Nigel van Wyk, recently released on bail, is seeking the recusal of Judge Moses Chinhengo from the Fishrot trial.
His lawyer, Mbanga Siyomunji filed the notice of motion with the office of the High Court’s registrar on Tuesday and moved the application yesterday.
After a very lengthy discussion on the procedures to be followed in a recusal application, that all parties involved in the trial participated in, the judge finally conceded to having the matter postponed for the hearing of the recusal application.
While the lawyers involved in the matter all argued that the application was interlocutory – which means the main trial is suspended until the finalisation of the application – Chinhengo was adamant that no law on Namibia’s statute says a trial must be suspended to finalise an interlocutory application.
Siyomunji argued vehemently that it is part of the court processes that proceedings must be stopped pending the outcome of the interlocutory application, but Chinhengo did not budge.
The judge was still hesitant, even when lawyer Milton Engelbrecht joined the fray and informed the judge that the practice was part of the Namibian jurisprudence.
It was only when State advocate Ed Marondedze assured him that it is the practice in Namibia, that a trial will be put on hold while an interlocutory application is pending, did he accede.
Van Wyk brought the application on the presumption that Chinhengo is biased and fears he will not receive a fair trial.
He based his presumptions on the judge pressing the unrepresented accused to plead despite their remonstrations.
According to Van Wyk, despite the unrepresented accused pleading with the judge to give them more time to secure funding for their legal representatives, the judge was adamant that they should take the pleas despite being unrepresented. Further, he said, even though Sakeus Shanghala – accused three – gave notice that he intended to bring a section 319 application for review, the judge was non-cooperative and refused to entertain the motion.
This, he said, was even though the section 319 application directly affects the pleas the judge was hell-bent on taking. Van Wyk further said the judge, despite him having a pending review application against certain charges he faces, forced him to plead on those very charges, and when he said he was unable to plead, entered a plea of not guilty on his behalf.
He said the judge violated his and his co-accused’s rights under Article 12 of the Constitution by choosing to proceed with the trial in the absence of legal representation and entering pleas they did not give.
Further, he said, the judge engaged in unprocedural conduct and what emerges from this is that the judge has no regard for the rights of the accused to a fair trial and the principles that govern how judicial officers must not only respect those rights but actively protect them.
This, Van Wyk said, shows bias and possible prejudice.
Judge Chinhengo then postponed the matter to 1 March 2024 for the hearing of the recusal application.
He ordered that the respondents who wish to oppose the application file their papers by 2 February 2024 and their answering affidavits if any by 9 February 2024.
Should the applicant wish to reply, he must do so by 15 February 2024 and the heads of argument must be filed by 22 February 2024 for the applicant and 27 February 2024 for the respondent, the judge ordered.
– rrouth@nepc.com.na