Namibia’s Minister of Finance, Calle Schlettwein, formally requested the registrar of the Supreme Court for an urgent hearing to set aside Supreme Court Justice Theo Frank’s recent decision to refuse a petition in which the finance minister and NamibRe were asking to be allowed to appeal against a judgement handed down by judge Thomas Masuku in the Windhoek High Court during September last year.
Minister Schlettwein intends to ask the Supreme Court to have a decision that was made by Justice Frank to be set aside and declared as a nullity on the ground that a conflict of interests exist.
The official statement by Minister Schlettwein in this regard reads as follows:
On 7 February 2019 the Registrar of the Supreme Court was notified (both by way of covering letter and a formal application) of my request that a ruling made on its behalf on 29 January 2019 by a judge in Chambers be set aside as a nullity. That letter and the application are hereto attached.
In short, the application is made on the basis that the order made on 29 January (it is not accompanied by reasons) be set aside because the judge concerned (an acting member of the Supreme Court) is disqualified (I have been advised) from any involvement in the matter by a regrettable set of direct and indirect conflicts of interests. These conflicts were not disclosed to the parties. Had they been disclosed, I would have been constrained to object to the judge in question dealing with the matter. The letter and application record why.
I have been advised that the legal consequence of a judge disqualified by any such conflict of interests from dealing with a particular matter is that any ruling he or she makes in the matter is void.
I have asked the Supreme Court to convene on an urgent basis, in open court and as a full court of at least three judges. This to hear argument in the application now lodged to declare the ruling a nullity; and thereupon to grant the application for leave to appeal lodged two months ago to which the ruling in question relates.
From time to time my office and NamibRe, Namibia’s statutory reinsurer, receive media and other enquiries about the pending litigation in point. That litigation is between the Ministry of Finance and NamibRe on the one hand and the respondents on the other with an Act of Parliament (the Reinsurance Act) which has been in place since shortly after Independence. That Act was also declared constitutional in 2000 by the Full Bench of the High Court when challenged by certain of the respondents and the Namibia Insurance Association.
The respondents are a number of competitors in the Namibian insurance industry which have made common cause in defending an order made by Justice Masuku in the High Court late last year which purports with immediate effect to suspend indefinitely the Act of Parliament (as well as measures made under it).
Six other insurance companies in contrast have agreed to honour the Act and the measures while the courts have an opportunity to deal with the renewed challenge to the Act (and the Full Bench judgment which has upheld it). I commend their responsible stance.
In view of such inquiries, and because the issue now raised is a serious one concerning the administration of justice, I thought it important to release my letter and the application which has been served. As a courtesy to the court, I have held back from doing so until being advised (as I now have been) that the application to the
Supreme Court had been lodged with it, as well as served on the respondents.
While the matter is before court, out of respect for the court I do not intend to comment on its merits.