appeared in at least two newspapers the next day, 30 November 2000. G The Bar Council's pronouncements and sentiments expressed in the media release were repeated in supportive and collaborative editorial comments and drummed up in 'The amibian ' of Friday, 1 December 2000 and the 'Republikein ' of Monday 4 December 2000, the former an English daily and the latter an Afrikaans daily. The amibian's comments were as follows: H 'Justice delayed, Justice Denied. WE find it incomprehensible that Judge President Pio Teek refused to direct government to comply with a High Court order made a month ago, ordering the release of Unita representative José Domingos Sikunda from detention at Sarasungu near Rundu. It I would have been more understandable had the Judge set aside the earlier order and given reasons for the continued incarceration of Sikunda but this did not happen. It is not set to happen before the full merits of the case on Sikunda's detention and pending deportation had been argued in court either- and that is now scheduled to take place in February next year only. This week the Judge-President merely deferred the part of the matter dealing J 2001 NR p70 TEEK JP

with the noncompliance with the Court order until some future date in January next year, stating he would then give his reasons for A refusing to direct adherence with the order. In so doing it appears as if Judge Teek, himself second in seniority to only the Chief Justice, is contributing to the erosion of both the Constitution and the rule of law. There will be those who will deliberately misinterpret this criticism of judge Teek for their own reasons. They will maintain that B while The Namibian and others continually emphasise the independence of the judiciary, they nevertheless criticise judgments and Judges themselves. To forestall such criticisms, we emphasise once again that it is not in principle unconstitutional to criticise either court judgments or Judges themselves. We have done so in the past, we do so now, and we will undoubtedly do it on occasion in the future. C It is the right of all Namibians to do this when and where they feel necessary and within certain limits. But the rule of law and independence of the judiciary are undoubtedly negatively affected when there is a refusal to comply with court judgments, such as in the case currently before Judge Teek in the matter of the Minister of Home Affairs who has refused to D comply with a court order for the release of Sikunda. It also impacts negatively on the judiciary when a Judge who has made the same order is threatened with the withdrawal of his ''work permit'' and labelled an ''interfering foreigner-'' for doing so. Namibians should be first to condemn detention without trial. For after all, they bore the brunt of an unjust system such as this during the apartheid era. And in the same way as we called for the release of Swapo members detained without trial, even in the E face of South African Government claims that they were ''terrorists'' and/or ''communists'', so too today do we call for at the very least the speedy hearing of the Sikunda case, notwithstanding the fact that he is alleged to be a Unita sympathiser. Swapo was not a banned movement in apartheid Namibia, and neither is Unita a banned movement in Namibia today. F What we do not understand is why the Judge-President has failed to order government compliance with an earlier court order. And has also failed to give reasons. For a court order must be obeyed until it is set aside. This is a fundamental principle of the justice G system. This, as the Bar Council said in a statement this week, both undermines the rule of law and constitutional governance in namibia and amounts to a travesty of justice, particularly when it concerns the release of someone who is detained without trial. We would argue this matter in precisely the same fashion even if the Minister of Home Affairs himself was the detainee. We would call on Judge President Teek not to delay this matter any longer than necessary, and to either speedily hear H government's reasons why Sikunda should remain in detention pending his proposed extradition and make a ruling either way; or to ensure that the government complies with the existing order.' The 'Republikein ' had the following comments to make: 'Regspleging: I Die oênskynlike amnestie wat die Minister van Binnelandse Sake, mnr Jerry Ekandjo, van die regspleging en Namibiese howe geniet, behoort in die beste belang van die goeie orde van die demokrasie en respek van die Grondwet opgehef te word.

Die aanvanklike uitsondering on mnr Ekandjo in 'n ''gees van versoening te vergewe'' toe hy vir minagting aangekla moes word, het mnr Ekandjo klaarblyklik bo enige wet verhef. J 2001 NR p71 TEEK JP Ten spyte daarvan dat almal in die openbaar verskoning gevra het vir die Ekandjominagting behalwe Ekandjo self, is mnr A Ekandjo nou weer sentraal in 'n saak waar die hof sy eie bevele klaarblyklik minag. Ten spyte van ernstige waarskuwings dat voortaan streng opgetree sal word teen enige vorm van minagting wentel die jongste optredes rondom die Ekandjo-optredes en die Balieraad steeds in die dampkring van minagting. Mnr. Ekandjo het selfs verbeter op sy eerste minagtende uitsprake deur nou 'n hofbevel ook te minag. B As die hof nie self die onafhanklikheid van die hof kan waarborg nie en ook nie die spel van geregtigheid kan speel nie, is dit nie moontlik om dit van die eenvoudigste man in die straat te verwag nie. Jan Alleman het rede om die howe en Regters se vermoê in die verband in twyfel te trek wanneer dit deur niemand mindder as die Vereniging van Advokate ook in die openbaar bevraagteken word nie. C Hulle behoort die beste te weet. Dit is onbegryplik dat Namibiê se Hoofregter in die verband ook swyg. Dit is die een kwessie waar sy opinie nie gevra behoort te word nie, maar waar hy dit ter wille van die regspleging moet gee. Ook ter wille van 'n kollega soos Regter-president Pio Teek wat deur die Balieraad vir sy gebrek aan geregtelike optrede gestriem word. D Of is Namibiêrs se vermoede bevestig dat die uitsonderlike verdraagsaamheid van die hof teen die slepende Ekandjo-minagtende optrede beteken dat Ekandjo 'n spesiale Namibiêr met spesiale regte is. Meer regte as die howe en die regters? Is dit net toevallig dat die regsbank in omstredenheid bly en dat die sentrale figuur mnr Ekandjo of sy optrede is? E Gelyktydig met die toevalligheid dat die regsbank en howe se gebrek aan optrede ook net sigbaar is waar mnr Ekandjo se optrede of uitsprake betrokke is. Dit is moeilik om nie 'n hof te minag wat sy eie hofbevele minag nie. Dit is eintlik onmoontlik. Veral wanneer advokate in die openbaar beweer dat die Regter-president se optrede die grondwetlike regering in Namibiê ondermyn. Hoe langer die howe oor dié kwessie swyg, hoe dieper word die wantroue. Dit behoort die regspleging beter as F enigiemand te weet'. 'Administration of justice: The ostensible amnesty by the administration of justice and the Namibian courts which the Minister of Home Affairs Mr Jerry G Ekandjo, seems to enjoy, should be removed, in the interests both of public order and democracy and respect for the Constitution. The initial exception made to Mr Ekandjo when he should have been charged with contempt of Court under the pretext of ''forgiving him for the sake of reconciliation'', has put Mr Ekandjo above the law of the country. Despite the fact that there has been a public apology for Ekandjo's contempt of court - except from Ekandjo himself - has made

Ekandjo the central figure in a case where the H Court apparently has contempt for its own orders. Despite warnings that in future contempt of court would be acted upon more strictly, the latest incident and the response of the Bar Council, has brought the matter squarely within the ambit of contempt of court. Mr Ekandjo has even improved upon his previous contemptuous remarks by being in contempt of a Court order. I If the Court itself cannot guarantee its own independence and cannot play the game of justice, it is impossible to expect it from the simplest man in the street.The man in the street has every reason to doubt the ability of the Courts and judges in this regard, especially if the Society of Advocates publicly expresses its doubts. They ought to know best. It is incomprehensible that the Namibian Chief Justice has also kept silent in this regard. It is the one instance in which his opinion J 2001 NR p72 TEEK JP need not be asked; it would be in the interest of the administration of justice if he were to express an opinion. Also for the sake of a A colleague such as Judge-President Pio Teek, whose lack of action has been criticised by the Bar Council. Or is the suspicion confirmed that the inordinate tolerance by the Courts of Ekandjo's contempt of court means that he is a special Namibian with special rights. More rights than the Court and the Judges? B Is it a coincidence that the judiciary remains clothed in controversy and that the central figure is Mr Ekandjo or his actions? Simultaneous with the coincidence that the lack of action by judges and Courts is only visibile when it comes to Mr Ekandjo. It is not difficult to hold a Court in contempt which holds its own orders in contempt. It is actually impossible. C Especially when advocates publicly allege that the action of the Judge-President undermines the constitutional governance of Namibia. The longer the Court keeps silent on this question, the deeper the distrust becomes. The judiciary ought to know this better than anyone else.' (Translated by Editor.) D Next to the editorial comment in the 'Republikein ' appeared a cartoon portraying two men, one purportedly being Minister Jerry Ekandjo plucking leaves from a sunflower one by one, saying: 'workpermit ... ... deportation ... workpermit ... deportation ... workpermit ... deportation' E and the other of the Prime Minister responding to what the Minister was doing by saying 'Is this how you do it, Jerry?' The comments in the 'Republikein ' are in spirit and nature a carbon copy of those made by the amibian . F The hereinabove stated events are so notorious, if not common cause, that I can, should

and do take judicial notice of them in respect of their substance and the perception created in the mind of the public by them. G Clearly the three antagonists' pronouncements are not only a blighted and scurrilous attack on my integrity as a Judge accusing me of dereliction of my judicial duties, remissness and inaction but also scandalising me by accusing me of conspiring with those persons who are guilty of contempt of court and of being an accomplice in H the abrogation of the rule of law. These pronouncements are a deliberate attack on and a threat not only to my independence, dignity and effectiveness as a Judge but also to that of my fellow Judges and the judiciary as a whole as provided for in art 78(3) of the Namibian Constitution. It is for that purpose that the pronouncements I made by these antagonists are extremely relevant not only to the future conduct of these matters in casu but also the future proper functioning of the judiciary and the position of Judges in Namibia. I shall now proceed to give a short history of the two Sikunda matters presently pending before this Court, ie case No A318/2000 ('The J 2001 NR p73 TEEK JP main application') and case No A327/2000 ('The contempt of court case'). A The applicant, Ngeve Raphael Sikunda, the son of the detainee José Domingo Sikunda, brought an urgent application on motion proceedings of which the notice of motion reads as follows: 'BE PLEASED TO TAKE NOTICE THAT application will be made on 24 October 2000 at 17h0 or as soon thereafter as counsel nay B be heard for an order in the following terms: 1. Condoning applicant's non-compliance with the provisions of Rule 6(12) of the rules of this Honourable Court and allowing applicant to bring this application on an urgent basis; C 2. Setting aside the decision of the Minister of Home Affairs dated 16 October 2000 ordering the removal of José Domingo Sikunda from Namibia and declaring the aforementioned person persona non grata . 3. Releasing immediately from respondent's custody the person of José Domingo Sikunda. 4. Restraining the respondent's Minister of Home Affairs and or his officials from unlawfully detaining and harassing José D Domingo Sikunda further. 5. That the Minister of Home Affairs, the Honourable Mr Jerry Ekandjo be ordered to pay the costs of this application de bonis propriis , alternatively that respondent pays the costs of this application on an attorney and own client scale. 6. Further and/or alternative relief'. E Pursuant to this and on the same day 24 October 2000, the following order was made by Manyarara AJ, a Zimbabwean citizen:

'Having heard advocate Cohrssen, counsel for the applicant and Mr Asino, counsel for the respondent and having read the notice of motion and other documents filed of record: It is ordered: F 1. That applicant's non-compliance with the provisions of Rule 6(12) of the rules of this honourable Court is condoned and leave is granted to the applicant to bring this application on an urgent basis. 2. That a rule nisi do hereby issue calling upon the respondent to show cause, if any, of this Court on Friday 10 November 2000 at 10h00 why: G 2.1 The decision of the Minister of Home Affairs dated 16 October 2000 ordering the removal of José Domingo Sikunda from Namibia and declaring the aforementioned person persona non grata should not be set aside. 2.2 the person of José Domingo Sikunda shall not be immediately released from custody pending the final determination H of this application. 2.3 The respondent's Minister of Home Affairs and or his officials should not be restrained from unlawfully detaining and harassing José Domingo Sikunda further. 2.4 The Minister of Home Affairs: The honourable Mr Jerry Ekandjo shall not be ordered to pay the costs of this application I de bonis propriis , alternatively pays the costs of this application on an attorney and own client scale. 3. That prayers 2.1 to 2.3 above shall operate as an interim interdict.' On 26 October 2000 the Government Attorney anticipated the return date of which the notice of set down reads as follows: J 2001 NR p74 TEEK JP 'KINDLY TAKE NOTICE, that in anticipation of the return date , this matter is set down for hearing on Tuesday 31 of October 2000 at A 10h00 or as soon thereafter as counsel may be heard. KINDLY set the matter down accordingly.' On 31 October 2000 Levy AJ, after hearing argument, gave the following order: B 'Having heard Mr Smuts and with him Mr Cohrssen for the applicant and Mr Frank SC and with him Mr Asino for the respondent and having read the rule nisi issued by this Honourable Court on the 24 October 2000, the notice in terms of Rule 30 and other documents filed of record: It is ordered: C 1. That the respondent's notice of set down dated 26 October 2000 is set aside. 2. That the applicant file its affidavits in reply to those filed by the respondent by 7 November 2000. 3. That respondent permits access to José Domingo Sikunda by his legal representatives and if necessary to transport him to D Windhoek for that purpose of preparing and filing affidavits. 4. That respondent refrains from deporting the said José Domingo Sikunda to any place whatsoever until this matter is finally adjudicated upon which shall include final adjudication on appeal.'

It is common cause that the second respondent failed to comply with the Court's interim order of 24 October E 2000 for reasons stated in his answering affidavit deposed to on 31 October 2000 on which I shall not dwell for the obvious reason that both matters are pending. Pursuant to the Minister of Home Affairs' refusal to comply with the order the applicant, Ngeve Raphael Sikunda, F brought an urgent contempt of court application on motion proceedings on 27 October 2000, of which the notice of motion reads: 'BE PLEASED TO TAKE NOTICE that application will be made as a matter of urgency before this Honourable Court on behalf of the above-named Applicant on Friday, 27 October 2000, at 14h00 or as soon thereafter as counsel for the applicant may be heard for G an order in the following terms: 1. Declaring that the applicant's non-compliance with the forms and service provided for in the Rules of this honourable Court be condoned and that this matter be dealt with as one of urgency in terms of Rule 6(23). 2. Calling upon the respondents to show cause, if any, on a date to be determined by this honourable Court, why an order H should not be issued: 2.1 committing the second respondent for contempt of court, and sentencing the second respondent to imprisonment, for periods as this honourable Court may deem fit and ordering the first respondent to pay a fine, alternatively that such imprisonment be suspended in its entirety on condition that the respondents comply with the order of this Court of 24 October 2000; I 2.2 directing that the respondents pay the applicant's costs, jointly and severally, on an attorney and client scale, alternatively that the second respondent pays the applicant's costs de bonis propriis . 3. Granting such further and/or alternative relief as this honourable Court deems fit. J 2001 NR p75 TEEK JP TAKE FURTHER NOTICE that the affidavit of Ngeve Raphael Sikunda together with supporting annexures will be used in support A hereof. KINDLY place the matter on the roll as a matter of urgency for hearing accordingly.' On 27 October 2000 Levy AJ, after hearing argument, postponed the matter to 31 October 2000. On 31 October 2000 Levy AJ made the following order: B 'Having heard Mr Smuts and with him Mr Cohrssen for the applicant and Mr Frank SC and with him Mr Asino for the respondent and having read the notice of motion and other documents filed of record: IT IS ORDERED C 1. That the applicant's non-compliance with the forms and service provided for in the Rules of this honourable Court is hereby condoned by virtue of the provisions of Rule 6(12). 2. That a rule nisi do hereby issue calling upon the second respondent to show cause if any, on Friday, 10 November 2000 why: 2.1 second respondent should not be found guilty of contempt of court, and D

2.2 Second respondent should not be sentenced, if found guilty, by that Court on the said day after having heard evidence in mitigation and counsel for the respondent. 2.3 Second respondent should not pay the costs on a scale to be determined by that Court. E 3. That respondents filed their opposing affidavits to this application by 6 November 2000 and applicant shall file replying affidavits to the opposing affidavits by 8 November 2000'.

specifically direct the respondent to release the detainee pending the outcome, pending the return date in the main application. your Lordship, I'm not making any submissions on the contempt matters that is being done My Lord, this is a separate issue. My Lord if your Lordship on the return date finds that the rule should be discharged D then the detainee can be immediately be rearrested if there is a lawful basis for him being in detention, till that time'. This application was opposed by Ms Ya Toivo .

On 10 November 2000, before me, Ms Ya Toivo raised a point in limine by requesting that the main application be heard first, which request was strenuously opposed by Mr Smuts who emotionally submitted that the F contempt of court must first be dealt with. The contempt of court matter was then fully argued and the ruling was reserved and the rule nisi in both matters were tentatively extended to 20 November 2000. On 20 November the return dates in both matters were again extended to 29 November 2000. G On 29 November 2000 when the cases were called only Mr Smuts and Ms Ya Toivo were in attendance. The parties were informed in advance through the Registrar that the ruling and reasons in the contempt of court case were not ready and the return dates in both matters were to be extended. Before the rule nisi were to be extended I said the following: H 'Yes. Counsel I am quite aware of the urgency of these matters, especially the main application, but equally of their importance, the ruling is not ready at the moment. I intend giving the ruling on the 12 January 2001 and in the circumstances the ruling in the I contempt case will then be extended to the 12 January and the rule nisi in the main application to the 1 February 2001. I understand that date has been cleared with counsel for argument then'. Mr Smuts then rose and said the following: 'My Lord may I just say on behalf of the applicant we understand your Lordship's J 2001 NR p76 TEEK JP position and that your Lordship is presently considering the explanations that has been provided to your Lordship in the contempt, A that the contempt that the constitute contempt or not. May I just read with all, with the greatest respect make the following submissions to your Lordship that quite apart from the contempt my Lord and we understand your Lordship is considering that. Your Lordship there is an order at this Court of 23 October which (indistinct) and set aside and discharged on the return date, B must be obeyed. We asking that your Lordship, pending the ruling which your Lordship will give on contempt because it is entirely a separate matter if the Minister was in contempt or not that whether the order should be obeyed in the meantime or not. We are asking your Lordship specifically to direct that pending your ruling my Lord, that your Lordship direct that the detainee be released C pending your ruling because that is not touched by the contempt matter. The contempt only deals with whether the Minister is in contempt or not my Lord. The order which was granted by this Court on the 24 October 2000 must be obeyed until it is set aside and discharged and we ask that your Lordship

After having heard counsel I gave the following order: E 'I have an application to order the compliance with the Court's interim order to have the detainee Mr Sikunda released pending the determination of the main application. I shall not make such an order at this stage and the reasons will appear from the reasons for the ruling on the 12 of January 2001 or thereafter. The following order is then made: 1. The ruling in respect of the contempt of court application will be given on the 12 of January 2001. The rule nisi is extended F till then at 10h00; 2. The argument in respect of the main application shall be heard on the 1 of February 2001 at 10h00 the rule in respect thereof is extended till then'. Mr Smuts then immediately brought an application for leave to appeal against this ruling on the ground that '... G another Court would come to a different conclusion and for that reason I respectfully ask for leave to appeal against it'. This application was also opposed by Ms Ya Toivo . The application was refused. The same day, 29 November the media release was issued and was published in 'The amibian ' and the H 'Republikein ' the next day. On 1 December 2000 a letter signed by G Dicks, Secretary-General of the Bar Council of the Society of Advocates of Namibia was addressed to the Chief Justice in re: geve Raphael Sikunda v Government of the Republic of amibia and the Minister of Home Affairs, which in part reads: I 'We are of the opinion that because of the repeated failures by the High Court to direct compliance with the interim order of Manyarara AJ, a series of very serious irregularities have been committed since 27 October 2000, when the committal application was first lodged and initially heard by the Honourable Mr Justice Levy. J 2001 NR p77 TEEK JP It is the Society's opinion that the refusal of the Honourable Judge-President, Mr Justice Teek, to order the release of Mr Jose A Domingo Sikunda in the above-mentioned circumstances amounts to a further irregularity in the proceedings as envisaged in s 16 of the Supreme Court Act... In all the circumstances, the Society of Advocates respectfully requests you to exercise the jurisdiction conferred upon you in terms of the Supreme Court Act mero motu , as envisaged in s 10. The Society is of the view that B the very fact that a person is imprisoned on a continuous basis, while the High Court of Namibia

has already ordered his release with immediate effect, is sufficient reason for the invocation of s 16 on a very urgent basis.' It is interesting to note that the review proceedings request strangely came from the Bar Council of the Society of Advocates and not the applicant. To date there has been no dissenting voices relating to the media release C and/or the letter to the Chief Justice from any member(s). On 12 December 2000, the Chief Justice replied as follows: 'Further to your letter of the 1 December last I must inform you that I am not convinced that an irregularity occurred in the D proceedings which will enable me to use my powers of review in terms of s 16 of the Supreme Court Act Act 15 of 1990. In coming to this conclusion, the merits or demerits of the cases made out by the respective parties did not play any role and was not considered by me. To consider when an irregularity occurred in the proceedings in this instance there seems to me to be E mainly two considerations. The first is whether the Court refused to exercise a discretion as a result of a mistake of law and thereby prevents the aggrieved party from having his case fully and fairly determined. (See S v Bushebi 1998 NR 239.) Another possibility is also if the repository of the power, through a mistake of law, prevents himself from exercising his discretion. F In the matter under discussion I do not have the benefit of the Judge's reasons and can therefore only speculate. However, given the fact that the learned Judge had the documents of both cases before him, that he heard full argument on the contempt matter and that he heard, more than once it seems, argument as to whether he should direct compliance with the previous Court order, there is no conceivable reason that I can conclude that he refused to grant the order because he thought that he did not have a G discretion or that for some or other reason he mistakenly thought that he was prevented from doing so and did not apply his mind. Such refusal did also not prevent the case from being fully and fairly argued. It had no influence on the order already granted and did not effect the proceedings which flowed from that. On the records of the proceedings put before me and the submissions made by counsel in Court it seems to me that counsel for the applicant followed the correct procedure by asking for leave to H appeal in order to upset the result of the refusal of the order rather than to attack the conduct of the proceedings. (Bushebi's case.) You also drew my attention to possible irregularities committed by Levy AJ, by not ordering the release of the applicant on the 27 of October 2000. I do not know whether your confusion is that the Court should have done so mero motu because I could find no I application in that regard. In fact when the matter came before the Judge on the 31st he, during argument, raised the issue and said that because of the documents filed he could not order the release under those circumstances. He was then assured by counsel for the applicant that another Court had already made such an order and that he was not required to make such an order. I cannot see that under these circumstances any irregularity occurred in the proceedings. J 2001 NR p78 TEEK JP

You lastly further mentioned that the society was of the view that the fact that the applicant was imprisoned notwithstanding a Court A order for his release was sufficient ground to invoke s 16. Without considering such question as to whether this Court can interfere where proceedings have not yet ben finalised, the fact of the matter is that this Court can only correct irregularities in proceedings. I know of no other proceedings other than those in the Court which I have found, on the documents before me not to be irregular'. B The three antagonists' attack upon myself and the Judiciary followed on the heels of a similar campaign of intimidation and scandalization of the High Court Judges and the Judiciary by the second respondent and certain Swapo councillors in the National Council and certain members of the Swapo Youth League. These events are C so notorious that for the purposes of this judgment I can take judicial notice of them insofar as their substance is concerned. I shall deal with them as briefly as I can as they have been alluded to by the 'Republikein ' in their editorial comment. D Pursuant to an interim Court order issued by the High Court in the Osire Stars case: goma v Minister of Home Affairs , case No A206/2000, on 21 July 2000 restraining the Minister of Home Affairs, the second respondent, from detaining, returning the refugees to the refugee camp at Osire or from deporting them, the second E respondent vowed in public to disobey the order and any similar orders in future on the ground of bias on the part of the Court. He launched a scathing attack on what he referred to as 'foreign Judges'. He had inter alia the following to say: 'Any reactionary Judges that does not want to adhere to the policy of this government, he or she is free to pack I'm going to F consider, their work permit they are not above the law, they have been elected by the people they have not been elected by the people, they have to do what the majority of the country wants. There are also some of the Judges with work permits I'm considering withdrawing those work permits. We fought for this country G and they should know what we fought, people fought for this country, we cannot allow refugees to come to Namibia to do whatever refugees belong in Osire we have to keep all refugees in Osire and we will not allow refugees to escape from Osire. We will keep all the refugees in Osire and we will see who will come to Osire to take them out, such a person we will arrest. If you see that person who protect Osire, he has the right to leave Namibia instead of coming to spoil our country here.' H Needless to say, the second respondent laid himself open to the charge of contempt of court. Pursuant to the second respondent's pronouncements, consultations between the Head of State, His Excellency the President, Dr Sam Nujoma, the Judges of the Supreme and High Courts and the Minister of Justice and I Attorney-General were held which resulted in the second respondent apologising to the Judges, which apology was accepted unconditionally. Assurances given by the Head of State to the Judges led to a Government statement on the Judiciary in Namibia by the Minister of Justice and Attorney-General which in part reads: J

2001 NR p79 TEEK JP '... it has not been, it is not and it shall not be the policy or practice of the Government to interfere with the independence of the A judiciary or orders or judgments of courts of law. The lower courts, the High Court and the Supreme Court shall continue to operate in accordance with the provisions of the Constitution and relevant laws and the Rule of Law. The law enforcement agencies of the State shall continue to carry out their functions in accordance with the Law of Namibia. B Namibia has acceded to a number of important international conventions among these are notably, the African Charter on Human and Peoples' Rights, the International Covenant on Civil and Political Rights, the United Nations Conventions on Refugees (1951) and the Organization of African Unity Convention on the Status of Refugees. C Namibia is aware of its international obligations under these Conventions. In this connection the international community should be assured that Namibia is committed to honour, respect and carry out its international obligations under such Conventions without fail. This undertaking includes, of course, the treatment of the applicants in the Osire Star case of Alfonso Ngoma and the Minister of Home Affairs. I am sure this explanation cleared the misunderstanding and the issues raised by Honourable Ekandjo are now put to rest once, D and for all. We should now look forward, march forward and work in peace and harmony in our beloved country.' Pursuant to the second respondent's apology and the government's reassurance of its commitment to the rule of law and the independence of the judiciary and in the spirit of national reconciliation and nation building the Judges E decided not to press for contempt of court charges against the second respondent. But it was made unequivocally clear by the Judges that any official or person who makes himself guilty of contempt of court in future would face the full brunt of the law. F However, that did not put the matter to rest once and for all. The ruling party loyalists drummed up support for the second respondent and embarked upon a crusade of intimidation and defamation, inter alia by the Swapo Youth League and certain Swapo Councillors in the National Council. As a result of the attack upon 'foreign Judges' the G Judge who issued the rule nisi in the Ngoma (Osire case), a Zambian citizen, withdrew from that case. That matter was eventually amicably settled between the parties. I hope the foregoing is a fair and succinct historical background and footprints of the judicial morass the Judiciary H and Judges are plunged into today which caused untold and irreparable harm both nationally and internationally to our Judiciary. I shall now proceed to deal with the events of 29 November 2000, as briefly as I can. Mr Smuts' application of 29 November was misconceived. He knew very well that there was already an interim I Court order subsisting for the immediate release of Sikunda, the detainee. An order which was disobeyed and which led to the contempt of court

proceedings against the Government and the Minister of Home Affairs. Furthermore, an interim order was issued on 31 October 2000 calling upon the second J 2001 NR p80 TEEK JP respondent to show cause, if any, on Friday 10 November 2000 inter alia why he should not be found guilty of A contempt of court and if convicted, should not be sentenced. The following transpired in Court on 31 October 2000. 'Court: ... I can see no reason why if convenience for society is much that Mr Sikunda unfortunately should have to suffer the B indignity of still being incarcerated until the judgment is given in this matter, the final judgment and in those circumstances I've got to weigh up the one against the other. I don't know this according to the reports to this affidavits, which I have just read of the respondent Mr Sikunda may very very well be a very dangerous person according to those affidavits. C Mr Smuts : My Lord,there is an order for his release. Court: I can't order his release in those circumstances. Mr Smuts : No, my Lord, you dont't have to order his release; another court has done so already and that court is functus officio. A court has ordered his immediate release. ' (Emphasis provided.) No application was brought on 31 October 2000 before Levy AJ to order the second respondent to release D Sikunda. Mr Smuts in fact recognised the fact that there was already a court order in existence calling for the release of the detainee. Yet, on 29 November 2000 Mr Smuts had a change of heart and brought such an application. The Chief Justice had the following to say in this regard: E 'You also drew my attention to possible irregularities committed by Levy AJ by not ordering the release of the applicant on the 27 and 31 of October 2000. I do not know whether your contention is that the Court should have done so mero motu because I could find no application in that regard. In fact when the matter came before the Judge on the 31st he, during argument, raised the issue F and said that because of the documents filed he could not ordered the release under those circumstances. He was then assured by counsel for the applicant that another Court had already made such an order and that he was not required to make such an order. I cannot see that under these circumstances any irregularity occurred in the proceedings.' G Despite the fact that Mr Smuts wittingly and deliberately did not apply for such an order and in fact expressly conceded that there was already a Court order to that effect, he for mysterious reasons best known to himself, brought his application on 29 November. He knew, or ought to have known, that another order of this court would H be superfluous. This conclusion is borne out by the nature of the interim order he asked for in the event of the second respondent's conviction and in the notice of motion namely, committing the second respondent for contempt of court and sentencing him to imprisonment for periods

in the court's discretion and ordering the first respondent to pay a fine, alternatively, that such imprisonment be suspended in its entirety on condition that the I respondents comply with the order of 24 October 2000. This was the only logical and effective manner to have dealt with the contempt of court matter provided the respondents were convicted of J 2001 NR p81 TEEK JP contempt of court, rather than giving orders upon orders just to be disobeyed, if regard is had to the attitude of A and reasons advanced by the respondent or the second respondent for refusing to purge himself by releasing the detainee. It is trite law that court orders should not only be effective but also sensible. How many orders with the same effect was the court supposed to issue in the main matter and how many times are these supposed to be B disobeyed? The second respondent pursuant to the call upon him by the Court stated in his grounds why he was justifiably and bona fide in contempt of court and thus exempted from having to purge himself. The primary reason given by C the second respondent was that the detainee was a self-confessed Unita representative or collaborator and as such a danger to the national security. In the light thereof the Namibian Government and the second respondent had an international obligation to honour and implement international treaties and United Nations resolutions D calling for sanctions against Unita. On that basis he denied that his order declaring the detainee a persona non grata was unlawful and therefore his reasons for disobeying the court order were justified and bona fide . I was therefore called upon to consider and rule on the strength and validity of the respondent's reasons whether or not E the grounds so raised in defence were justified and bona fide . Before I could do so, the Bar Council and the said newspapers prejudged my ruling and in their wisdom dictated what I should do or should have done. Incidentally, my ruling on the contempt of Court matter was not ready on 29 November 2000, as I was still waiting F for the transcript of the court proceedings of 10 November which was made available only on 7 December 2000. Apart from a number of national and international authorities and legal instruments cited and relied upon by counsel which I had to read, digest and consider, I needed the transcribed record in order to ensure that I have G not missed, misunderstood or overlooked anything, especially, pertaining to the issue whether I should also hear the main application before giving judgment in both matters. The impression has been created by the three antagonists' pronouncements inter alia that I unduly delayed the H ruling because I was due to attend a 'foreign conference and thereafter go on vacation' while a detainee languishes in detention. For the foregoing reasons this impression alluded to is unjustified and without substance.

The fact that I was to go on vacation from 15-31 December 2000 is neither here nor there, as it is inconsequential because I could have anticipated the ruling, upon notice to the parties through the Registrar, and I given it prior to 12 January 2001 or 1 February 2001. That much Mr Smuts confirmed wholeheartedly and 'With great respect.' On 10 November. The following transpired: J 2001 NR p82 TEEK JP 'Smuts : ... And I just wanted to enquire with great respect from your Lordship as to whether your Lordship contemplates making a A ruling in due course before we assemble? Court: That is one thing I wanted to know from counsel, can I anticipate my ruling ... and in the event I have a ruling before then, can I anticipate the date and give the ruling. Mr Smuts : Most certainly my Lord'. B In the circumstances the adage 'justice delayed is justice denied' relied upon by 'The amibian ' to launch their bigoted attack on me and the judiciary must be seen in its proper perceptive and context and not blindly be applied in each and every matter brought before a court and where there is some delay. It is not in every case C where justice is delayed that justice is denied. It is only applicable where the delay is undue and unreasonable. There comes a time in the court's calender when it is not only inevitable but also inescapable and necessary for justice to be 'delayed', when extraordinary circumstances so demand, like in casu where the liberty of a detainee D and a threat to the national security is at stake. It would be folly of judges to be forced into giving ill considered and precipitated judgments under pressure from internal and/or external forces. Judges should not only be independent but should also be seen to be independent, as provided for in art 78(3) of the Namibian Constitution, namely: E 'No member of the Cabinet or of the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the state shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.' F Surely, 'any other person' includes members of the Society of Advocates, the Bar Council and newspaper editors. Like Judges, they are not an elite club or holy cows and a law unto themselves, but are subject to the Constitution and the laws of Namibia. If this Court ever expected any understanding (not sympathy) and G assistance from anyone, it was from the members of the Society of Advocates. But, now, I am not that sure, anymore. The cardinal principle of our common law that the exceptio recusationis requires an objective scrutiny of the evidence, does not mean that the exceptio recusationis is to be applied in vacuo.H 'The test to be applied therefore involves the legal fiction of the reasonable man someone endowed with ordinary intelligence, knowledge and common sense ... It is important, nevertheless, to remember that the notion of the reasonable man cannot vary according to the individual idiosyncrasies of the superstitious or the intelligence of a

particular litigant ... and I would add of member of the public.' BTR Industries South Africa (Pty)I Ltd and Others v Metal and Allied Workers' Union and Another 1992 (3) SA 673 (A). Mindful of the presumption of integrity and competence in favour of Judges, and the oath I took as a Judge to fearlessly administer justice to all persons without favour or prejudice (bias) in accordance with the J 2001 NR p83

(1) there must be a suspicion that the judicial officer might, not would, be biased. (2) The suspicion must be that of a reasonable person in the position of the accused or litigant or member of the public. (3) The suspicion must be based on reasonable and reliable grounds. J 2001 NR p84 TEEK JP (4) One which a reasonable person would , and not might have. A

TEEK JP

See S v Roberts 1999 (4) SA 915 (SCA).

law of the Republic of Namibia, I cannot possibly, in the circumstances in casu ignore the hard reality in whatever A form justice I am administering would manifest itself to all concerned including the public out there. In the face of such flagrant and blatant ridicule and interference, it is impossible for the general public and those concerned, to perceive that I shall conduct these matters in such a way that my open-mindedness, impartiality and fairness B are manifest and revealed to all. To continue with these matters would amount to or result in a mockery and travesty of justice as there would always be a reasonable apprehension of bias in the mind of the reasonable person that I was influenced by the three antagonists' pronouncements. Whatever ruling I now give in these C matters or either of them would be perceived as having been midwived and nursed by the three antagonists. Compare Rondalia Versekeringskorporasie van SA Bpk v Lira 1971 (2) SA 586 (A) at 590F-G and S v Rall 1982 (1) SA 828 (A).

I am satisfied that the facts in the Sikunda matters and enumerated hereinabove have established a ground for a reasonable apprehension of bias in the mind, objectively justifiable, of the reasonable, informed person. These B facts are not only common cause but cogent and convincing. The members of the Society of Advocates and the aforesaid newspapers that joined the fray not only took umbrage at the 'undue delay' and failure to grant another order(s) for the release of the detainee but also deliberately and explicitly dictated the specific order I should give C or should have given. For failing to accede to Mr Smuts' request I was made out to be a judicial pariah, who conspires with and encourages officials to disobey court orders and in so doing abrogates and threatens the rule of law in Namibia.

The test for recusal on the ground of perceived bias is 'apprehension of bias' and the question is whether a D reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Judge had not or would not bring an impartial mind to bear on the adjudication of the case. The reasonableness of the apprehension had to be assessed in the light of the oath of office taken by the Judges to administer justice E without fear, favour or prejudice, and their ability to carry out that oath by reason of their training and experience. It had to be assumed that they could disabuse themselves of any irrelevant personal beliefs or predispositions. They had to take into account the fact that they had a duty to sit in any case in which they were not obliged to F recuse themselves. At the same time, it should never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse himself/herself if there were G reasonable grounds on the part of a litigant or the public for apprehending that the judicial officer, for whatever reason, is not or would not be impartial. The apprehension of the reasonable person had to be assessed in the light of the established true facts that emerged during the hearings of the case(s). Compare President of the Repubic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC); H and South African Commericial Catering and Allied Workers' Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC). The requirements for the test for the appearance or apprehension of judicial bias can be summarised as follows: I

If there was ever a case of the highest order of gross interference and intimidation in the Namibian legal history, D this is it. The aforementioned antagonists not only launched a scurrilous attack on the court but abominably prejudged the ruling in matters pending before the Court. There can be no doubt in the mind of the informed, objective bystander (and in mine) that the undisputed facts E prove 'that the judicial conscience had been disturbed', warranting my disqualification. See a decision of the High Court of Grenada, The Court of Appeals, Report (1987) LRC (Const) 568 at 591 and 597 and also R v Cullen New Zealand Court of Appeal, Report (1993) 1 LRC 610 at 614; and S v Radebe 1973 (1) SA 796 (A) at 812A. F In other words, the relevant question is, considering all the established facts, whether or not the parties or the public might entertain a reasonable suspicion that the judge may not bring an impartial and unprejudiced mind to the matter before him. If so, then the Judge ought not to proceed to hear the matter. See Crossby v R 1991 LRC G (Crim), Australia 32 at 47b. In S v Heita and Another 1992 NR 403 (HC) O'Linn J, as he then was, mero motu raised the question of recusing himself but eventually declined to do so. The question of recusal arose out of an attack of general nature against H the Judges of the High Court of Namibia partly because all were white at the time and the Judge concerned was accused of having previously imposed lenient sentences in a treason trial involving white accused persons. The Heita case is distinguishable from the present one. Today the majority of the

Judges are black and although I the unprecedented conduct of the members of the Society of Advocates was not pertinently and explicitly directed at the Black Bench it was not only aimed at me, who happens to be an indigenous black and the Judiciary - accusing it and me of dereliction of judicial duties and the abrogation of the rule of law but also dictated J 2001 NR p85 TEEK JP to the Court what the ruling should be, and further, how and when it should have been given. Not only did they A pre-empt but they also prejudged the ruling. Such a situation leaves me with Hobson's choice, namely to recuse myself. Any ruling or judgment I give must not only be understood and be seen but also be perceived to be my own, despite the consideration of any eventual adverse and hostile publicity and criticism that inevitably follow B such recusal, I find myself at the end of my tethers as I am placed in an unenviable dilemma: If I convicted the respondents of contempt of court and suspended the sentence imposed on condition that the detainee be released it will be perceived that I was influenced and intimidated by the antagonists. If I gave a different ruling a C converse perception will prevail and the antagonists will claim vindication and exaltation. After an in-depth discussion of the relevant constitutional provisions pertaining to the Judiciary, peace, reconciliation and hope for the future and the no return to the wrongs of the past in Namibia, with new role D players in old roles, O'Linn J posed the following question in the Heita case at 414H: 'Can a Judge effectively perform his onerous task if people are allowed to continue undeterred to scandalise the Judges - to misrepresent, to agitate, to incite, to demand, to dictate and even to threaten from public platform, from the bush and from the E streets, through the media and through the structures of their parties, trade unions and churches? The answer clearly is in the negative.' (My emphasis.) I agree. It is therefore my considered view that a Judge should not adopt an attitude of judicial arrogance and F self-righteousness where reliable grounds for the existence of reasonable apprehension of bias have been established by declining to recuse himself, because the exigencies of justice by far outweigh the consideration of any eventual and inevitable adverse and hostile publicity. 'It is accordingly incumbent on any Judge to recuse G himself from any matter in respect of which he is reasonably suspected of bias towards or against one of the parties' or grounds for such apprehension established. Moch v edtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 8H-I, Hefer JA relying on BTR Industries (supra ). Ms Ya Toivo in her effort to persuade me not to recuse myself 'in the interest of the independence of the judiciary H and of justice', because according to her 'What will be the implications, the impact on our system of justice if a Judge of this Court, let alone the esteemed Judge-President, is compelled to step down because of the improper and

possibly contemptuous public statements of a small group of self-appointed extra-judicial Judges, when they I attempt to both argue and judge a case in the court of public opinion?' In the result, after a long and serious consideration of all the relevant facts and applicable legal issues I come to the conclusion of recusing myself from both these matters because my credibility as a J 2001 NR p86 Judge in these matters has been tainted and put in question. Whatever ruling I give will have no judicial credibility A and legitimacy. It is therefore in the interest of justice that I should recuse myself and I so recuse myself. Applicant's Legal Practitioners: Louw & Partners . B Respondents' Legal Practitioners: Government Attorney . C