State Advocate Ed Marondedze yesterday applied to acting Windhoek High Court judge Moses Chinhengo to stay the main trial and any further applications by former attorney general and justice minister Edward Sakeus Shanghala until the finalisation of his constitutionality challenge on the judge’s appointment.

Shanghala petitioned the Supreme Court after Chinhengo dismissed his application to cite both Chinhengo and judge president Petrus Damaseb. 

The application he plans to bring to the Supreme Court is to set aside the decision by the judge president to appoint Chinhengo as a judge of the High Court of Namibia, as
unconstitutional.  Marondedze informed Judge Chinhengo that Shanghala’s petition had been accepted by the Supreme Court, who will now decide on the matter. 

This court will need at least three months to decide on the matter, and he thus applied for any other issues to be put on hold until the Supreme Court expresses itself. He based his arguments on the fact that, in the unfortunate but most unlikely event that the Supreme Court decides in favour of Shanghala, the trial will have to start afresh before a new judge, who will have to decide on the applications already decided upon by Chinhengo.  

Shanghala brought the application to cite Chinhengo and the judge president, as it is not competent to issue any process against a judge without first obtaining permission to do so from the court. He based his claims on the unconstitutionality of Chinhengo’s appointment on the fact that Chinhengo was appointed by late President Hage Geingob as an acting judge for the period 18 September to 31 December 2023. 

However, Shanghala stated that Chinhengo’s tenure lapsed as a result of the ‘efflux’ of time, but the judge continues to preside over the Fishrot matter on the strength of that appointment, without his tenure being prolonged by lawful actions.  

Shanghala further asserted that Chinhengo’s appointment is unconstitutional, as he had already turned 67 years old at the time of his appointment. 

Shanghala is joined in the application by his long-time friends and business associates James Hatuikulipi and Pius Mwatelulo. He, however, is not impugning the conduct of either Chinhengo or Damaseb, even if the application is served on them, but the decision of the President to appoint Chinhengo. 

The Namibian Constitution stipulates that a sitting judge may not be over the age of 70. He further argued that a judge who has already reached the age of 65 must retire, unless the age of retirement is extended by the President, but only to 70. He submitted that this power does not extend to any judge, but to judges appointed in line with Constitutional requirements. 

In line with this provision, Shanghala argued, the appointment of Chinhengo is unconstitutional, and should be set aside.

Judge Chinhengo reserved his ruling on the application by Marondedze to Monday 18 November at 10h00. Shanghala represented himself and his co-applicants. 

-rrouth@nepc.com.na