Zorena Jantze
THE Fishrot accused trial-awaiting inmates today suffered a blow after High Court Judge Boas Usiku struck their urgent application from the roll due to a lack of urgency.
In the application, the accused challenged their relocation from the C-Section of the Windhoek Correctional Facility (WCF) to the Echo Unit, where all trial-awaiting inmates are kept. James Hatuikulipi, Mike Nghipunya, Otneel Shuudifonya, Pius Mwatelulo, and Ricardo Gustavo were relocated from the C-Section to the Echo Unit on 1 May 2024.
In his judgment, Judge Usiku said that the court held that the complaints raised by the applicants about the decision to relocate them are concerns of every trial-awaiting inmate who has been relocated from a single cell to a communal cell, and the same does not per se render the matter urgent. Further to this, Usiku said that the application to have the matter heard as one of urgency is refused, and the matter is struck from the roll for lack of urgency.
On 6 May 2024, the applicants filed the present urgent application seeking relief. The applicants aver that, once the decision to relocate them is carried out, the damage would be done, and the implementation of the decision will reverberate into the defenses they are trying to assemble under difficult circumstances in their criminal case.
In opposition, the respondents, which include the Minister of Safety and Security as well as top-ranking officers of the Namibia Correctional Services (NCS), through their legal counsel, argued that the matter is not urgent and, in the alternative, the urgency is self-created, in that the applicants did not bring the application immediately upon becoming aware of the trigger event; and that the relief sought by the applicants, interdicting the NCS from relocating them, had become moot and academic because they have already been relocated.
The respondents further explained that the applicants were placed in single cells after a request by the investigating authorities to isolate them for the duration of the investigation and that the intention of the NCS was not for them to be kept there indefinitely.
“In the founding affidavit deposed to on behalf of the applicants, it is said that the decision to relocate the applicants was only conveyed to them late on Friday, 18 April 2024, that they will be relocated on 23 or 24 April 2024. I take it that, in summary, those are the circumstances that the applicants aver render the matter urgent. However, that is not the end of the matter. The applicants are also required to state the reasons why they allege that they cannot be afforded substantial redress at a hearing in due course. The issue regarding the absence of substantial redress is of cardinal importance in an urgent application. Absence of such redress is met when an applicant shows that, if the matter were to follow its normal course as laid down by the rules, the applicant will not be afforded substantial redress. Whether an applicant will or will not be able to obtain substantial redress in an application in due course will be determined on the facts of each case,” Usiku said in his judgment.
Touching on arguments brought forth that the prison cell move would negatively affect the applicants’ preparations for their criminal trial, Usiku said that the applicants do not explain the nature of the damage that will be caused to them as a result of the relocation.
“In my view, the averments that the decision to relocate will cause damage or that relocation will hamper the trial preparation effort of the applicants do not, on their own, render a matter urgent. There may be circumstances where the same, coupled with other considerations, would render a matter urgent. However, such circumstances have not been shown to apply to the present matter. In conclusion, on the facts of the present matter, I am not persuaded that the applicants have satisfied the requirement of showing the absence of substantial redress at a hearing in due course. In the present matter, the complaints raised by the applicants about the decision to relocate them are concerns of every trial-awaiting inmate who has been relocated from a single cell to a communal cell, including those who challenge the relocation on the ground that the same is illegal,” Usiku said.
