Full Citation: Prosecutor-General v The Ombudsman and Another (CA 66 of 2017) (2020)

NAHCMD 119 (26 March 2020)

Facts of the Matter

Mr. Muller (the second respondent), was convicted in the Magistrate Court of Aranos of a
traffic offense relating to the parking of a motor vehicle and was sentenced to a fine of
N$1500 or four months imprisonment wholly suspended for five years on condition that he
was not convicted of the same offense during the suspension period. Unhappy with the
conviction, hence, he lodged an appeal to the high court against his conviction (para. 4). He
approached the Office of the Ombudsman (the first respondent) to represent him, who
subsequently filed a notice to represent the second respondent (para. 5). The second
respondent, was cited stating that “the Magistrate was clearly confused and he reasons
could never support my conviction”, further that he was “unfairly treated and that his “human
right” to a fair trial was infringed.

The Prosecutor-General (the applicant) brought an application before High Court seeking
an order disallowing the first respondent to act on behalf of the second respondent as his
legal practitioner in a criminal appeal in a matter Frederick Muller v The State, case number
CA 66/2017 citing that the second respondent was not aggrieved (para.) 6). Meanwhile,
Ombudsman, John Walter, deposed to the main opposing affidavit that he perused the
records and was convinced that a fundamental right was infringed (para.9) and that he
evoked his power per Article 25(2) to provide the second respondent with assistance (para.
10).

The applicant referred to the purpose, power and functions of the ombudsman as per
Ombudsman Act 9 of 1990 (para.13) to be read with Article 25(2).

Legal question

The issue to be decided was whether the second respondent was an aggrieved person as
per Article 25(2) of the Constitution (Para. 23). Whereas, the standing of a party to approach
a Court to protect him/her against unlawful interference with his/her rights is dependent on
whether his/her rights are infringed or there is a threat of such infringement (para.29).
Meanwhile, the question centers on the interpretation of Article 25(2) which grants the court
the power to make all orders to secure the applicant’s enjoyment of rights and freedoms
(para.33).

Rule of law

Namibia is founded on three key pillars: democracy, the rule of law, and justice for all per
Article 1 of the Constitution. The Rule of Law which means that all individuals and l
institutions including judges, magistrates, legislature, should work within the framework of
the constitution. Central is the provisions of Article 25(2) which have been interpreted by
both courts (para.24) and cited the first case ever where two Constitutional-established
persons contest a dispute between them (para.1), the development was welcomed, as it
resonated with the foundational principles of the rule of law and legality (para. 2), hence,
question in 3 above relates to Topic 4.

Discussion

The court at para.31, stated that the person who claims that his or her fundamental right and
freedom has been violated has to make an application to the court, seeking relief of
protection or enforcement of his or her right and freedom. Article 25(2) differentiates
between a substantive right, which gives the aggrieved person the right to approach the
court and the procedure to be followed by the aggrieved person. In Para. 33, the court noted
that proceedings have been brought up by the Prosecutor-General and not the second
respondent, hence, there was no application or counter application by the latter before the
court alleging that his fundamental right has been infringed.

The court further reasons in para. 35 that even if the court were to find that the right of the
second respondent was violated, he has not formally applied for protection or enforcement of
his fundamental right to a fair trial. Para. 44 clarify that of among the powers stated in Article
92, there is no power vested in the Ombudsman to challenge the decisions of judicial
officers. Thus, the court after taking everything into account, concluded that the
Ombudsman’s contest that he is entitled to challenge decisions by judicial officers if he
consider such decision unfair and infringing on a person’s right to a fair trial, did not have a
foundation in law (para. 50).
Court Decision:

The court set an order disallowing the first respondent to represent the second respondent
as his legal practitioner in a criminal appeal of Fredrick Vincent Muller v The State, case
number CA 66/2017, at no costs