Justice delayed as magistrate quits 0 A Windhoek magistrate’s resignation earlier this year, before judgment in a case dating back seven years, could mean the case has to start afresh.Lawyers and family say that would be traumatising and costly.
Lawyers last week argued that the former presiding magistrate in the culpable homicide case, Kaulikalelwa Nghishitende, cannot “wash her hands” of her responsibility to deliver judgment.
Both the public prosecutor and defence counsel tried to have her temporarily appointed so that she could deliver judgment in the case, but the Magistrates’ Commission said Nghishitende had declined the offer.
“The Magistrate’s Commission was willing to appoint Ms Nghishitende temporarily to dispose of her partly heard criminal cases and initially she was willing to be appointed because, according to what has been conveyed to me, one of the cases is only for judgment,” Divisional Magistrate Rina Horn wrote in an email dated 2 September, which was submitted to court last week.
However, she added that Nghishitende later informed her that it would not be possible for her to attend to her partly heard cases anymore.
Horn suggested that the trials would have to start from scratch.
During a brief telephonic conversation on Friday, Nghishitende, now employed in Oranjemund, told Namibian Sun she can’t comment on the situation but claimed that she had given her reasons for the decision.
Defence counsel Tuhafeni Muhongo, appearing on behalf of George Petchnig, argued in court last week that it would be “grossly unfair” and not in the interest of the State or the accused, to restart the trial.
He argued that Nghishitende had not provided “cogent reasons” for being unwilling to deliver judgment and that starting anew would incur double costs for the State and the accused, as well as potentially “re-traumatising” witnesses.
Muhongo told the court that all evidence in the trial had been presented and final submissions delivered by December 2015, so the case could not be deemed as partly heard, as only judgment was outstanding.
Windhoek Magistrate Alweendo Sebby Venatius however told Muhongo that the only option was to start again. He explained that the law does not make it possible to compel the former magistrate to finalise the case.
Muhonogo told Namibian Sun that in his opinion “there are no reasons whatsoever as to why the previous presiding magistrate cannot deliver the judgment that she reserved.”
He added that in his view it is the duty of magistrates who vacate an office to “plan their diaries accordingly and wind their work up in such a manner that the rights of persons and the ends of justice are not prejudiced. This is in line with the provisions of the Magistrate’s Code of Conduct and the Magistrate’s Act, 2003.”
Public prosecutor Ivann Tjizu also requested the temporary appointment of the former magistrate, as a letter dated May 2016 shows.
He told the Magistrates’ Commission that both outstanding cases in which Nghishitende had been the presiding magistrate are serious cases and “are at such an advanced stage of trial with only judgment outstanding in both while they have in addition been pending on the roll for a lengthy period.”
Furthermore, he said starting anew would be “highly undesirable and prejudicial” to the accused’s rights to a speedy trial, as well as to the State, as it would require tracing and re-subpoenaing witnesses “the majority of whose whereabouts are no longer known”.
The news that the trial would have to begin anew was a blow for Moddesty Farmer, the mother of Riozaan Freyer whose life was turned upside down by a car crash in Windhoek seven years ago.
Freyer is in a permanent vegetative state and Farmer had to quit her job to care for him.
For the past seven years, she has attended the court case against Petchnig, who was charged with culpable homicide after a police investigation found he was the driver of the vehicle that caused the crash, in which two people died.
Petchnig pleaded not guilty, claiming he had no recollection of the accident, which cost him the loss of the lower part of his arm. His defence has been based on his claim that he was not the driver of the vehicle.
“To be honest, if the case has to start afresh again, after so many years that have passed, after we have come so far, it would be very upsetting to us,” Farmer said last week.
After the case was heard in December last year, Nghishitende reserved judgment until 20 January. On that date, she informed the court that the judgment was not ready. The case was postponed to April and then to July.
On Thursday, Magistrate Venatius postponed the case to 20 January 2017 for purposes of special review.
JANA-MARI SMITH