Personally liable

The Supreme Court has ruled that a magistrate found guilty of conduct deemed to be in bad faith, malicious or fraudulent should be sued in her personal capacity.

05 December 2018 | Justice

Deputy Chief Justice Petrus Damaseb has warned magistrates and judges that they could be held personally liable if they are found guilty of negligence and miscarriage of justice.

This risk was highlighted this week when the Supreme Court dismissed the appeal of a man who wanted to sue the State for more than N$2 million for his wrongful conviction. “I want to warn you that there are personal principles on us as judicial officers. If we don't do our jobs properly, we can be sued personally,” Damaseb said at the opening of a workshop for magistrates in Windhoek this week. He said failing to comply with the requirements of the job could have very serious consequences.



Disgrace and failure of justice

The case Damaseb referred to was brought by Pieter Petrus Visagie, whose trial before Magistrate Elina Nandago was described as a “disgrace” and a “failure of justice”. Visagie appealed against his three-year prison sentence after Nandago had convicted him of fraud.

The case had dragged on for five years and was postponed 37 times. Visagie was arrested in 1998. He was eventually convicted in March 2003, despite the prosecutor having closed the State's case in August 2000 already.





According to court documents from Visagie's successful appeal to the High Court in 2005 after he had served two years behind bars, Nandago “was determined to get a conviction”.

The appeal judgment noted that this was clear from the way Nandago had questioned the prosecutor's decision to close the State's case.

Following the closure of the State's case, Nandago allowed further witnesses to be called and generally interfered unduly in the handling of the case against Visagie, the High Court found.

In the judgment setting aside Visagie's conviction and sentence, the judge wrote that the trial was “one of the biggest disgraces, and a failure of justice, which I have seen on record”.

The judgment found that Nandago had denied Visagie a fair trial, and had acted with gross negligence and malice.

Who is liable?

Once released, Visagie sued Nandago for N$2.1 million in damages. He also argued that the State, the Magistrates Commission and the attorney-general were liable for Nandago's conduct that led to his wrongful conviction.

The State argued that it could not be held liable for the conduct of the Judiciary. The High Court agreed, and its verdict was upheld by the Supreme Court yesterday.

In this week's Supreme Court ruling, Chief Justice Peter Shivute, Deputy Chief Justice Petrus Damaseb and Judge Theo Frank upheld the majority finding of the High Court.

The High Court underlined the independence of the Judiciary and the separation of powers between the State and Judiciary. It found that the appellant had sufficient alternative options to hold the magistrate responsible in her personal capacity.

Damaseb, who read the judgment, said the true reason for the liability claim against the State was the concern that Visagie would be unable to recover the damages claimed from Nandago. If the State could be held accountable for the magistrate's actions, Visagie would be “guaranteed full recovery of the sizeable amount of N$2.1 million he claims in damages.”

Damaseb said the question was whether the State should be forced to use already scarce resources to pay damages when there were multiple avenues open for Visagie to claim damages from the magistrate personally.



Harm

Damaseb said if the State could be held liable for the wrongful acts of judicial officers, the separation of powers between the State and the Judiciary could be fatally harmed.

Damaseb agreed with arguments by the State that when the State is not the actual wrongdoer, allowing the State to be held accountable for the wrongful and unlawful conduct of a judicial officer would only serve to create in the public's mind the perception that there are links between the judicial officer and the arm of the State that controls the public purse.

Further, should the State be held liable to pay damages it would create difficulty for the executive branch of government to recover the money from the judicial officer in question.

Damaseb said it was unnecessary to extend liability to the State for the malicious and fraudulent conduct of a judicial officer and doing so would “create a far worse mischief than not extending it”.

He said Visagie, and others in the same position, had at their disposal “a whole range of remedies to deal with a deprivation of the right to liberty” other than holding the State liable.

The Office of the Judiciary yesterday said that the Supreme Court judgment would be brought to the attention of the Magistrates Commission.

The Legal Assistance Centre, which represented Visagie pro bono, confirmed yesterday that the case against Nandago to hold her liable for damages would be back in the High Court early next year.

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