11 December 2012

Namibia: Ex-Magistrate Appeals Against Dismissal

DISMISSED Magistrate Leah Shaanika wants her old job back.

Shaanika is appealing against her dismissal, which ended her career as a magistrate on a low note at the end of June this year.

Her appeal against her dismissal was due to be heard in the High Court in Windhoek on Friday, but was instead postponed to a date to be arranged with the court’s registrar.

Shaanika asked Zimbabwean Judge Nicholas Ndou, appointed as an acting judge of the High Court of Namibia to hear her appeal, for a postponement because her father died about two weeks ago and this prevented her from finalising her arguments in the matter in time.

Norman Tjombe, who is representing the Magistrates’ Commission in the appeal, also agreed to a postponement, since the complete record of the disciplinary hearing which led to Shaanika’s dismissal had not yet been filed with the court.

Judge Ndou ordered that the hearing of the appeal should be postponed to a date within the first term of the court next year.

Former Justice Minister Pendukeni Iivula-Ithana dismissed Shaanika from her position as magistrate at the end of June, after a legal battle between her and the Magistrates’ Commission about the commission’s request that Shaanika should be removed from her post.

The Magistrates’ Commission obtained an order directing the justice minister to dismiss Shaanika in the High Court in June 2010. The minister then challenged this judgement on appeal. The Supreme Court also ruled in favour of the Magistrates’ Commission when it dismissed the justice minister’s appeal on June 21.

A fellow magistrate who presided at Shaanika’s disciplinary hearing found her guilty on six charges of misconduct in October 2007.

Those charges were based on allegations that she had used derogatory language towards a staff members at the Windhoek Magistrate’s Court in March 2004, that she had used derogatory language towards a person who appeared before her in court on a maintenance charge in October 2004, that she had refused to deal with a civil case in July 2003, that she had been involved in the selling of lunch packets at court, and that she had been involved in a public spat in March 2004 which brought the magistracy into disrepute.

In a notice of appeal which Shaanika has filed at the High Court she is claiming that the investigation of the misconduct charges she was facing was not done in accordance with the Magistrates Act or the Constitution.

The procedure followed by the presiding officer with her disciplinary hearing was so unfair that the hearing was a nullity, she is arguing.

She referred to two occasions when the presiding officer refused to grant her a postponement of the hearing. The first of these refusals resulted in the withdrawal of her legal representative from the hearing, and after the second refusal she also did not continue to participate in the hearing.

Shaanika is also arguing that the presiding officer made an error when he did not give her an opportunity to prepare closing arguments after her lawyer had withdrawn from the hearing, and that she did not get an opportunity to place mitigating factors and comments before him before her disciplinary hearing came to an end.

Based on all the evidence the presiding officer could not reasonably have made a finding that she was guilty on all of the six charges against her, she is further arguing in her notice of appeal.

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