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High Court dismisses application to set aside 2020 //Kharas regional elections

The High Court has dismissed an application by chief magistrate Philanda Christiaan asking the court to set aside the elections of the management committee and National Council members of the //Kharas Regional Council held on 2 December 2020, and have the processes start afresh.

In a ruling handed down by judge Esi Schemming-Chase on Monday, the judge ruled that neither the Magistrates Commission nor the chief magistrate has authority, in terms of the Magistrates Act 3 of 2003, to review a decision of a magistrate appointed to preside over regional council elections by the minister of justice.

Magistrate Unchen Konjore, whose decision was sought to be set aside, refused to participate in the self-review proceedings.

“Further, it was contended that the chief magistrate could not bring a self-review application in the absence of the participation of the decision-maker. Held that, the Magistrates Act does not empower, neither authorise the Magistrates Commission or the chief magistrate to review and set aside a decision of one of its magistrates in the manner undertaken.

“In fact, section 4(4) of the Magistrates’ Act specifically prohibits interference with the judicial independence or the judicial functioning of a magistrate,” said Schimming-Chase.

The chief magistrate, on behalf of the applicants the Electoral Commission of Namibia’s Augustinus Ucham and the minister of urban and rural development Erastus Uutoni, instituted self-review proceedings, to review and set aside alleged irregularities stemming from the 2020 //Kharas Regional Council election, presided over by Konjore, in terms of section 19 of the Regional Councils Act 22 of 1992.

In her affidavit presented to the court in June 2020, Christiaan said she discovered on 9 April there had been irregularities with the election of the region’s leadership. She said in terms of the Regional Councils Act, the council’s management committee members had to be elected before the council could proceed with any other business. With no management committee chosen at the meeting on 2 December, the subsequent election of the region’s National Council (NC) members amounted to a nullity, she said.

She also informed the court that the regional council during a meeting on 9 April, which was not attended by the three Swapo councillors, elected Gerrit Witbooi and Anseline Beukes as members of the management committee as well.

“This was also an irregularity, Christiaan said, because the Regional Councils Act prohibits a management committee member from also serving in the NC,” reads the affidavit.

At the time Landless Peoples’ Movement (LPM) leader Bernadus Swartbooi lamented the application, saying the judiciary has been captured if a magistrate cannot rely on her expertise to interpret the law while exercising her duties and must be forced to change her decision or be threatened to resign in an attempt to weaken the region LPM won from Swapo.

“This country has turned into an irreversible and dangerous capture and control of the judiciary, reminiscent of Zimbabwe that degenerated into a despotic and autocratic regime.

“It has become evident that the principle of separation of powers no longer applies in reality and has rather become an empty rhetorical mantra,” said Swartbooi.

The respondents, comprising the chief regional officer of the //Kharas Regional Council, all seven councillors, LPM, Swapo, the Electoral Commission of Namibia and the National Council, were of the view that a self-review application cannot be brought in the absence of the person who took the decision that is sought to be set-aside.

This would not be a self-review in the circumstances, said Patrick Kauuta for the respondents.

“Therefore the courts dismissed the application with costs and removed the case from the court toll,” said the court order.