mls vindicated

FULL STORY
18.11.2010
Kasuto versus Supreme Court
By: JANA-MARI SMITH
IN an unprecedented legal move, a Namibian lawyer and his client are
challenging a Supreme Court judgement handed down in November. What
makes the development more bizarre is a private visit to the home of Chief
Justice Peter Shivute by two former politicians in a failed attempt to involve
the Chief Justice in a post-judgement dispute.
In a ?notice of irregularity? Ephraim Kasuto, who represented Malaia Joses Amukutuwa in
a Supreme Court dispute over the sale of uranium prospecting licences to an Australian
mining company, is now challenging the Supreme Court verdict.
The Namibian is informed that one Supreme Court judge described the challenge as
?perplexing? in view of the fact that the Namibian Constitution holds Supreme Court
judgements as final and binding, without the option to appeal or review the judgements.
Kasuto and his client, Amukutuwa, filed the ?notice of irregularity? with the Supreme
Court following a judgement against them in early November.
The legal saga is based on a case in which Metals Namibia and Metals Australia won
their appeal against Amukutuwa, who sued the mining companies for allegedly conning
him into selling two mining exploration licences in the Erongo Region.
The Supreme Court judgement concluded that the sale of the licences was valid and
saddled Amukutuwa with the legal costs, estimated at approximately N$2 million.
The night-time visit to the house of Chief Justice Peter Shivute on November 9 backfired
badly for Kasuto, who was implicated by the visitors when they allegedly informed Chief
Justice Shivute that he, and his client, had advised them to ?talk to the Chief Justice?.
The informal visit cost Kasuto a meeting with the Chief Justice, who ?was furious? at the
suggestion that he would consider involving himself, The Namibian has established.
KASUTO FACES
MISCONDUCT
The increasingly desperate attempts by Amukutuwa and his legal advisors to have the
Supreme Court judgement reversed or reviewed have led to the lodging of a formal
complaint of ?serious professional misconduct? against Kasuto with the Law Society of
Namibia.
The complaint sent to the Law Society said that Kasuto ?acted in a way which reflects
upon the dignity and status of the Supreme Court and is accordingly contemptuous of it?.
The complaint of misconduct furthermore argues that Kasuto?s actions is an obstruction
of justice ?by preventing the implementation? of the Supreme Court decision.
His attempts to challenge the judgement is described as ?reckless disregard of the
correct legal position ...?
As a result of Kasuto and his client?s battle against the Supreme Court judgement, a
senior advocate, who formed part of Amaktuwa?s legal team during the Supreme Court
proceedings, officially distanced himself from the actions
KASUTO IN THE COLD
In a letter to the Supreme Court on November 10, the senior Windhoek advocate
criticised Kasuko?s attempts to ?seek to arrange an audience with you [Chief Justice
Peter Shivute] for purposes of lodging an objection to the judgement given ...?
The advocate wrote that he wished to ?place on record that I distance myself, in terms
that I cannot emphasise strongly enough, from the above action and objection. The
course taken by [Amakutuwa] was not discussed with, nor approved by me?.
The advocate concluded by saying that ?the Namibian Supreme Court has always
maintained impeccable standards of integrity and impartiality and the hearing of the
above matter was no exception to this proud tradition?.
He placed on record ?that I regret that a party who was represented by me saw it fit to
cast aspersions upon the impeccable integrity? of the Supreme Court and the judges
who ruled in the case.
Kasuto denied yesterday that he had advised the two elderly former politicians to visit
the Chief Justice?s house at night. Kasuto admitted that the ?notice of irregularity? is
?not a normal notice? and was done for ?the attention of the Chief Justice?
He furthermore said that he and his legal team are still ?deciding what the next legal
steps should be?.
Kasuto claims that he has ?good reasons? to tackle a Supreme Court judgement, and
added that the judgement was ?based on points not raised? during the trial in the High
Court or in the Supreme Court.
A source close to the proceedings said the fact that Namibia?s Constitution does not
provide any legal means to appeal, review or request a retrial is ?well known to Kasuto
as a senior legal practitioner?.
Kasuto however said yesterday that the article in the Constitution that prohibits steps
against a Supreme Court judgement is ?a question of interpretation?.
Prior to the notice filed with the Supreme Court, Kasuto informed the Ministry of Mines
and Energy shortly after the Supreme Court judgement that ?due to special
circumstances relating? to the judgement ?there are strong grounds to challenge the
judgement?.
Kasuto informed the Ministry on behalf of his client he ?will take the matter up with the
Chief Justice as well as the SADC Tribunal?.
In response, the Ministry, which is legally required to set in motion the Supreme Court
ruling, informed Metals Australia that the Ministry ?will not proceed with the processing?
of the licences ?pending the outcome of the appeal?.
In the complaint of professional conduct letter to the Law Society, it is argued that
Kasuto?s letter to the minister is a misrepresentation of the ?correct legal position to the
[Minister of Mines and Energy Isak Katali] in an attempt and in bad faith to obstruct? the
final decision by the Supreme Court.
Meanwhile, the ministry has reversed its decision, and informed Metals Australia that
given a lack of appeal or review lodged by Kasuto on behalf of Amakutuwa, the ministry
is proceeding with the renewal of the Metals Australia mining licences, which was put on
hold for the past two years while litigation was continuing.
The Supreme Court has instructed Kasuto to urgently provide the Supreme Court with
the relevant legal basis on which he bases his ?notice of irregularity?.