Judge-President remarks on High Court Year Opening
Speech by the Hon. Mr Justice Petrus T. Damaseb
Judge-President on the occasion of the launching
of the High Court Legal Year 2010
18 January 2010
My Lords and My Ladies
The Honourable Ombudsman
The Learned Prosecutor General
The Learned President of the Law Society
The Learned President of the Society of Advocates
The Learned President of the Namibia Law Association
Distinguished legal practitioners and candidate legal practitioners
The staff of the High Court
Ladies and gentlemen
I am privileged once again to welcome you to yet another opening of the High Court Legal Year. I wish you all a prosperous and successful 2010, a year in which Africa hosts the world’s biggest show piece- the Football World Cup. 2009 was a very busy year for the judges, the registrar and her staff and, I am sure, the practitioners who had business before the Court. I wish to welcome to the Court the following judges who received permanent appointments at the end of last year: judges Liebenberg, Swanepoel, Shivute and Tommasi. I have assigned judges Liebenberg and Tommasi to the Oshakati Division of the High Court. Regrettably, the legislation necessary to activate the civil jurisdiction of the Oshakati Division of the High Court has not yet been passed. I trust that the Ministry of Justice will assign top priority to its passage this year. The two judges concerned will therefore deal exclusively with criminal matters in the meantime.
The government has also appointed two deputy registrars; one for Windhoek and the other for Oshakati. While welcoming them to the High Court, I want them to know that a lot is expected from them in assisting the registrar render an efficient service to the public and the Court. In particular, I want to see the bag log of untaxed bills of costs reduced appreciably.
I will now give you some statistics of the work done in 2009.
HIGH COURT, OSHAKATI (with two judges) DEALT WITH THE FOLLOWING MATTERS DURING THE PERIOD 23 FEBRUARY TO 30 NOVEMBER 2009:
|CRIMINAL REVIEW MATTERS FINALISED:||151|
|CRIMINAL APPEAL MATTERS HEARD:||50|
|CRIMINAL APPEAL MATTERS FINALISED:||10|
|CRIMINAL TRIAL MATTERS HEARD:||13|
|CRIMINAL TRIAL MATTERS FINALISED:||8|
HIGH COURT, WINDHOEK DEALT WITH THE FOLLOWING MATTERS SET DOWN DURING THE PERIOD 1 JANUARY TO 31 DECEMBER 2009.
At any given time there were not more than 12 judges at the High Court in Windhoek. You will see the increase in volume when you compare this year’s figures with last year’s.
|CRIMINAL REVIEW MATTERS:||4288|
|TOTAL REVIEWS FOR WINDHOEK
|CRIMINAL & CIVIL APPEAL MATTERS:||141|
|TOTAL APPEALS FOR WINDHOEK
|LEAVE TO APPEAL:||33|
|TOTAL CRIMINAL TRIALS FOR OSHAKATI
|CIVIL FIXED ROLL MATTERS:||63||90|
|CIVIL FLOATING ROLLS MATTERS:||345||208|
|DIVORCE FLOATING ROLL MATTERS:||70|
|PREVENTION OF ORGANISED CRIME MATTER:||1|
|JUDGMENTS DELIVERED DURING 2009||341||280|
THE REGISTRAR’S OFFICE AT THE HIGH COURT, WINDHOEK DEALT WITH THE FOLLOWING MATTERS THE PERIOD 1 JANUARY TO 31 DECEMBER 2009:
|LABOUR APPLICATIONS ISSUED:||85|
|CIVIL & CRIMINAL APPEALS REGISTERED:||110|
|LABOUR APPEALS REGISTERED:||97|
|WRITS OF EXECUTION:||2781||881|
|NEW CRIMINAL CASES:||49|
THE FOLLOWING FIGURES SHOWS SET DOWNS FOR THE 1ST TERM 2010:
|CRIMINAL TRIALS WINDHOEK:||13|
|CRIMINAL TRIALS OSHAKATI:||4|
|CIVIL FIXED TRIALS||17|
|CIVIL FLOATING ROLLS TRIALS:||113|
|DIVORCE FLOATING ROLL TRIALS:||62|
|CRIMINAL APPEALS WINDHOEK:||42|
|CRIMINAL APPEALS OSHAKATI:||14|
|LEAVE TO APPEAL:||13|
Ladies and gentlemen
At this forum last year, the president of the Law Society of Namibia stated that the Law Society had lodged complaints with the Judicial Service Commission (JSC) about long-outstanding judgments of the High Court. Against that backdrop, in 2009 the JSC took very clear decisions in respect of long-outstanding judgments of this Court, and set guidelines for the future. This is what it decided as far as the High Court is concerned:
- All judgments in respect of which complaints were received by the JSC should be delivered by the end of the first term of the High Court in 2010.
- All other reserved High Court judgments outstanding for longer than two years must be delivered no later than the end of the second term of this year.
- Going forward, all reserved judgments must be delivered in terms of the guidelines approved by the JSC. These guidelines have been made available to the Law Society for the benefit of the litigating public.
This JSC decision breaks new ground: Judges are now expected to work within a certain framework as far as delivery of judgments is concerned. Everyone involved must give the decision of the JSC a chance. It would be most unfortunate to behave as if it does not exist.
This year’s legal year marks the dawn of a new decade. What is my vision for the High Court for the decade ahead? We have to enhance access to Court. More and more people must be empowered to approach Court to have disputes resolved, with as little hassle as possible. As you all know, at the moment the High Court has no facility for wheel-chair access. That cannot be right. I have in fact received a powerful complaint from a disabled practitioner about this. I have assured him that I will bring his complaint to the attention of the authorities whose responsibility it is to attend to the Court’s infrastructure needs; and I have. While on this point, I must point out that more Court rooms and chambers for judges are necessary if we are to have any hope of decongesting the roll. More judges and more Court rooms will make it possible for cases to be set down in the shortest possible time. The delay in setting down especially criminal matters is unacceptable. As you would have read in the media, we are already setting down criminal trials only for 2011 and 2012. We are all alive to the need to remedy the situation and I do not want panic to set in at this stage. We are addressing the problem and a solution must be found.
Going forward, it is my expectation that the government will address the infrastructure-expansion needs of the High Court building in Windhoek as a matter of priority so that more permanent judges can be appointed to deal with the ever increasing work load at the High Court.
Another challenge that faces us in the decade ahead is ensuring that trials, once commenced, are finalized speedily. Just too many cases are becoming part-head and do get postponed over and over again without end in sight , chiefly because the judges are so few and conflicts arise ever so often in their diaries. Resolution of this problem will also require introducing specialist divisions of the Court to pave the way for the fast-tracking of commercial disputes. It is now accepted that international investors’ interest in a country is augmented if it boasts a system of credible and speedy dispute resolution. The JSC’s decision setting down clear guidelines for the delivery of reserved judgments will no doubt form an essential part of such a fast-tracking system. At the end of last year, the judges of the High Court proactively took a decision in principle for the creation of a Commercial division of the High Court. We will be taking steps to implement that decision.
Ladies and gentlemen
Since today marks the dawn of a new decade, it would be remiss of me if I did not reflect on the values that underpin our system of constitutional democracy- a system chosen by the great men and women who, close to 20 years ago, wrote out Constitution. As we enter the third decade since they enacted that seminal document, we owe it to them, some of them since deceased - and the future generations for whose patrimony they chiefly intended it - to ask ourselves if we remain true to that system of constitutional democracy.
Our Constitution makes it the province of our elected representatives to make the laws for our governance. It is left to the people, expressing their will through their votes, to elect a legislature and President to govern us. The laws passed by our elected leaders, and the actions of the government, should comply, generally with the Constitution and, in particular, the Bill of Rights contained in the Constitution. In their wisdom the founding mothers and fathers of the Constitution did not assign to themselves the power to decide, when there is doubt, whether the laws or the actions of the government comply with the Bill of Rights, or any part of the Constitution. That is understandable as the process of governance is, of necessity, politically and ideologically directed: It is folly to expect it to be otherwise. Governing and law-making involve making political choices based on one’s notion of social justice. In the process of making political choices, conflicts arise. Others in society will like such choices; others will not and will feel aggrieved. Against that backdrop, the most visible manifestation of a constitutional democracy is an independent and impartial judiciary whose task it is to adjudicate upon disputes that arise in our society. The legislature and the government of the day therefore have a solemn responsibility to support the judiciary in the discharge of its constitutional duty. As Abraham Lincoln prophetically put it:
“It is as much the duty of government to render prompt justice against itself in favour of citizens, as it is to administer the same, between private individuals.’’
When judges perform their judicial function they do so guided by their training, their integrity, impartiality and, above all, the oath they take to “defend and uphold the Constitution of the Republic of Namibia as the Supreme Law and will fearlessly administer justice to all persons without favour or prejudice and in accordance with the laws of the Republic of Namibia’’.
Judges strive always to decide cases that come before them based on previous judicial pronouncements where those exist, or as they see the law in a particular context. I do not know of a judge in this jurisdiction who shares the view that judges must take decisions to suit whatever is the most popular idea at the time, or in tandem with people’s preconceived notions of what a result should be on a particular set of facts. The expectation of a pliant judiciary is inimical to the judicial oath I have just read out. It saddens me to hear utterances which suggest that it lies in any one person or interest group's gift whether there will be an independent judiciary, or the limits of its independence. As judge Schutz of South Africa once put it: “A Judge is a Judge, not a functionary of convenience”.
I hardly need point out that Judges are not independent only when they invalidate the actions of officialdom, but also when they validate those actions. The State machinery is just as entitled to independent and impartial justice as any other person in our society. As judges we will lose the reason for our existence if we lose sight of that reality. I make these remarks because very often one I observes that our pronouncements are trumpeted as proof of our independence when Court decisions go against officialdom, but looked upon as suspect when decisions validate actions of government. The judiciary is not, and never must become, a mouthpiece for one particular sector of our society.
Those, ladies and gentlemen are the values as I see it that underpin the constitutional democracy endowed upon us and those to follow us, by the founders of the Constitution. As I said at the occasion of the Constitution Day organized by the Ombudsman of our country, Honorable Advocate John Walters:
“The Namibian Constitution has not yet been tested severely. There have been irritations along the way, but none so serious as to make the Constitution gasp for life-sustaining air. The country is largely peaceful and the institutions created under the Constitution have functioned reasonably well. Human history teaches us though that our Constitution will one day be subjected to a severe test that makes it gasp for life-sustaining air. Whether or not it overcomes that test depends on the strength of the institutions we create and the people who run them. Those institutions need to be strengthened so that if the real test one day happens, they can, collectively and separately, come to the defense of the Constitution.’’
I am convinced that all those who value our democracy accept that as judges we are human and are doing our best in resolving disputes. Being human we may make mistakes but malice or improper motive have no part in what we do. Adjudicating disputes is not an easy task. In the nature of things there will be a winner and a loser. It is a task that calls for public understanding and not scorn and ridicule.
With these remarks, I wish to once again thank you for taking off time to attend this opening ceremony; and I now declare the High Court Legal Year 2010 officially open.
I thank you.