Namibia: High Court Main Division

REPUBLIC OF NAMIBIA                                              

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

            Case no: I 492/2012

  I 3274/2011

Reportable

In the matter between:

AUGUST MALETZKY                                                                                                           PLAINTIFF

And

CLEOPAS ZAARUKA                                                                                                        DEFENDANT

Consolidated with:

AUGUST MALETZKY                                                                                                           PLAINTIFF

and

MARIEKIE DE KLERK T/A HOPE VILLAGE                                                                 DEFENDANT

Neutral citation: Maletzky v Zaaluka; Maletzkey v Hope Village (I 492/2012; I 3274/2011) [2013] NAHCMD 343 (19 November 2013)

Coram:          DAMASEB, JP

Heard:           18 January 2013; 13 February 2013; 26 February 2013; 26 March 2013.

Delivered:     19 November 2013

Flynote: Application and motion – Application for recusal – Common law principles restated – Grounds based on potential bias and enmity from the presiding judge – Application for recusal dismissed. Legal Practitioners Act – s 21 – Prohibition of any person who is not enrolled as a legal practitioner to practice or in any manner hold himself or herself out as or pretend to be a legal practitioner – Could be criminally liable if convicted – Matter referred for investigation by the Namibian Police – Duty of Police in terms of Article 78(3) of the Namibian Constitution – Duty to accord such assistance as the Courts may require to protect their…dignity and effectiveness’ – Report to assist the court to make an informed judgment – Litigants to refrain from instituting direct dialogue with the court on matter that are already dealt with in the judgment.

Summary: Mr. August Maletzky brought an application for the recusal of the judge, Hon. Damaseb, based on a suspicion of bias against the applicant, who is part of the lay persons. The application was based on the fact that a public statement was made at the legal year opening to warn the public of self-actors targeting the High Court bench and eroding public confidence in the courts. Secondly, the application was based on the fact that the presiding judge also exercised administrative functions of allocating High court judges to various cases and that it was a deliberate act from his part to appoint himself and other specified judges to all cases related to the applicant. The application was dismissed on grounds that such basis is bad in law and hinders the smooth operation of the court system.

On the merits, the applicant concluded cession agreements entitling him to act as the plaintiff in person for claims against defendants. It has been placed on record that the agreements were made under the impression that the applicant is the legal practitioner of the cessionaries and that he is their agent. Such contracts gave the applicant the right of appearance as the plaintiff in person. The determination of whether such agreements were a ruse to allow the applicant to practice as a legal practitioner and as such against s 21 of the Legal Practitioners Act, 1995 was left for investigation by the Namibian Police. In the fulfillment of its constitutional obligation in terms of Article 78(3) to accord such assistance as the courts may require to protect their dignity and effectiveness, the matter is referred to NAMPOL for further investigation. The investigation is aimed at, firstly, establishing whether a crime has been committed and secondly, to gather and provide sufficient information which will enable the court to make an informed decision. The court speaks through judgment and as such, litigants are cautioned against initiating dialogue with the court of issues that are otherwise dealt with in the judgment.

ORDER

1.    The proceedings in cases I 492/2012 and I 3274/2011 are stayed pending finalization of the investigation by the Namibia Police as contemplated in the body of the judgment. This matter may not be placed on the roll of this court without the leave of a judge of the High Court.

2.    The registrar of the court is directed to make two duplicate copies of the contents of the file, including this judgment, and forward same to the Inspector General of the Namibia Police and furnish a copy to the Office of the Prosecutor General.

3.    The Inspector General must submit to the registrar of the High Court a report on the investigation within 60 days of this order.

4.    Once the report of the Inspector General is received, the registrar must, within five days of it being received, by notice to Mr Maletsky, the Law Society of Namibia and legal practitioners Ellis Shilengudwa, place the matter on the roll of the court for the matter to be dealt with according to law.

JUDGMENT

Damaseb, JP:

Introduction

[1]        On 18 January 2013, I made an order in case I 492/2012 in the following terms:

‘1. The matter is postponed to 13 February 2013 at 10H00 for argument, to enable Mr. Maletzky to present argument to me on why I should not make an order that the claim under Case No. I 492/ 2012 should not be dismissed and for referral of the matter to the Inspector general of Police and the Prosecutor General.

2. The Law Society must present argument amicus curiae at the hearing of the matter.

3. Heads of argument are to be filed in accordance with the Consolidated practice directions.’

[2]        Similarly, Smuts, J delivered an order in case I 3274/2011 on 25 January 2013 in the following terms:

‘

1.            The matter is postponed to 13 February 2013 at 10h00 for evidence and argument on the issues raised in this ruling and why this court should not dismiss the claims under case no. I 3274/2011 and for referral of the matter to the Inspector General of Police and Prosecutor General for a contravention of s 21 of Act 15 of 1995.

2.            Winnie Van der Bergh of Treasure Trove CC, Hilton Armstrong of Wicked Entertainment CC and Deryck Sinclair of Flashpoint Technologies CC are directed to be present in court on 13 February 2013 at 10h00 and to bring with them documentation relating to the purported cession of their respective claims to the plaintiff dated 12 May 2011.

3.            Service of this order upon the persons referred to in paragraph 2 of this order is to be by Deputy-Sheriff.

4.            The plaintiff is ordered to bring the separate agreement referred to in clause 6.1 of the cession agreement to court on 13 February 2013 at 10h00.

5.            The Law Society must present argument and question witnesses with leave of the court as amicus curiae at the hearing of this matter.

6.            The filling of any heads of argument is to be in accordance with practice directives.’

[3]        Upon the two maters being called on 13 February 2013, Mr. Maletzky, and Ms. Klazen acting for the defendant in case I 3274/2011, consented to their consolidation and I made an order in those terms. On the same day, Mr Maletzky submitted that he on 12 February 2013 filed an ‘impeachment’ notice in respect of my brother Smuts, J  and I which, he said, incorporated a request for our recusal on the grounds of irregularity in the orders granted on 18 January and 25 January 2013 respectively. At that hearing, the court explained to Mr Maletzky that the approach likely to be followed was for the appointment of a referee to compile a dossier on whether or not the cessions entered into contravene s 21 of the Legal practitioners Act and that it had nothing to do with the merits of the two cases. The matter was postponed to 26 February 2013 for counsel acting amicus to present argument, in particular on the jurisdiction and competence to do so. In the light of that, Mr Maletzky submitted that the recusal application became academic.

[4]        On 26 February 2013, counsel acting amicus curiae submitted written heads of argument  that were also served on Mr Maletzky, although a day before the proceedings. In order to be fair and to afford Mr Maletzky an opportunity to consider the submissions, Mr Maletzky asked the court for a two months postponement to consider engaging the services of a legal practitioner. On this occasion Mr Maletzky revived the recusal application and the matter was then postponed to 26 March 2013 for that purpose. I will presently return to the recusal application.

Facts

[5]        In case I 492/2012, the plaintiff instituted action proceedings on 29 February 2012,  describing himself as an adult male of ‘African Labour and Human Rights Centre, Continental Building, 2nd Floor, Suite 206, Independence Avenue’ and suing on the strength of a ‘cession’ purportedly executed in his favour by a Mr. Aktofel Angula on 6 July 2011. The cession agreement is attached to the combined summons and its effect is to transfer to Mr. Maletsky the cedent’s right of action arising from damage caused to his vehicle in a motor vehicle accident. The claim is based on a motor vehicle accident allegedly caused by the defendant and which allegedly caused damage to the car of the cedent. The combined summons was served on the defendant by the deputy sheriff on 8th March 2012 and no Notice of Intention to defend the action was filed; hence an application for default judgment set down in motion court on an unopposed basis. I was doing duty in motion court on that day and the matter came before me in that way.

[6]        In case I 3274/2011, the plaintiff, being Mr Maletsky, claims from the defendant two sums, namely N$43 949, 30 and N$351 800; 50% for ticket sales in respect of a concert featuring the rock band UB40; and interest on both amounts and costs of suit. This action was defendant but according to the court file, the defendant had been barred. The matter came before Smuts J in motion court.  Mr Maletsky did not appear in court although he had set the matter down for default judgment based on the notice of bar. Ms. Klazen, who represents the defendant, stated to court that the application for default judgment as well as the notice of bar had not been served on her firm. The plaintiff, in both his affidavit and particulars of claim, refers to certain contracts between the defendant and three entities[1] from which the plaintiff has purportedly obtained a cession in respect of their rights of action against the defendant arising from those contracts. The plaintiff states in his affidavit that these entities ceded their respective actions to him in which he acts as plaintiff.[2]

[7]        It is common cause in the consolidated matters that the plaintiff instituted the actions in his personal capacity, and that the purported cession agreements were passed in favour of the plaintiff.  On the face of the documents filed of record in both cases, the court entertained doubt on reasonable grounds, whether the cession agreements, on the strength of which Mr. Maletzky purports to act as plaintiff, are genuine transactions and not simulations intended to give him the pretext for rendering legal services to members of the public.

[8]        At common law, both champertous agreements[3] and simulated cession agreements are unlawful. At the core of the prohibition against champerty[4] and simulated cession, is public policy. Therefore, it was held that:

‘if, therefore, it were to appear that there was no intention on the part of [a cedent] and the plaintiff [cessionary] that the plaintiff should acquire the dominium in the claims, but that the alleged cession was intended to merely provide the plaintiff with a cloak under cover of which the plaintiff would institute action against the defendant, the plaintiff could not succeed.’[5]

[9]        It is competent for the court to, mero motu, go behind what appears to be a champertous agreement.[6] A fortiori, the court may mero motu raise the issue of a cession which appears to be a simulated transaction.

[10]      In case I 492/2012, although I had set out the considerations giving rise to the doubts in my written reasons of 18 January 2013 (given ex tempore)[7], it is helpful to repeat and to elaborate on them. In the first place, in the combined summons and the application for default judgment, Mr. Maletzky provided as his address for service, ‘African Labour and Human Rights Centre, Continental Building, Independence Avenue, 2^nd Floor, Suite No. 206, Windhoek.’ It does not state that it is for his ‘care’ at the stated address. That raised the inference that Mr. Maletzky, via that body , assists members of the public who have legal disputes of one form or another, there being no ‘causa’ for such cession. In addition, the combined summons and application for default judgment seek ‘costs of suit’[8]; yet proceeding on the strength of a cession in his personal capacity, he is in law not entitled to legal costs.

[11]      When the matter was called in motion court and I raised these concerns with him, Mr. Maletzky confirmed that it is not an isolated case and that he had on other occasions obtained cessions in similar circumstances – thus demonstrating a pattern of behavior.[9] The fact that the cession agreement made it possible for the cedent to cancel it at any stage (absent a causa for the cession) strengthened my prima farcie view that the cession was a ruse for Mr. Maletzky to render legal services to a member of the public: the cession did not appear to pass dominium in the claim to Mr Maletsky.

[12]      Smuts J reasoned along similar lines in Case I 3274/2011. He stated at para 7 that:

‘I had intended to ask the plaintiff some questions concerning the cession in view of my concern that it may be a simulated transaction and in fraudem legis of s 21 of the Legal Practitioner Act, 15 of 1995 and against public policy. I had wanted to enquire as to the ‘causa’ for the cession and enquire about certain of its terms such as the clauses relating to restriction on the cessionary’s rights and termination respectively. I also wanted to enquire as to the parties to the cession, given the reference to the cessionary at the conclusion being ALHRC[10] and the difference between that and the description in the agreement. But Mr. Maletzky was not present to answer these questions, despite having set the matter down for hearing.’ My underlining for emphasis)

[13]      My brother further held at paras 10-12 that:

‘[10]     I respectfully agree with the judge president in the Zaaluka matter that the reversion to the cedent is an indication that the cession may be a ruse to enable Mr. Maletzky or ALHRC to provide legal services. There is also the claim for legal costs in both the application for default judgment and in the letter of demand (attached to the application for default judgment) which preceded the action.

            [11]      It is also not clear to me that the requisites for invalid cession are met by purported cession, given the reversionary provision as well as it not being clear whether there was a valid causa for the cession. This is quite apart from the question as to whether the cession is against public policy or contravening s 21 of Act 15 of 1995. In the latter eventualities, it is the duty of this court to mero motu consider the legality of the cession. It would seem to me that these aspects require further investigations.

[12]      I have accordingly decided to postpone this matter to 13 February 2013 at 10H00 for such investigation which may include the hearing of evidence and submissions. Mr. Maletzky will be entitled to give evidence on the issues then and present argument. Representatives of the cedents will be required to be in attendance to give evidence. The law Society will also be obliged to be represented to present argument and with the leave of the court question witnesses as amicus curiae.’

[14]      In the wake of my order of 18 January 2013 and that of Smuts J of 25 January 2013, certain individuals who apparently became aware of the orders through the media made contact with the court staff and filed affidavits, amongst others, suggesting that they had paid certain moneys to Mr. Maletzky to act on their behalf in respect of legal disputes while they had already ceded their rights of action to Mr Maletsky. The fact of payment to Mr Maletsky demonstrates, prima facie, that he receives reward for representing those who pay him in court proceedings and not that the true purpose of the cessions was not to pass dominium in the claims to Mr Maletsky – a condition precedent for a valid cession. One such person, Mr Aktofel states in his affidavit as follows:

‘[particulars preceding] My car was bumbed by Kleopas Zaaluka, on the 26/06/2011, but he does not want to pay my car. On the 24/10/2011 I (Actofel) and Theophelus, we go to Maletzkey as our lawyer to represent our case in the court. So that Kleophas Zaaluka he can pay our cars. Because he I the one who causing the accident.

Then I paid Maletzkey N$ 1600 in cash, on the 24/10/2011. He use to call us to go to court many times, but the court is not there, he use to say the court is postponed, but we do not have a confirmation. We are now TIRED!! We want our money back and our documents. Now we want to go where the other lawyers can help us.’ (My underlining for emphasis).

[15]      Mr. Aktofel submitted the receipt for the payment mentioned in his affidavit which, it appears, was issued to him by ‘Maletzky and Associates’ for moneys paid for ‘consultation and opening of a file’, evidence which is similarly relevant and admissible as similar fact. Mr. Maletzky also submitted some documents in justification of what he did. One such document is a ‘Special Power of Attorney’[11] authorizing him to act as an ‘agent/attorney’ of Mr Aktofel in respect of his legal dispute, further buttressing the inference that Mr. Maletzky is in fact rendering legal services and not the recipient of a dominium in the claims forming the subject of the cession.

[16]      In view of the fact that the real evidence strengthening the conclusion that Mr. Maletzky is acting as a legal practitioner came to my knowledge extra-curially, I had taken the view that the true facts ought to be established but that fairness dictated (given my prior knowledge) that the facts be established by a referee to be appointed in terms of s 17 of the High Court Act 16 of 1990, read with s 23 of the Supreme Court Act 15 of 1990, because that evidence is relevant to the question whether or not the cessions relied on by Mr. Maletzky are genuine, and not in fraudem legis.

Recusal application

[17]      Before I can deal with what is the true purpose of this judgment, it has become necessary for me to deal with an application for my recusal brought by Mr. Maletzky on 26 March 2013.  My recusal is sought on a very broad front.

Alleged grounds for recusal

[18]      The first ground relied on by Mr. Maletzkey is based on alleged reasonable suspicion of bias and enmity on my part. Mr Maletzky says that I have a grudge against a group of people rather loosely (but not accurately) referred to as lay-litigants;[12] and that he is one of such people and that the present procedure is an attempt by me to settle a score with him because he is one of such people. He adds flavor to this argument by saying that as Judge-President who assigns cases to judges, I assigned the case to myself to complete my desire to settle the score. He made reference, in particular, to a statement I made as Judge-President at the opening of the High Court legal year 2013 in support of the allegation of bias on my part. I said at the time:

‘While on this subject I wish to caution self-actors (that is lay litigants acting on their own behalf) who now make it a habit to defame and attack the characters of judges that such conduct is inimical to the independence of the judiciary. Baseless and ill-considered applications for recusal of judges simply on the ground that they have in the past ruled against a party have now become the order of the day. How one can first insult a judge and then use the same fact they had insulted the judge in the past as a ground for saying the judge will be biased , does not seem right to me’.

[19]      Mr. Maletzky further pointed out that on 18^th January 2013, I pre-judged his case before he was afforded the right to make full argument by ordering that he presents argument to persuade the court on an already made conclusion. He also added that he, together with a Mr. Hewat Beukes, had made common cause in respect of what he characterizes as the exposure of ‘judicial corruption’, manifested in particular in a campaign against the Hon Mr Justice Smuts for ‘money-laundering, tax evasion’ and such like.  If I understood him correctly, his premise is that that campaign has made him, and those with whom he makes common cause, the target of judicial wrath – as exemplified by the present procedure in the consolidated matters.

[20]      Mr. Maletsky maintains that the allocation of case I 3274/2001 to Smuts, J was therefore a deliberate act by myself and that the exercise of my power as the Judge-President to arrange a court room and to assign a judge to hear the matter metamorphose me into a complainant, prosecutor and a judge.

[21]      The second ground for my recusal is based on alleged incompetence and inconsistency in the orders made thus far. Mr. Maletsky maintains that on 13 January 2013, a rule nisi was issued calling upon him and amicus curiae to submit argument on 18 January 2013. Thereafter, the matter was postponed to 26 February 2013 for the appointment of a referee in terms of s 17 of the High Court Act. That did not occur on that date as Mr Maletzky wished to pursue his recusal application. Mr. Maletzky states that for these reasons, I lack ‘judicial acumen’ and must therefore recuse myself.

[22]      Mr Maletzky’s main complaint is that it was not competent for me to raise the issue of fraus legis. In so doing, he states, I had demonstrated my bias, particularly when I subsequently made an order (without affording him audi he alleges) calling upon him to show cause why I should not refer the matter for criminal prosecution.

[23]      There is no merit in any of the above propositions. I will start with the one alleging that the court’s bias is demonstrated by the fact of mero motu raising the issue of simulated cessions. I have already demonstrated that the court has power to raise the issue of a simulated cession mero motu. Secondly, having listened to Mr Maletzky’s explanation in open court during motion court and having considered the matter thereafter, I issued a reasoned ruling in which I came to a prima farcie view of the matter and called upon him (on a return date) to show cause why I should not make the order which my prima facie view dictated I should. By issuing the rule nisi I was affording him audi to persuade me otherwise. There is nothing untoward in such a procedure. Having mero motu taken cognizance it was within the court’s power to regulate the procedure going forward. That procedure involved Mr. Maletsky being afforded the opportunity to present his case. The same applies to the order made by Smuts J.

No case for recusal made out

 [24]     In the paragraphs that follow, I will demonstrate that I have no personal interest in the outcome of this case as alleged by Mr Maletsky. I will also show that based on the applicable legal principles governing recusal, Mr Maletsky has failed to show any basis for my recusal from presiding in the consolidated matters and for the purpose of making the orders I propose to make in this matter based on the prima facie view I formed when the matter was called in motion court before me and before Smuts J: which is to determine the genuineness of the cessions relied on by Mr Maletsky and to require a proper investigation into whether or not Mr Maletsky is acting in fraud of the law prohibiting non-admitted persons from rendering legal services to the public.

Principles governing Recusal

[25]      A fair, impartial and competent court or tribunal is a constitutional imperative: It is a non-derogable right guaranteed under Art 12 of the constitution. It is a right recognised in all civilized legal systems.[13] Biased or partial justice is no justice at all. It is the very negation of justice. Upon appointment, judges take the oath to administer justice under law and by taking that oath they make a solemn undertaking to uphold the law of the land, without fear or favour.  It is no small matter therefore that the judicial oath creates a presumption of neutrality and fairness.[14] That presumption is predicated on the premise again recognised in all civilized systems, that by virtue of their training, upbringing in the law and discipline of their calling, judges are capable of disabusing themselves of personal prejudices, predilections and petty-mindedness.[15]  This premise - buttressed by the all-important consideration that judges perform their judicial function in public and must provide reasons for their decisions which are then subject to scrutiny, and in the case of a trial court, subject to review or appeal - is a very powerful disincentive against capricious and whimsical decisions. All these considerations underpin the presumption of judicial impartiality and fairness.

[26]      An accusation of judicial bias or partiality is therefore one not lightly to be made or countenanced. It must be supported by either cogent evidence or be founded on clear and well recognised principles accepted in a civilized society governed by the rule of law.  If judicial bias or partiality is too 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 – in effect litigants or those with causes before the court seeking to decide who should sit in judgment over them.

[27]      In S v Malindi and Others[16] Corbett CJ in dealing with the discharge of an assessor in terms of s 147 of Act 51 of 1977 considered the common law principles regarding recusal and remarked as follows (at 969G-970I):

‘The common law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation (Edms) Bpk v Oberholzer 1974 (4) SA 808 (T). Broadly speaking, the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer: that is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important.

Normally recusal would follow upon an application (exceptio recusationis) therefore by either or both of the parties, but on occasion a judicial officer may recuse himself mero motu, i.e. without any such prior application [...]

It would thus seem that at common law the recusal of an assessor is a proceeding in open court and that it is an issue upon which the parties would be afforded an opportunity to be heard. Obviously, this would be so where one of the parties moved for the assessor’s recusal; and, in my opinion, it should also be so where the assessor or the court acts mero motu. A recusal would normally result in the proceedings being quashed and a new trial being directed’.

(Emphasis provided).

[28]      Although in later cases the basic principles have been refined and stated in more colorful terms, it boils down to the simple propositions stated by Corbett CJ in Malindi  in simple and yet characteristic eloquence: In short, to obtain the recusal of a judge, the party seeking bears the onus to show that the judge is biased or has an interest in the matter; or a person possessed of relevant information bearing on the matter may on reasonable ground entertain the thought that the judge is likely to be biased. To recap, in addition to the obvious situation of the judge’s interest in a matter, the common law recognizes vitiating bias where, considered objectively, the judicial officer is actually biased or there exists a reasonable apprehension that the judge might be biased.[17]

[29]      The Supreme Court stated in Christian v Metropolitan Life Namibia Retirement Annuity Fund[18], quoting from SARFU:

‘The test for recusal is ‘‘whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case. The test ‘is objective and…the onus of establishing it rests upon the applicant.’’ ‘

The position was restated by the Constitutional Court of SA in Bernert v Absa Bank Ltd.[19]

[30]      The applicable test for apparent bias, which is also applied by our courts, was stated as follows by Lord Hope of Craighead in Porter v Magil[20]:

‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

[31]      And as Lord Bingham put it in the Prince Jefri and others v The State of Brunei[21]:

‘The requirement that the observer be informed means that he does not come to the matter as a stranger or complete outsider; he must be taken to have a reasonable working grasp of how things are usually done.’[22]

[32]      Smuts, J applied the test recently in Januarie v Registrar of High Court & others[23] (at para 16 – 20) and in particular approved the following dicta from the cases referred to in his judgment: The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. It may also arise from the conduct or utterances by a judicial officer prior to or during proceedings. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must be reasonable. This double unreasonableness requirement safeguards against undue apprehensiveness, however honestly or anxiously held, on the part of a litigant that a judge will be biased. The court assessing the merits of a recusal application must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable.

[33]      Once these basic principles are understood, the challenge is their application to the facts. I come back to where I started:  impartial justice is a fundamental right under the constitution. Our law sets very clear guidelines for when a judge must recuse himself if already on the case.  

Principles applied to Mr Maletzky’s complaints of bias

[33]      It is impermissible for a judge to go out of his or her way to actively seek or campaign to have a case assigned to him or her for personal reasons[24] or so that he or she can, by binding judgment, produce a result which he or she thinks appropriate on the facts. That is tantamount to pre-judging a matter.[25] Mr. Maletsky suggested that is what happened in the present case. But let us consider if the belief is reasonable.

[34]      The judge president is the head of jurisdiction and in that capacity part of his responsibility is to distribute work, not only amongst other members of the court, but also to himself. Allocation of work amongst the court’s judges is a function that appertains to the office of judge president: He or she is both judge and administrator so to speak. It is absurd to argue that because the judge president, as head of court, assumes responsibility to hear a case filed at the court he or she has, simply by that fact, gone out of his way to desire a particular outcome. If that were the case the head of jurisdiction would not sit on any case.

[35]      In any event, the roll of the court is largely predetermined by the registrar of the court acting in the name of the judge president who, like the rest of the judges, is assigned work in terms of a roaster prepared by the registrar.  Motion court duty is performed by a duty judge assigned in terms of the roaster. A standby duty judge or any other judge proposed by the registrar and confirmed by the judge president hears motion court matters which the duty judge cannot hear for one or other reason.

[36]      I once again pray in aid Lord Bingham’s dictum in Prince Jefri and others v The State of Brunei[26]:

‘The requirement that the observer be informed means that he does not come to the matter as a stranger or complete outsider; he must be taken to have a reasonable working grasp of how things are usually done.’[27]

[37]      The consolidated matters were called in motion court when Smuts J and I respectively presided over motion court on 18 January and 25 January 2013 respectively. The notion of a court being specially arranged for either of us to preside in order to get at Mr Maletsky cannot be reasonable.

Alleged grudge

[38]      I next consider the allegation that I have a grudge against Mr Maletsky because he is a member of a certain group who have made serious allegations against judges and seeking recusal because of their own insults. To start with, during argument, I got the distinct impression that Mr Maletsky disassociated himself from such conduct. Be that as it may, it is a cruel irony that the circumstance now relied on to justify my recusal on the alleged ‘appearance of bias’, is the very mischief that the public address in question was intended to address – an address given in my capacity as head of court and seeking to educate the public at large about the unacceptability of ad hominem attacks against judges and using that as a basis for seeking the recusal of judges.

[39]      It is a matter of public record that the bench in this country is very small in number. It is infinitively more difficult therefore to assign matters to judges in a climate where, because of incessant personal attacks against them, judges incline towards not sitting on matters involving those people who insult them. And that is no fiction as I can attest to the number of judges who, much to my chagrin, have chosen not to sit in matters involving certain individuals who had in the past cast aspersions on their characters.

[40]      It is a notorious fact that accusations against judges, individually or collectively, of corruption and improper motives in the discharge of their duties are impermissible as it erodes public confidence in the courts. Who is better placed than the judge president of the High Court to educate the public about that and to remind them that there are potentially consequences for such conduct? As it happens, that was done as a general proposition and not case-specific. This ground for my recusal is therefore bad in law and stands to be rejected: No fair-minded and informed person would from the view that because the judge president warns the public against abusing judges, he, by so doing, would be biased against a group of people who, by choice, seek to attack the characters of judges.

Involvement of the Law Society of Namibia (LSN) questioned  

[41]      In both consolidated matters, the LSN was requested to submit argument and to assist the court on the issue the court wished to determine. The LSN then instructed Mr. Tottemeyer SC, assisted by Mr. Obbes. Counsel submitted heads of argument in keeping with the court’s request. The gist of their argument will be dealt with presently. Mr. Maletzky has raised strong objection to that action of the court. He argued that doing so was improper and that the only way in which the LSN could be involved was by joining as a party. This argument is fallacious and fundamentally flawed: The test for joinder is a direct interest in the outcome of a suit.[28]

[42]      The LSN has no direct interest in the outcome of this matter. Mr. Maletzky’s objection is based on a misconception and an unwillingness to accept the special relationship between the court and the organized legal profession: Legal practitioners are officers of the court. That imposes a certain duty and discipline on a legal practitioner, the most important of which is to assist the court to do justice. It was held in Disciplinary Committee for Legal Practitioners v Murorua and Another[29] that a legal representative who appears in court has a duty towards the Judiciary to ensure the efficient and fair administration of justice.

[43]      The LSN represents the collective statutory identity of the organized legal profession. Legal practitioners are called upon, as part of that duty, to submit argument to the court amicus curiae.[30] It is a system which serves us well and is to be encouraged, not deprecated. This court sits on appeals, especially in criminal matters, where members of the organized legal profession provide selfless and valuable assistance to the court by making submissions on behalf of self-represented appellants who are either unable to afford private legal representation, or have been disallowed legal aid.

[44]      The objection to the involvement of the LSN is therefore without merit and no fair-minded person, with all the relevant facts about the relationship between the court and the legal profession, will entertain the belief that requesting the LSN to assist the court as amicus in a matter where it is itself not a party, is designed to perpetrate an injustice on a litigant.

Mr Maletzky’s campaign against me

[45]      It is equally objectionable for a judge to sit in a case involving a subject matter on which he or she had publicly expressed an opinion tending to show support or disagreement with one side of the argument.[31] Another manifestation of that principle is that a judge must not sit in a case involving a party with whom the judge had publicly engaged in a public controversy. None of these considerations apply for the reasons I have given. But I have to consider Mr Maletsky’s actions since these procedure commenced.

[46]      In the intervening period, Mr Maletzky had embarked upon a sustained, if relentless campaign to vilify me - unprecedented in my judicial career. I cannot but help think that Mr Maletzky’s campaign is intended to buttress, as I am sure he sees it, the case for the argument subsequently that because he had made such unsavory allegations against me, I ought not to have presided in the matter. I will give examples:

a)    He wrote to FIFA accusing me of having embezzled funds of the Namibia Football Association in my former capacity as President of that body;

b)    That same allegation was made to the JSC with the request that I be ‘impeached’ for stealing FIFA money;

c)    He persistently sought my ‘impeachment’ for having made the orders I did in this very matter, despite his earlier request to the Supreme Court for it to review my order being refused;

d)    He laid a ‘complaint’ with the Anti-Corruption Commission (ACC) to ‘conduct a criminal investigation’ and prosecuting me for ‘corrupting’ the record of proceedings in this matter which took place on 26 March 2013 but was not, inadvertently, recorded by the court official who recorded the proceedings.[32]   

e)    He participated in publishing a newsletter in which serious allegations, not only of my alleged misconduct in respect of the FIFA funds is made, but also that I am ‘incompetent and unqualified’ to hold the office of judge.

[47]      The question arises: ‘Does this campaign by Mr. Maletzky merit my recusal?’ I have not expressed any view publicly in defence of the allegations made by Mr Maletzky; nor have I made any statement to or about Mr. Maletzky in reference to these allegations. I have also not expressed any desire (yet) to seek private redress against Mr Maletzky. I am content to have his allegations assessed by the relevant authorities to which he directed them.  

[48]      Having found, as I do, that there is no basis in law for the apprehension of bias, the issue arises whether I should recuse myself. The answer must be ‘no’: A frivolous application for recusal imposes a duty on the judge to hear the case – for it is contrary to public policy for a judge to, on the one hand, find that there is no merit to the recusal application, but then not sit on a matter because he may have had his feelings bruised by an ad hominem attack. The judicial system will fall apart if that were allowed to happen.

Referee or not

Why court preferred referee initially

[49]      Section 17 of the High Court Act, read with s 23 of the Supreme Court Act (Act 15 of 1990) empowers this court in any proceeding in which it is ‘considered to be just and expeditious’ to ‘direct that a special dossier be compiled by a referee’. A referee must be a ‘fit and proper person’.[33] The jurisdictional basis for the appointment of a referee by this court arises from s 17 of the High Court Act[34] which states:

‘In any proceedings before the High Court in respect of which the provisions of Article 23 (2) of the Namibian Constitution are applicable or in any other proceedings in which it is considered to be just and expeditious the court may direct that a special dossier be compiled by a referee, and the provisions of section 23 of the Supreme Court Act, 1990, and the rules of court relating thereto shall mutatis mutandis apply in respect of such a direction made under this section, and any reference in the said section 23 and the said rules of court to the Supreme Court shall be deemed to be a reference to the High Court.’ (My emphasis)

[50]      It is trite that in a civil proceeding, the court has no power to call witnesses, except with the agreement of the parties.[35] Even if the parties agreed, it would in my view be undesirable in the circumstances of this case, for the court to call as witnesses those persons who have submitted statements under oath as the statements call for further clarification and possibly production of further documents. Most importantly, certain explanations are needed from Mr. Maletsky himself in view of the documents that he submitted himself and filed of record in justification of what he did. Office files must be investigated and the status of the body through which Mr Maletsky operates properly investigated. Bank records may have to be subpoenad and employees of Mr Maletsky’s organisation interviewed. Based on what is covered in those documents and information obtained, production of further documents may have to be compelled. That is something not suited to a court in our adversarial system.

[51]      I had therefore considered it just and more expeditious to have the evidential issues that have arisen and which are so essential to establishing the true facts in this case  determined by a referee. It is stating the obvious that the evidence that had become available since the court orders were made is relevant to the issue before court.

Submissions of amicus on whether or not to appoint referee

[52]      In the true traditions of the profession, counsel instructed by the LSN to assist the court with oral argument, advanced very helpful arguments which had, in fact, dissuaded me from following the course. I had set about at the start. In short, amicus argued that given that the High Court’s power to appoint a referee derives from s 23 of the Supreme Court Act which limits the appointment of a referee to inquire into matters involving ‘statistical and scientific ‘ information , there is no general and unlimited power in the High court for the appointment of a referee. On that argument, therefore, since the present matter does not, in the words of s 23 of the Supreme Court Act, implicate statistical or scientific information, this court would be exceeding its powers by appointing a referee.

[53]      My prima farcie view of the matter and which informed my initial intent to appoint a referee, was that the High Court’s power to appoint a referee is triggered, not by s 23 of the Supreme Courts Act, but by s 17 of the High Court Act. The latter does not limit the High Court’s jurisdiction to ‘statistical and scientific information’ in the way s 23, which is the trigger for the Supreme Court’s jurisdiction, does for the Supreme Court. My view further was that s 23 is incorporated into s 17 to provide for the procedure to be followed by the High Court. Amicus retorted that the words ‘or in any other proceedings in which it is considered to be just and expeditious’ must be read ejusdem generis with the words appearing with them and if read in that way, the words ‘or in any other proceedings’ are limited to proceedings before the High Court in respect of the provisions of Article 23 (2) of the Namibian Constitution.

[54]      Although my prima facie view is different, the cogent arguments advanced by amicus curiae counsel are arguable and a contrary decision, which would constitute binding precedent, is ill- advised without the benefit of full and rigorous argument in an adversial setting. I have therefore chosen not to go the route of appointing a referee and expressly reserve the question whether the jurisdiction in s 17 can only be invoked in the limited circumstances as contended by counsel appearing amicus. That approach commends itself even more in view of the fact that the question and issues I had wanted resolved can still be achieved by other means.  It is to that issue that I turn next.

[55]      I had previously stated that the court’s concern in the consolidated matters is whether the cessions are genuine and not an abuse of the court’s machinery and whether a person not entitled to practise law is in fact doing so using sham cessions. The course of action adopted by the court is predicated upon a very important principle of our law: That the court has the duty to ensure that the public is protected from the pursuit of nefarious activity through the medium of the court; that no one should be allowed to benefit from his own wrong-doing; and that the court’s machinery is not abused. As was stated by the Supreme Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd: [36]

‘[20]     The primary function of a court of law is to dispense justice with impartiality and fairness both to the parties and to the community that it serves. Public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly to facilitate the resolution of genuine disputes. Unless the court protects its ability to function in that way, public confidence in the administration of justice may be eroded by a concern that the court’s processes may be used to perpetrate unfairness and injustice, and ultimately, this may undermine the rule of law.  And public confidence in the courts is vital to the judicial function because, as Justice Felix Frankfurter once reminded us, ‘(t) he Court’s authority-possessed of neither the purse nor the sword- ultimately rests on sustained public confidence in its moral sanction.’ (My emphasis)

And

‘[21]     Abuse connotes improper use, that is, use for ulterior motives. And the term ‘abuse of process’ connotes that ‘the process is employed for some purpose other than the attainment of the claim in the action’.

…

What amounts to abuse of process in insusceptible of precise definition or formulation comprising closed categories. Courts have understandably refrained from attempting to restrict abuse of process to defined and closed categories.’

[56]      In the paragraphs that follow I will set out the public policy rationale for the prevention of non-admitted persons rendering legal services to the public.

Person has no obvious remedies in civil law

[57]      Public policy is at the root of this matter. Section 21 prohibits a non-admitted person from rendering legal services.  I had already stated the public policy rationale in my reasons of 26 February 2013. I will briefly amplify those reasons. Maritz J (as he then was) in Compania Romana De Pescuit (SA) v Rosteve Fishing[37]  pointed out that s 21 of the Legal Practitioners Act, 1995 (LPA) is aimed at protecting the public against charlatans masquerading as legal practitioners who seek to prey on the misery and money of its members. He added that s 21 serves the public’s interest by creating an identifiable and regulated pool of fit, proper and qualified professionals to render legal services; and that it is aimed at protecting, maintaining and enhancing the integrity and effectiveness of the legal profession, the judicial process and the administration of justice in general.[38] The court also reasoned that s 21 is formulated in peremptory terms and that a contravention of its prohibitive provisions constitutes an offence carrying with it severe punishment. For that reason, any court process instituted on behalf of a litigant by a person other than an admitted practitioner therefore constitutes a fatal defect and such process is to be visited with nullity. In the court’s judgment, the authority to practise is essential for the proper administration of justice. The legislature intended that if a person, other than a legal practitioner, sues out any court process or commences or carries on any proceeding in a court of law in the name or on behalf of another person, such process or proceedings will be void ab initio. Any 'looseness' in the enforcement of the well-established practice and of the Rules of Court in that regard is likely to bring the administration of justice into disrepute, erode the court's authority over its officers and detrimentally affect the standard of litigation.[39]

No remedy for member of public against charlatans

[58]      A legal practitioner has a contractual relationship with the client. That relationship imposes a duty upon the legal practitioner to exercise due skill and care in the conduct of the client’s affairs. If he fails to, he is liable in delict towards the client.[40] It is most improbable that a member of the public, who sues upon negligence of a non-admitted person who renders him legal services under the cloth of a cession, can ever be successful. In my view, public policy is against such a result.[41]

Indemnity of Fidelity Fund absent

[59]      The purpose of the fidelity fund is to reimburse persons who may suffer pecuniary loss as a result of theft committed by a legal practitioner, a candidate legal practitioner attached to, or a person employed by, a legal practitioner, of any money or other property entrusted by or on behalf of such persons to the legal practitioner or to such a candidate legal practitioner or a person employed in the course of the legal practitioner's practice or while acting as executor or administrator in the estate of a deceased person or as a trustee in an insolvent estate or in any other similar capacity.[42] A member of the public who suffers at the hands of a non-admitted charlatan  will not be reimbursed by the fidelity fund.

The LSN’s suspension function absent

[60]      The LPA establishes a Disciplinary Committee[43] which exercises disciplinary control over legal practitioners and candidate legal practitioners. The statutory body is empowered to entertain complaints from any person who is affected by the conduct of a legal practitioner and is competent to impose penalties[44] for unprofessional or dishonorable or unworthy conduct. An appeal procedure is further available to a party aggrieved by the decision of the Committee. These remedies are once again not available to a party aggrieved by the conduct of a person who is not an admitted legal practitioner but providing legal services under the guise of a cession.

Court’s suspension function equally absent

[61]      The courts derive their suspension powers and functions from s 37 of the LPA, on application by the LSN. The court is further competent to, instead of suspending the legal practitioner who is guilty of unprofessional or dishonorable or unworthy conduct, and if in the circumstances of the case it thinks fit so to do, reprimand the legal practitioner; or order the legal practitioner to pay a penalty not exceeding N$ 10 000 or may make any order as to restitution in relation to the case. Legal practitioners are officers of the court. They are expected to display a standard of professionalism in their dealings with the court. The functioning of our courts is vitally dependent on the assumption that legal practitioners will act with complete honesty and integrity. Without it the courts simply cannot function.[45] The court’s supervisory function does not extend to non-admitted persons.

Why simulated cession is contra bonos mores

[62]      The test for determining whether or not the scheme deployed by Mr. Maletzky is a ruse is best determined by considering where the risk lies in the event that the claim brought by him through the cession fails: Mr. Maletzky receives remuneration for the service he renders. The cessionary receives nothing from him in monetary terms for ceding the cession to Mr. Maletzky. He receives a service in return. Mr Maletzky is in every respect in a win-win situation: He carries no risk. If the case succeeds, Mr. Maletzky receives the proceeds of any successful claim and decides what amount to pay over to the supposed cedent. The possibility that he may not do so cannot be discounted. If in fact that happens, the member of the public has no recourse against the Fidelity Fund because Mr. Maletzky is not admitted: Therein lies the public interest that the court must protect.

Referral for police investigation

[63]      If it be established that Mr Malezky took a cession from a member of the public and was paid for doing so in order that he may, for such consideration, appear in court as if he were a litigant pursuing a private right, I am satisfied that such conduct not only would be fraus legis, disentitling him from seeking recourse before court but would also make him criminally liable for contravention of s 21 of the LPA which makes it a criminal offence for a person who is not an admitted legal practitioner to represent members of the public in court proceedings. The rule of law requires that people obey the law. This kind of conduct, if left unchecked, breeds a culture of impunity and ultimately leads to complete distrust in the very institutions created to maintain an orderly society. To use a court to achieve an unlawful purpose is the ultimate disrespect that anyone can show to those institutions and the Constitution.

[64]      It is apparent from a document since submitted to court by a member of the public that Mr Maletzky made himself out to be a legal practitioner. That too, if true, constitutes a criminal offence. It must be investigated in the public interest.

[65]      I have therefore decided to have the matter referred to the Inspector General of the Namibian Police (NAMPOL) to investigate whether the cession relied on by Mr Maletzky, and the documents since received by the court from members of the public, constitute a criminal infraction against the LPA. Given that the civil process will be kept in abeyance pending the finalization of that investigation, there is no prejudice for the defendants, save that it infuses a sense of urgency into the entire matter. For that reason I will request the Namibia Police to deal with the matter in all deliberate haste.

[66]      The police, as an organ of the State, have a constitutional obligation:

‘to accord such assistance as the Courts may require to protect their…dignity and effectiveness’.[46]

[67]      It is important to set out the purpose of the referral. In the first place, its purpose is for the police and the prosecutorial agencies to ascertain if any crime has been committed: the rule of law requires that they do. The second purpose is to obtain as much information as possible, to be placed before the court, which will assist the court in coming to a conclusion one way or the other whether the cessions on which Mr. Maletsky relies are genuine or a sham. The police will be required to provide a report on their investigation within 60 days of this order, to be submitted to the registrar of the court.

[68]      I wish to end this judgment by commenting on a matter which has been Mr. Maletzky’s pre-occupation lately. It concerns what transpired during argument on 26 March 2013. During argument some exchange took place between him and the court on the sequence of certain events, notably the timing of the request to the LSN to act amicus and the receipt of information from members of the public. It is clear from the record that the request to the LSN was made in the very first order issued by this court. The information from members of the public was received after that order. It could never have been any other way.

[69]      I never at the time held out, nor do I now do so, that Mr. Maletzky was incorrect in his submission that the decision to invite the Law Society (LSN) as amicus curiae was preceded by the disclosure by members of the public of information that establishes a pattern of behavior that he renders legal services to the public. My probing him during argument on 26 March 2013 if the disclosure of such evidence preceded such an invitation was a question posed to him to clarify the sequence of events as I perceived them during the argument. The decision to invite the LSN as amicus curiae was made in the same order that invited him to come and present argument to me based on the papers as they stood when I first heard the matter in Motion Court. The decision to invite the LSN is therefore sound or unsound, not because of an argument that took place on 26 March 2013, but on the basis that I felt the need for doing so when I made the rule nisi and to afford Mr Maletzky the opportunity to address me on the return date.

[70]      No evidence was led on 26 March 2013. Argument was based on the affidavit filed of record by Mr. Maletsky and the written and oral submissions made by him and counsel. This judgment deals with the matters that fell for consideration on that day. The court speaks through its judgments; and once judgment has been rendered, there is no place for dialogue and interaction between a judge and a litigant or a member of the public[47] on the matters covered by the judgment. As is apparent from the rather disobliging comments[48] and activity lately engaged in by Mr. Maletsky, including direct approaches to me[49], he desires some kind of continuing dialogue with me on this matter. There is no place for that and this judgment must serve as sufficient notice to him that such conduct will not be countenanced. All the reasons and all the information he requires is contained in this judgment and the documents on file.

[71]      All documents and communication received from Mr Maletsky and the media, and the replies thereto, are available on the court file. Also made available on the file is the Workers Advice Center newsletter in which issues dealing with this matter are referred to.

The order

[72]      I therefore make the following orders:

1.    The proceedings in cases I 492/2012 and I 3274/2011 are stayed pending finalization of the investigation by the Namibia Police as contemplated in the body of the judgment. This matter may not be placed on the roll of this court without the leave of a judge of the High Court.

2.    The registrar of the court is directed to make two duplicate copies of the contents of the file, including this judgment, and forward same to the Inspector General of the Namibia Police and furnish a copy to the Office of the Prosecutor General.

3.    The Inspector General must submit to the registrar of the High Court a report on the investigation within 60 days of this order.

4.    Once the report of the Inspector General is received, the registrar must, within five days of it being received, by notice to Mr Maletsky, the Law Society of Namibia and legal practitioners Ellis Shilengudwa, place the matter on the roll of the court for the matter to be dealt with according to law.

______________________

PT Damaseb

Judge-President

APPEARANCE:

APPLICANT:                                                                             A MALETZKY In Person

AMICI CURIAE                                                                   R. TOTTEMEYER SC, assisted

                                                                                        by D OBBES, instructed by the Law Society of Namibia, Windhoek.

DEFENDANT (in the consolidated action)                               K KLAZEN

Of                                                                                            ELLIS SHILENGUDWA,   WINDHOEK