Former justice minister Sacky Shanghala will continue with his attempt to have seven “questions of law” decided by the Supreme Court.
Shanghala says he intends to petition the chief justice against the dismissal of his application to have his criminal trial halted until the Supreme Court has decided the matter.
He informed acting judge Moses Chinhengo in the High Court at Windhoek Correctional Facility yesterday that he will address a petition to the chief justice.
The judge dismissed the application by Shanghala, his business partner James Hatuikulipi and another accused in the Fishrot case, Pius Mwatelulo, to have the legal questions reserved and sent to the Supreme Court in a judgement delivered last Thursday.
The application filed by Shanghala, Hatuikulipi and Mwatelulo near the end of May can only be instituted after the completion of their trial, Chinhengo concluded in his judgement.
He also said four of the legal questions that Shanghala, Hatuikulipi and Mwatelulo wanted to be sent to the Supreme Court concern their right to a fair trial while they do not have legal representation at this stage, and were dealt with in a judgement on an application for his recusal from the Fishrot trial.
Those questions should not again be placed before the Supreme Court, which already had an opportunity to consider the same issue when one of the accused directed a petition to that court in an attempt to appeal against his judgement on the application for his recusal, which was delivered in March, he said.
Three other legal questions are concerned with his competency to deal with the Fishrot trial and should have been the subject of a separate application, Chinhengo said as well.
Such an application could take the form of a challenge to the court’s jurisdiction or an application in which the president, who appointed him as an acting judge, and the Judicial Service Commission, which made a recommendation for his appointment, are also cited as parties with an interest in the matter, he said.
The application that Shanghala, Hatuikulipi and Mwatelulo filed is a disguised attempt by them to get an interdict against the continuation of plea proceedings, which started in December last year and were then interrupted and stalled by an application for him to step down from the case, Chinhengo said.
The questions that Shanghala, Hatuikulipi and Mwatelulo wanted to be referred to the Supreme Court deal with decisions that Chinhengo made during previous court appearances by the 10 men charged in the Fishrot case, when he directed that the charges against the accused should be put to them for their pleas to be taken, although some of the accused do not have legal representation at this stage.
Shanghala, Hatuikulipi and Mwatelulo also questioned the legality of Chinhengo’s appointment as an acting judge of Namibia’s High Court.
One of the questions on which Shanghala, Hatuikulipi and Mwatelulo wanted an answer from the Supreme Court is whether their right to a fair trial is being impaired and violated by the fact that they are without legal representation in their criminal trial.
After the delivery of Chinhengo’s judgement on Thursday, Shanghala filed a new application in which he asked Chinhengo for directions on the procedure he should follow to approach the Supreme Court in connection with the application to have questions of law reserved.
Having been addressed by Shanghala yesterday, Chinhengo said he would give his decision on Shanghala’s request for directions on the procedure to be followed on Friday.
The judge also indicated, though, that it is not a court’s task to give legal advice to a litigant.
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