Court finds Swapo guilty of ‘abuse of power’

Windhoek-Deputy Judge President Hosea Angula has said Swapo abused its powers when it withdrew Councillor Ester Ndatala Nghidimbwa as a councillor of Helao Nafidi Town Council last year.

I am satisfied that the applicant has made out a case that the first respondent misconstrued the ambit of its powers and that the decision to withdraw the applicant was made without a fair procedure being followed, the judge said.

I have therefore arrived at the conclusion that the applicant's contractual right was violated when she was withdrawn as a councillor without being afforded a right to be heard before the decision to withdraw her was made, Angula said in his judgment on an application by Nghidimbwa to set aside the decision by Swapo to withdraw her from Helao Nafidi Town Council.

Nghidimbwa took the party to court after a decision was made to withdraw her as councillor to make way for Lucia Nghililewanga, who was in front of her in the pecking order.

Nghidimbwa was seventh on the list, while Nghililewanga was second, but the latter was not sworn in as a councillor. Nghidimbwa has already scored a victory last year when she succeeded in obtaining interdict to prevent the town council from swearing in Nghililewanga.

The judge further said that Swapo violated the basic principles of natural justice by failing to grant Nghidimbwa a hearing before exercising its powers in terms of the Local Authorities Act. He said there was no evidence to show that the process through which Nghidimbwa was nominated for the councillor's position was done un-procedurally.

However, the judge said, there is no dispute that Nghidimbwa was duly nominated and that her name was placed on Swapo's list of candidates, which was sent to the Electoral Commission and gazetted. He noted that the nomination of Nghidimbwa might have been un-procedural in terms of Swapo's internal procedure and in particular how Nghililewanga was replaced by Nghidimbwa.

Further, the court found that there is no dispute that the replacement was done at a meeting duly convened by the regional coordinator and duly attended by all relevant officebearers of Swapo's leadership in Ohangwena Region.

He said the counsel for Nghidimbwa, Henry Shimutwikeni, made it clear from the onset that she came to court to pursue her contractual rights under the Namibian Constitution, the principle of legality, Swapo's constitution as supplemented by its code of conduct and tenets, and in pursuit of fairness.

Swapo was cited as the first respondent, Helao Nafidi as second respondent, Nangolo Mbumba as third respondent, Eliaser Nghipangelwa as fourth, Nghililewanga as fifth and the Electoral Commission as the sixth respondent.

Only Swapo, Mbumba and Nghililewanga opposed the application. They were ordered to pay the costs of the application jointly and severally, one paying the other to be absolved. Swapo was represented by Advocate Gerson Hinda SC on instructions of Dirk Conradie.

Source: New Era Newspaper Namibia