REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case no: CA 02/2014

In the matter between:

MUGIMU LIVINGSTONE APPLICANT and

GORRETH ASIIMWE RESPONDENT

Neutral citation: Livingstone v Asiimwe (CA 02-2014) [2015] NAHCNLD 20 (05 May 2015)

Coram: CHEDA J

Heard: 30 March 2015

Delivered: 05 May 2015

Flynote: A Judicial Officer must show the ability to listen to facts and/or issues presented to him by litigants and make an order which can be reasonably viewed as being without bias. A mixture of complaint of assault cannot be dumped together with a claim for maintenance. Each matter should be dealt with separately as it is governed by different rules.

Summary: Appellant filed a complaint of assault by his wife under the Combating of Domestic Violence Act 04/2003. During the proceedings the respondent (wife) brought up the issue of maintenance which the court granted her without proper 2 investigations being carried out. This was improper. The proceedings is set aside. The matter is referred back for a trial de novo before a different magistrate.

ORDER

1. the proceedings in Case No. DVC 94/2013 and Maintenance No. 84/2014 be and are hereby set aside; 2. the matter is referred back for a trial de nevo before a different magistrate; and 3. respondent should pay the costs of this appeal.

JUDGMENT

CHEDA J:

[1] On the 03 July 2014 appellant, then complaint in the court a quo filed a notice to appeal a ruling by the Magistrate Court sitting at Oshakati on the 23 June 2014. The historical background of the matter is that the parties who are Ugandan nationals were married in terms of that country’s customary laws in Uganda in 1994.

[2] The Appellant is a Medical Doctor and is practising as such in Oshakati. Respondent is said to be employed, but, claims to be unemployed, a point which remains unclear as it was not investigated by the learned trial magistrate.

[3] The appellant brought proceedings against respondent under the Combating of Domestic Violence Act, 04/2003. He alleged that respondent was violent and had issued death threats against him. Appellant lodged a complaint at the Magistrate Court on the 25 October 2013 under Case No. DVC 94/2013. Both parties were represented at the hearing.

[4] He gave evidence and catalogued the events that led to the present proceedings before this court. According to the facts before the court, respondent is indeed a violent woman, and the court was correct in granting applicant a protection order. However, the learned magistrate went further and made an order of maintenance against appellant. It is this order which appellant is aggrieved about. 3

[5] Appellant through his Legal Practitioner, Mr. Sisa Namandje, argued that the court misdirected itself by combining matters raised in terms of Maintenance Act which ought to have been addressed by the maintenance court together with matters raised in terms of Domestic Violence Act which is itself a different forum altogether.

[6] It is for that reason that the said proceedings should be quashed. It is appellant’s further argument that the court considered irrelevant issues and evidence resulting in it coming to a wrong conclusion.

[7] Respondent has, however, argued that, what ultimately falls for determination is whether or not it can be said that appellant had a fair hearing. The court in casu allowed the introduction of and admitted a maintenance claim by respondent without:

a) proof of respondent’s expenses; b) determination of whether she is indeed employed or not; c) allowing appellant to present his own expenses; d) proof of his financial ability to pay maintenance; and e) stating the basis of its arrival at the figure of N$8000.

[8] It is trite that our courts should act fairly in adjudicating matters which are presented before them. This is in accordance with the rules of natural justice, (audi alteram partem) principle. The application of this principle should be a manifestation of fairness on the part of any judicial officer. It should not only, be seen to have been applied, but, should infact be applied and in addition, thereto, be palpable in the circumstances. The need for a fair hearing has been referred to in many cases both in South Africa and Namibia. In Yates v University of Bophuthatswana 1994 (3) SA 815 (B) the court stressed the importance of a fair hearing in every respect and detail. Friedman J at 835 C-D stated:

“the celebrated principles of natural justice provide that persons who are likely to be affected by administrative action should be entitled and afforded a fair and impartial hearing before a decision to act is taken.”

[9] To emphasise this point the learned Judge went further and commented at 836 B-C: 4

“ Justice presupposes that a party be afforded a fair and proper opportunity to present his case. The basic test of fairness also involves the absence of bias. Both parties must be given an equal opportunity to present their cases, and consequently administrative action must not be vitiated, tainted or actuated by bias.”

[10] The manner in which this hearing was held, in my view, brings into sharp focus the element of bias on the part of the learned trial magistrate. The issue of maintenance was not properly before the court and appellant was not given an opportunity to test respondent on it, but, was, however, ordered to pay maintenance. The question to be asked is whether right minded people may think that the magistrate was biased. It is clear that the appropriate test is that of a reasonable man. The question then is, can it be concluded that the learned trial magistrate was fair in the circumstances. In my opinion this cannot be so.

[11] It is my considered view, that appellant was not accorded a fair hearing in determining the issue of maintenance as the learned magistrate seems to have prejudged the issue. This matter is pregnant with a lot of issues which the court should have not ignored, but, should have tackled with great vigour, namely:

a) issue of marriage of the parties; b) appellant’s legal obligation to financially support Kevin who was fathered by another man; c) the issue of violence by both parties; d) respondent’s employment status; e) credibility of the parties; f) appellant’s financial capability, taking into account his income and expenditure; g) respondent’s income and expenditure and h) respondent’s ability to work.

[12] The list of issues is inexhaustive. As pointed out above I find that there has been a serious miscarriage of justice in this matter and accordingly this judgment and/or order cannot be allowed to stand.

[13] In the result the following order is made: 5

1. The proceedings in Case No. DVC 94/2013 and Maintenance No. 84/2014 be and are hereby set aside; 2. The matter is referred back for a trial de nevo before a different magistrate; and 3. Respondent should pay the costs of this appeal.

------M Cheda Judge 6 APPEARANCES

APPLICANT: S. Namandje Of Sisa Namandje & Co. Inc., Windhoek

RESPONDENT: M. Amupolo Of Directorate of Legal-Aid, Oshakati