SPEECH BY THE PRESIDENT OF THE LAW SOCIETY OF NAMIBIA, ADV D.F. SMALL, ON THE OCCASION OF THE OFFICIAL OPENING OF THE HIGH COURT LEGAL YEAR – 16 JANUARY 2012
YOUR LORDSHIP MR. JUSTICE DAMASEB, JUDGE PRESIDENT OF THE HIGH COURT OF NAMIBIA, MY LORDS AND LADIES
THE HONOURABLE OMBUDSMAN
THE HONOURABLE PROSECUTOR GENERAL OF THE REPUBLIC OF NAMIBIA
THE PRESIDENT OF THE SOCIETY OF ADVOCATES
THE PRESIDENT OF THE NAMIBIA LAW ASSOCIATION
MEMBERS OF THE PROFESSION
CANDIDATE LEGAL PRACTITIONERS
THE REGISTRAR AND STAFF OF THE HIGH COURT
LADIES AND GENTLEMEN
As had been said last year during this occasion, the High Court Legal Year Opening has become a highlight on our professional calendars, and created platform those involved to voice their concerns, challenges and achievements. And as was also said by my predecessor, it has the added bonus to greet you all after a well deserved rest period and to wish everybody a year full of success, joy and prosperity.
I have decided to address one issue at this occasion. It is nothing new, and has also been raised two years ago by a previous president of the Law Society of Namibia.
The issue I want to raise is the one of OUTSTANDING JUDGEMENTS.
I can do no better than quoting what Advocate Geier stated on that occasion: “The issue of outstanding judgments has featured as an important Rule of Law topic in the last couple of years at this occasion and as this issue has not yet been entirely resolved I am duty-bound, as my predecessors were, to address this issue also on this occasion.”
Unfortunately, when one addresses an issue like this one, I’m reminded of the saying that states: “Success has many fathers, but failure is an orphan.”
We all know that the independence of the judiciary is recognised in all democracies as a sine qua non for the promotion of a culture of democracy and human rights. Consequently, the Namibian Constitution in Articles 78(2) and (3), the guarantees that the courts –… shall be independent and subject only to the Constitution and the law[,] and further that – [n]o member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity, and effectiveness, subject to the terms of this Constitution or any other law.
I believe that when one considers just how far the independence of the courts go, it is appropriate to consider the well know principle that us lawyers know as Quis costodiet ipsos custodes-who watches the watchmen-who will protect us from our protectors?
The doctrine of the separation of powers recognises the existence of three organs of state: the executive, the legislature, and the judiciary. The doctrine however also recognises the fact that, in order to guarantee and protect the liberties of the individuals and to prevent dictatorship and absolutism, mechanisms need to be established that are capable of putting constitutional and legal restraints on, not only the powers of government, but also on other organs of state.
I believe it is important to realize that judicial independence is by no means unfettered: it is fettered by the Constitution and the law. Judges are accountable to the Judicial Service Commission in the performance of their judicial functions, and are further subject to the rules relating to professional ethics, discipline and dismissal as stipulated in the Constitution and other law.
ANIL RAI V. STATE OF BIHAR  RD-SC 367 (6 August 2001) …
The Apex Court made an exhortation in 1976 through a judgment which is reported as RC Sharma vs. UOI [1976(3) SCC 574] for expediting delivery of judgments. I too wish to repeat those words as follows:
“Nevertheless an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments.” Quarter of a century has elapsed thereafter but the situation, instead of improving has only worsened. We understand that many cases remain in area of “judgment reserved” for long periods. It is heartening that most of the judges of the High Courts are discharging their duties by expeditiously pronouncing judgments. But it is disheartening that a handful of few are unmindful of their obligation and the oath of office they have solemnly taken as they cause such inordinate delay in pronouncing judgments.
“In a country like ours where people consider the judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eyebrows, some-times genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the rule of law. For the fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come up to the expectation of the society of ensuring speedy, untainted and unpolluted justice.”
I conclude with a final quote from the same case: “Justice should not only be done, but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that.”
I thank you