12 October 2016

Namibia: Four-Fold Fiasco Snares Namibia Judiciary

A trying month so far for justice in Namibia, with a four-fold fiasco in the courts that has left egg on the face of the judiciary as well as the country's top anti-corruption agency. Not to mention a judgment showing that the body responsible for disciplining members of the legal profession has more than a few problems of its own.

As far as the judiciary itself is concerned, Namibia is dealing with a festering problem: for the last 10 years and more certain judges have failed to deliver decisions within a time frame that is even vaguely 'reasonable'. Delays of 10 years are no longer unusual. The scandal was all the more difficult to fix because those most guilty are so senior in the judicial hierarchy - Chief Justice Peter Shivute was one of them - that everyone else has found it difficult to question them or hold them to account. Given the Chief Justice's own track record, for example, you can understand that it would have been very difficult, even inappropriate, for him to have questioned other judges whose decisions were unreasonably delayed. As the Chief Justice also chairs the Judicial Service Commission, responsible for judicial discipline, he might well also have been morally unable to handle complaints from the public about judicial delays.

He has now cleared his backlog but elements of that period still remain.

Over the last week some of the back story in relation to another judge who has delivered decisions late - or not at all - has emerged via two court decisions. The case of Minister of Finance v Merlus Seafood, heard originally in 2013 by Appeal Judges Gerhard Maritz, Sylvester Mainga and Simpson Mtambanengwe, was finally laid to rest with a decision by the latter two judges. Mainga, with Mtambanengwe concurring, wrote that the appeal had been heard by a full Bench of the Supreme Court in June 2013.

Maritz, who presided, 'volunteered to write the judgment'. 'In the intervening months of 2013 and the whole of 2014 when the judge took early retirement at the end of that year I did not hear or receive any reason from him why the judgment was delayed,' wrote Mainga.

'I understand from the Chief Justice who has on many occasions consulted with the other members of this court who sat with Maritz JA on this matter ... that he (the Chief Justice) has made a number of approaches to the judge before and after he went on retirement on the outstanding judgments, but has only received unfulfilled promises.

'In fact, I understand that it was a condition of Maritz JA's retirement that he should produce two judgments every month in 2015, but that agreement also came to naught.

'During March this year the Chief Justice, concerned about the outstanding judgment, once again consulted with all the members of this court who sat with Maritz JA in matters allocated to the judge and it was resolved that the other members would have to inherit all the matters which were allocated to the judge for the purpose of preparing draft judgment.

'This is how this judgment, among others, has ended up with me.'

A similar preface was added to another judgment delivered this week - the case of Vaatz v Municipal Council of Windhoek, originally heard by the same three judges as in the Merlus case above.

This time Mtambanengwe wrote the embarrassed apology: 'This appeal was heard by three judges of the Supreme Court of Namibia (Maritz JA presiding) on 21 June 2013. The presiding judge undertook to write this judgment. To date we have not received a draft judgment ... nor has there been any indication that a judgment has been prepared or is under way.'

Mtambanengwe said he and his colleague Mainga understood from the Chief Justice that 'after several reminders to the presiding judge', there was still no indication that any judgment was being prepared. In view of the long delay the Chief Justice had asked Mtambanengwe to prepare a judgment for comment by Mainga and it was that decision that was handed down this week.

But it wasn't just the judges who were in trouble about delays. In Makando v Disciplinary Committee for Legal Practitioners there was more.

During 2008 Slysken Makando was found guilty on a number of grounds related to unprofessional or dishonourable conduct. But the legal steps following this guilty finding have been dogged by severe delays. Leaving aside all the other issues in the case, Makando lodged his notice of appeal late: while it should have been filed with the appeal court in mid-November 2011, it was not received until the end of March 2016. He also lodged the record more than a year late.

The disciplinary committee lodged its heads of argument late, and its application for condonation of the lateness was also brought late. In its judgment the Appeal Court found the disciplinary committee's conduct 'woeful', adding that it was not the first time the court had criticised the way it conducted litigation on matters of discipline.

'Once again this court must chide the disciplinary committee for its failure to comply with the time limits ... It is not acceptable for an institution charged with the responsibility of regulating the conduct of legal practitioners itself to fail to observe the rules.'

The Law Society was also criticised for failing to observe the time limits, and the court noted that its conduct 'fell far short' of the standards required.

Could things get any worse? Indeed they did, in the matter of Hailulu against the Anti-Corruption Commission.

Vinson Hailulu, former chief executive officer of Namibia's National Housing Enterprise, had appealed against a decision of the High Court, related to his arrest in 2008 by officials of the commission.

Ultimately Hailulu did not succeed in his appeal but the three Supreme Court judges who heard the case said this outcome 'should not obscure (a) fact that was cause for grave concern', namely that the High Court found when the commission arrested Hailulu it was not acting impartially but rather to advance the cause of union members. 'Such conduct is deplorable and (Hailulu) is entitled to feel aggrieved.'

'The Commission is established as an independent and impartial institution to prevent and punish corruption.' It was an institution of national importance whose goal was 'central to the well-being' of Namibia's democracy. Its conduct ought to be beyond reproach, but it would be unable to reach its goal if its reputation was tarnished, as in this case, 'by unlawful conduct'. The appeal judges said it was possible that Hailulu would sue the commission, but that even if he were to win, it would not repair the commission's reputation. This would only happen if its officials were able to show that they always acted in a way that was 'independent, impartial and lawful'.

Four blows in just one week to the reputation of key elements of Namibia's democracy: you have to ask whether it's a one-off bad week or indications of a collapse.

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