RETIRED Supreme Court Judge Pio Teek yesterday suffered a legal defeat in his quest to sue Government over the judgement in which his acquittal on six criminal charges was set aside by the Supreme Court in April 2009.
In a judgement delivered in the High Court in Windhoek, Zimbabwean Judge Nicholas Ndou found that the High Court does not have the jurisdiction to deal with the claim which Teek instituted against Government, the president, the minister of justice, and the attorney general in April 2010.
Judge Ndou reasoned that the indirect result of the case which Teek has lodged against the four defendants is that the High Court would have to review the thought process of a judgement of the Supreme Court. The Supreme Court’s judgement, which was handed down in April 2009 by three judges of South Africa’s Supreme Court of Appeal who had been appointed as acting judges of Namibia’s highest court, is the foundation or stepping stone of Teek’s claim, Judge Ndou remarked.
In terms of the Supreme Court Act, an order of the Supreme Court cannot be appealed against or taken on review, Judge Ndou noted. He also noted that the Constitution states that decisions of the Supreme Court are binding on all other courts of Namibia and all persons in Namibia, unless it is contradicted by the Supreme Court itself or by an act of Parliament which had been lawfully enacted.
The ruling upholding the exception which the respondents’ lawyer, Nixon Marcus, raised in response to Teek’s claim means that Teek’s legal action has been quashed as far as the High Court is concerned, Judge Ndou stated.
Teek claimed a total of N$6,873 million from Government, the president, the minister of justice, and the attorney general. He claimed that was the financial extent of the losses he 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.
As a result of his early retirement and the Supreme Court’s later judgement, he lost income amounting to about N$3,7 million, suffered damages to his reputation in an amount of N$2 million, experienced pain, shock and suffering for which he should be compensated in an amount of N$1 million, and had to spend about N$170 000 on legal costs, Teek claimed.
He based his claim on an argument that Appeal Judges Piet Streicher, Kenneth Mthiyane, and Fritz Brand, who heard the State’s appeal against his first acquittal on eight charges in the High Court, had trampled on his constitutional rights by making unwarranted and defamatory remarks in their appeal judgement. He claimed these remarks were damaging to his reputation and infringed on his right to a fair trial.
The three judges set aside Teek’s discharge on six of the eight counts he was facing, and his trial then had to continue in the High Court. He was eventually found not guilty, again, on those charges in December 2010.
During the hearing of arguments before Judge Ndou on Wednesday last week, Teek told the judge that he did not have qualms with the order which the three Supreme Court judges made. His problem was with remarks they had made in their judgement, he indicated.
In the claim he filed with the High Court Teek charged that the judges’ conduct was “incompetent, imprudent and corrupt, actuated by malicious bias, partiality towards and collusion with the State”, and aimed at securing his conviction.
Judge Ndou said while he agreed with Teek that he was not trying to review or appeal the Supreme Court’s decision in the usual sense, the effect of his claim against the four defendants would result in the High Court having to examine a judgement of the Supreme Court to decide on his claim. Such a process would defeat the provisions of the Constitution and the Supreme Court Act which state that a judgement of the Supreme Court cannot be appealed or taken on review, the judge reasoned.