Damaseb refuses to recuse himself

Judge President Petrus Damaseb has dismissed an application by former magistrate Peter Kavaongelwa that he recuse himself from hearing a N$100 000 lawsuit against him instituted by Nampol Inspector-General Sebastian Ndeitunga. Damaseb ruled yesterday in the High Court that the recusal application was without merit and that he saw no reason why he could not rule against Kavaongelwa, who had alleged in his argument that he and Damaseb were close friends. Kavaongelwa told Namibian Sun after the hearing yesterday that he would appeal Damaseb’s decision. The case stems from a phone call Ndeitunga received from Kavaongelwa in January 2006, who at that stage was still a presiding magistrate, requesting him to consider withdrawing fraud charges against lawyer, Arumugam Thambapilai. Thambapilai had been arrested about a month before the phone call on charges of fraud for allegedly lodging fraudulent claims with the Motor Vehicle Accident (MVA) Fund on behalf of his clients. Ndeitunga said he reported Kavaongelwa's phone call to Prosecutor-General Martha Imalwa a few days later, asking her to ensure that Thambapilai's case would not land in front of Kavaongelwa. The former magistrate initially sued Ndeitunga, who later turned the tables on him and instituted his own defamation action. The initial amount of the lawsuit was N$1 million, which was later reduced to N$100 000. Damaseb said yesterday that Kavaongelwa had brought his recusal application only after Ndeitunga had finished testifying and had closed his case. The judge said that according to Kavaongelwa, he had made a mistake in not raising the issue of bias at the time of the commencement of the trial. But because the court made an adverse ruling against him, he is now convinced that the judge is biased. “It is not in the interest of the administration of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgement before raising the issue of recusal,” Damaseb said yesterday. He set the matter down for a status hearing next Tuesday. This will enable the parties to address the court on the procedures to be adopted to enable Kavaongelwa to apply for Ndeitunga to be recalled for further cross-examination, if he still wishes to do so. He directed the legal counsels involved to convene a meeting for no later than this Monday for the purpose of preparing the status hearing’s joint report. Damaseb added that any failure to comply with this will entitle him to seek sanctions in terms of the court rules. Kavaongelwa was further ordered to pay the costs associated with the postponement of the trial on October 31 last year. So far the lawsuit drama has included claims in court papers about Ndeitunga’s background, including that he is an Angolan citizen who had acquired Namibian citizenship under false pretences, which has been previously reported by Namibian Sun. Then in July this year Kavaongelwa argued for Damaseb’s recusal on the basis that they are allegedly old friends. As a proof of their friendship, Kavaongelwa attached photographs of himself and Damaseb allegedly partying together in Moscow during their days in exile. This drama was preceded by an allegation of inappropriateness against Kavaongelwa’s attorney Titus Mbaeva, who allegedly extended an invitation on behalf of his client to the police chief to come to State House in order to reach an out-of-court settlement. There have also been threats about divulging sensitive information, allegedly relating to Ndeitunga’s credibility if he did not agree to the meeting. WINDHOEK FRED GOEIEMAN