A former nurse who took a “witchdoctor” to court after he allegedly swindled her out of her house, wants the judge in the case to recuse himself for bias.
Elizabeth Neis (63) is accusing Windhoek High Court acting judge Collins Parker of siding with the defendants in her suit, Kenneth Kasuma and Josephina Amutse.
Parker had already dismissed her claim in July 2020, and after she successfully appealed to the Supreme Court, the matter was referred back to Judge Parker. Neis now claims that she would not get a fair trial if Parker continues to preside over the
matter.
She lodged an application for Parker to recuse himself from the matter, but Kasuma is opposing the recusal application.
Neis initially filed a lawsuit against Kasuma and Amutse, wherein she claimed that they used undue influence to force her to sell her house to Kasuma for N$200 000. She claimed that Kasuma whom she consulted as a traditional healer, told her that her house was full of evil spirits and that she could not continue to live there with her family.
She said Kasuma convinced her to sell her house to him as he was the only one who could live in it and that he would buy her another house of the same value in addition to the N$200 000 he gave her. This, however, never happened, she stated.
She then filed a lawsuit against Kasuma, which Judge Parker dismissed.
She claims that Parker was biased against her in the initial lawsuit. According to Neis, the judge treated her expert witnesses unfairly by questioning them in a manner that shows he had lost judicial impartiality and objectivity. Furthermore, she said, the judge lost judicial impartiality in that he made attacking propositions towards her and at times would put forward his position to the experts, seeking concessions to his stance.
She further states that the comments made by the judge during his questioning of the expert witnesses showed that he had already predetermined the matter before hearing their expert testimony and as such did not bring an open mind to determining the matter.
“It is also submitted that the trial judge’s questioning of the expert witnesses amounted to cross-examination of the witnesses; the trial judge essentially entered the arena and resulted in him not being able to bring an open mind to bear in determining the matter.”
In opposing the matter, Kasuma claims that Neis is abusing the processes of the court as she is a Legal Aid beneficiary who is insulated from paying any legal fees and against an adverse cost order. He said he, on the other hand, does not enjoy such protection and he must use his own resources, which have cost him more than N$100 000 already. He further said Neis knows she has no prospects of success and knows she wants to throw sand into the finalisation of the matter. He denies all the allegations made against him and describes them as false beyond reason.
He further denies any partiality by the judge towards him.
In fact, he claims, judicial bias must be supported by cogent evidence or be founded on clear and well-organised principles accepted in a civilised society governed by the rule of law. Further, he said, if judicial bias or partiality is to be readily inferred, it opens the door to all manner of flimsy and bogus objections being raised to try and influence the judicial process by shopping around for the so-called correct judge.
Neis is represented by Rachel Mondo and Kasuma by Kadhila Amoomo. The ruling on the recusal application will be on 21 November.