Aupindi v Magistrate Shilemba (APPEAL 353 of 2013) [2016] NAHCMD 21 (12 February 2016)

Aupindi v Magistrate Shilemba (APPEAL 353 of 2013) [2016] NAHCMD 21 (12 February 2016)

The applicants failed to provide sufficient evidence of bias or gross irregularity justifying intervention by the High Court in pending criminal proceedings. The allegations were unsubstantiated and the normal remedies of appeal or review after trial remain available. No grave injustice or failure of justice was demonstrated.

Citation
[2016] NAHCMD 21
Parties
Applicant: Tobia Aupindi; Applicant: Antonio Di Savino; Respondent: Magistrate Helvi Shilemba; Respondent: Arie Husselman; Respondent: Minister of Justice; Respondent: Chairperson of the Magistrate’s Commission; Respondent: Prosecutor-General of Namibia; Respondent: Anti Corruption Commission of Namibia; Respondent: Director of the Anti-Corruption Commission of Namibia; Respondent: Inspector General of the Namibian Police; Respondent: Attorney-General of Namibia
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
12 February 2016
Case Number
APPEAL 353 of 2013
Procedural Posture
Review Application (criminal) / Judgment on Review of Pending Criminal Proceedings
Outcome
Review application dismissed with costs; matter referred back for continuation of criminal trial.
Legal Topics
Recusal of Magistrate, Reasonable Apprehension of Bias, Review of Pending Proceedings, Stay of Prosecution
Source Language
English
Criminal Law Constitutional Law Judicial Review Recusal of Magistrate Reasonable Apprehension of Bias Review of Pending Proceedings Stay of Prosecution

Case Brief

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Parties

Tobia Aupindi

Applicant

Antonio Di Savino

Applicant

Magistrate Helvi Shilemba

Respondent

Arie Husselman

Respondent

Minister of Justice

Respondent

Chairperson of the Magistrate’s Commission

Respondent

Prosecutor-General of Namibia

Respondent

Anti Corruption Commission of Namibia

Respondent

Director of the Anti-Corruption Commission of Namibia

Respondent

Inspector General of the Namibian Police

Respondent

Attorney-General of Namibia

Respondent

Procedural Posture

Review Application (criminal) / Judgment on Review of Pending Criminal Proceedings

Legal Issues

  1. 1 Whether the High Court should review and set aside the magistrate's refusal to recuse herself
  2. 2 Whether there is a reasonable apprehension of bias by the presiding magistrate
  3. 3 Whether the criminal proceedings should be stayed or set aside

Ratio Decidendi

The applicants failed to provide sufficient evidence of bias or gross irregularity justifying intervention by the High Court in pending criminal proceedings. The allegations were unsubstantiated and the normal remedies of appeal or review after trial remain available. No grave injustice or failure of justice was demonstrated.

Court Disposition

Review application dismissed with costs; matter referred back for continuation of criminal trial.

Orders

  • The review application is dismissed with costs.
  • The matter is referred back to the Magistrate’s court to proceed with the criminal trial against the applicants.