A man who was found in contempt of court and sentenced to a fine of N$500 or 30 days imprisonment, had it set aside by two judges of the Windhoek High Court, eight months after the fact. Festus Shimmy was found in contempt in Keetmanshoop Magistrate’s Court in June 2023 for wearing a yellow jersey and shorts to court in a case of housebreaking. When asked by the magistrate why he was wearing shorts, he explained that the pants he intended to wear were dirty, and he did not have other pants to wear. The magistrate, however, did not accept his explanation, and sentenced him to a 30-day jail term if he failed to pay a N$500 fine.
Judge Herman January, who wrote the judgement in agreement with Judge Naomi Shivute, said the whole case was shrouded in controversy. He observed that the record of proceedings does not reflect in terms of what law the accused was convicted and sentenced. According to cover letters by the presiding and divisional magistrates, it was in terms of the Magistrate’s Court Act, which provides for a fine not exceeding N$100, or three months imprisonment. This, the judges said, was ultra vires (beyond the powers of) the Act, and the magistrate was wrong. Furthermore, the judges stated that this was not the only concern. Firstly, they said, it is alarming that the record reflects that the accused was 99 years old, while he in fact was 26 years old. In addition, the proceedings were not in accordance with justice. According to them, the enquiry in relation to contempt was inappropriately brief, and the questioning did not cover the element of intent and unlawfulness. No question was directed whether the accused was intentional in his manner of dress, and whether he knew that it was unlawful to appear in court as he did. In fact, the judges said, the accused gave a reasonable explanation that his other clothing that he considered appropriate to wear to court was dirty. In addition, there was no evidence or admission that the accused was previously warned about what constitutes proper dressing to court.
In the end, the judges set aside the conviction and sentence, and ordered that the fine, if paid, should be refunded to the depositor.