RETIRED Supreme Court Judge Pio Teek argued this week that his rights were trampled in Namibia's highest court when three South African judges set aside his discharge on six of the eight charges he was facing in a trial in the High Court in 2006.
"The judges messed up," Teek charged during a hearing before Zimbabwean High Court Judge Nicholas Ndou, appointed as an acting judge of Namibia's High Court, about the three judges of South Africa's Supreme Court of Appeal who in April 2009, while serving as acting judges of appeal of Namibia's Supreme Court, ruled in favour of a State appeal against Teek's acquittal on charges which included counts of abduction and child rape.
The charges dated from January 2005. After Teek's trial continued in the High Court in Windhoek following the Supreme Court's ruling, he was again found not guilty by another South African judge, Ronnie Bosielo, in December 2010.
The judges who sat on the appeal in the Supreme Court – Piet Streicher, Kenneth Mthiyane, and Fritz Brand – failed in their constitutional and legal duties, and trampled on his fundamental rights, Teek charged. He claimed they did not read the record of his trial, and in an act of "utter incompetence" simply relied on the prosecution's written arguments when they wrote their appeal judgement.
They also made unnecessary comments in their judgement and, in doing so, tried to prescribe to his trial judge to convict him on some of the charges he was facing, Teek claimed.
Now that he is trying to sue the three judges in their personal capacities, Government is giving him no assistance in having summonses served on them in South Africa, he further claimed.
Although he has been acquitted again, the State has indicated that it also wants to appeal against that judgement, he told Judge Ndou.
"Eight years down the line, I'm still on the cross," Teek said.
The arguments heard by Judge Ndou were on an exception which the government, the president of Namibia, the minister of justice, and the attorney general raised against a damages claim which Teek instituted against them after the Supreme Court's ruling.
Teek is suing the president, the government, the minister of justice and the attorney general for a total of N$6,873 million, which he claims are earnings that he has lost and other damages he has suffered as a result of his retirement from judicial office in October 2005 – about eight and a half months after he had been arrested and charged on child abduction, rape and other charges in early 2005.
Lawyer Nixon Marcus, representing the four respondents, agued that Teek's claim, insofar as it is based on allegations that the Supreme Court judges had been biased and had acted maliciously or corruptly against him, should fail at the first hurdle, as the High Court does not have jurisdiction to sit in judgement on the Supreme Court, which is a superior court.
What Teek in effect is asking the High Court to do is to review and pass judgement on a decision of the Supreme Court, Marcus argued. In terms of the Constitution, that cannot be done, he said.
Marcus also argued that Teek had failed to make out a case that the Supreme Court judges had been biased against him or failed to deal with the evidence in his trial in a proper manner.
A judicial officer can only be held liable for damages for something done in the course of his judicial duties if he has acted in bad faith, and that is a claim which Teek has not managed to back up, Marcus argued.
Judge Ndou reserved his judgement after hearing the arguments.