Attorney General Festus Mbandeka is challenging the legality of a subpoena to hand over communication between him and Cabinet in relation to the declaration of the State of Emergency in response to Covid-19 last year. 

The High Court on 7 June granted leave to Hollard Insurance to subpoena Mbandeka and Secretary to Cabinet George Simataa to hand over correspondence, ranging from letters, emails, text and other electronic messages exchanged between them and Cabinet, the national Covid-19 task force and former health minister Bernard Haufiku. 

The subpoenas also request minutes of Cabinet meetings, where Covid-19 regulations were discussed and issued by President Hage Geingob. 

The subpoenas were issued in the civil suit in which Gondwana Collection Namibia is accusing Hollard of dragging its feet regarding the payment of up to N$638 million in a business-interruption claim.

During oral arguments yesterday before judge Thomas Masuku Eliaser Nekwaya, lawyer to Mbandeka, argued that the subpoenas violate attorney-client confidentiality, given that he is the principal advisor to government and the President.

“It is submitted that such legal opinions are privileged and neither the President, members of government nor cabinet waived the privilege. The subpoena, including the documents protected by law, is an abuse of court processes. It is invalid and stands to be set aside for that reason alone,” said Nekwaya. 

He said the court should be wary of permitting litigants to use subpoenas to request for large amounts of information in the hope they might find something that would be useful. 

He further argued the subpoenas are not specific; they are vague and ambiguous. 

Simataa’s lawyer Jabulani Ncube said Hollard is on a fishing expedition, hoping to find something useful that would advance their position in a civil suit. 

Advancing his argument, Ncube said, in terms of clause 10.3 of the Cabinet Handbook, proceedings of Cabinet meetings are strictly confidential, and ministers are not allowed to discuss outside cabinet meetings. 

“It, thus, follows that a subpoena, which seek to compel the second applicant (Simataa) to disclose Cabinet minutes and communications,is not only unlawful but violates the common law principle on Cabinet secrecy,” Ncube.  

Hollard’s lawyer Raymond Heathcote said they are not persistent with the subpoenas but whether they should be set aside. 

He said Hollard requires the relevant documents from Cabinet to prove their case in relation to the claim by Gondwana, as they are entitled to a fair trial. 

He said the notion that Hollard was not specific is untruthful, stating they have given description of the documents they require and from which time frame.

Heathcote requested for the court to dismiss the application with cost.

Despite being cited as the first respondent to the matter, Gondwana indicated in their affidavit the subpoenas by Hollard are unnecessary to the relief that Gondwana seeks in the main application. 

“None of these documents could conceivably be relevant to the case which Hollard intends to make, as they are not relevant to the issues which arise in the main application,” reads the affidavit.

Judge Masuku is set to give a ruling in the matter on 9 November.

- mamakali@nepc.com.na