No proper hearing given to legal aid lawyer, judge finds

Justice minister Yvonne Dausab did not give legal aid lawyer Eva Maria Phillemon a proper hearing before deciding, in the wake of remarks Phillemon made about Damara people, to withdraw her appointment as legal aid counsel in April last year, a Windhoek High Court judge has decided.

The decision that Dausab made about Phillemon’s status as legal aid counsel prejudiced Phillemon and was made without first giving her an opportunity to be heard, judge Orben Sibeya found in a judgement delivered on Friday.

Phillemon’s career of choice was abruptly paused by Dausab’s decision, Sibeya said in his judgement.

He said the decision had a severe impact on Phillemon and because of that she was entitled to be given an opportunity to make representations to the minister before the decision could be taken.

Sibeya reviewed and set aside Dausab’s decision to withdraw Phillemon’s appointment as legal aid counsel and ordered that the minister and director of legal aid, whom Phillemon sued after her appointment was withdrawn, should pay her legal costs in the case she lodged in the High Court,

Dausab withdrew the appointment on 4 April, after remarks that Phillemon had made on social media two days earlier, in an apparent attempt to compliment the Damara community, backfired on her when they were perceived as insulting instead and prompted public outcry.

In the remarks, Phillemon commented on photographs of people in traditional Damara dresses and stated: “For once, the Damara people are doing something beautiful, cultural identity.”

She added: “I love this!”

Then, however, she continued: “This overshadow that violence image of breaking bottles, knife stabbing, insults, no culture identity that I only know of them [sic].”

Dausab described Phillemon’s remarks as an “inflammatory tribal tweet” in an affidavit filed at the High Court in response to Phillemon’s application to have the withdrawal of her appointment reviewed and set aside.

After Phillemon took legal action against her and legal aid director Patience Daringo, Dausab also claimed that Phillemon had absented herself from official duties for more than 30 days after the public outcry about her remarks and that as a result she was deemed to have been discharged from the public service.

Sibeya was not persuaded by this claim, though.

He said there was evidence showing that Phillemon provided sick leave certificates to her immediate supervisor for the period she was absent from work.

“In my view, she cannot be faulted for utilising leave days that she is entitled to according to law,” Sibeya remarked.

He was also not swayed by Dausab’s claim that Phillemon’s initial appointment as legal aid counsel in September 2020 had been for a period of 12 months only.

It is clear that Phillemon’s appointment letter was silent on the duration of her appointment as legal aid counsel, Sibeya noted.

Also noting that Phillemon continued to work as legal aid counsel for more than a year and a half after the end of the supposed 12-month period following her appointment, he said it was reasonable to take it that her employer tacitly agreed on her continued employment and appointment as legal aid counsel.

On the issue of Phillemon’s right to be heard before the decision to withdraw her appointment was taken, Sibeya recorded that Dausab relied on Daringo to give Phillemon a hearing and that Daringo did not personally speak to Phillemon about the withdrawal of her appointment before that decision was taken.

At the very least, Daringo should have informed Phillemon that the minister considered withdrawing her appointment as legal aid counsel and given her an opportunity to give reasons why Dausab should not do so, but that did not happen, Sibeya said.

Phillemon was represented by lawyer Sisa Namandje.

The minister and legal aid director were represented by Patrick Kauta.