Staff Reporter
HIGH Court acting judge, George Coleman, today granted relief sought in an ex parte application by Sacky Shanghala and his co-accused to cite Acting Justice Moses Hungwe Chinhengo in an application to set aside the appointment of Chinhengo as a High Court judge.
The application was made in terms of section 21 (1) of the High Court Act, 1990 (Act No. 16 of 1990), which prescribes that no process shall be issued against a judge of the High Court except with the consent of the High Court.
Shanghala, who is the former Minister of Justice, alongside two of his co-accused, namely businessman James Nepende Hatuikulipi and Pius Mwatelulo, are embroiled in the country’s largest fisheries corruption, fraud, and money laundering case, dubbed Fishrot, in which they are accused of receiving bribes of up to N$300 million to give a competitive advantage to Icelandic fishing company, Samherji hf, in Namibia’s fishing sector.
In the application, the three accused men have, however, taken issue with acting judge Chinhengo’s appointment, stating that his term as a judge has lapsed and, as such, he should not be presiding over the Fishrot matter.
Shanghala, in his application, also explained that he seeks to sue High Court Justice Deputy-Chief/Judge President Justice Petrus Damaseb, in connection with Chinhengo’s alleged unconstitutional appointment. To this, High Court judge Coleman said that he does not need permission or consent from the High Court to do so.
“The issue at the heart of this application, seeking permission to cite Acting Judge Moses Hungwe Chinhengo and Mr Justice Petrus Tileinge Damaseb, the Deputy-Chief Justice/Judge-President, is the appointment made by the late Dr Hage G. Geingob on 27 April 2023 to appoint the Acting Judge as a Judge of the High Court. That appointment was published in Government Gazette Number 8085 on 11 May 2023 for the period 18 September 2023 to 31 December 2023. Early this year, on 15 January 2024, Proclamations 1–4, dated 29 December 2023, were published in Government Gazette Number 8290, detailing what turned out to be the last judicial appointments of the late President. No further provision for Acting Justice Moses Hungwe Chinhengo was made. Accordingly, his term of office ended on 31 December 2023,” Shanghala said in the application.
He added that issues arising from the appointment include that Article 82 (4) of the Namibian Constitution precludes the President from appointing a person older than the age of 65 as a judge unless that person’s retiring age was extended by the President beyond the age of 65 to 70, and secondly, that the retiring age can only be extended before the attainment of that age, not afterwards (one cannot be extended after the age of 65 but before that age is reached).
He also argued that Article 82 (4) of the Namibian Constitution places another limitation upon the appointment of non-Namibian citizens, such as Acting Judge Moses Hungwe Chinhengo, in that they can only be appointed for fixed-term contracts of employment; and that this fixed-term contract of employment for Acting Judge Moses Hungwe Chinhengo lapsed on 31 December 2023.
