Namibia: Supreme Court Affirms Public's Right to Know

COURT records must be kept open and accessible to the public and the media, the Supreme Court has stated in a judgement delivered yesterday.

The country's top court reaffirmed the right of the public and the media to have access to court proceedings and case records in a judgement about a High Court case that was kept under wraps after the parties involved in the matter reached a settlement agreement which they wanted to be kept confidential.

An order that the settlement in the matter was confidential, and which resulted in the entire case record being kept inaccessible to the public on the court's electronic records system, was in conflict with the Constitution and the High Court Act's stipulation that proceedings in the High Court should take place in open court, appeal judge Dave Smuts said in the Supreme Court's judgement.

He further said that when parties in a case want to keep the contents of a settlement agreement secret, they cannot enlist the authority of the court to do so through a court order.

They may rather consider having the case removed from the court roll and enter into a confidential settlement agreement, which then would not be able to be enforced as a court order, though, Smuts said.

Chief justice Peter Shivute and acting judge of appeal Theo Frank agreed with Smuts' judgement.

The judgement was delivered in a review matter which the High Court's judge president referred to the chief justice after a journalist enquired in February last year why a case record on the court's eJustice system had been marked 'in camera', and could not be accessed by the media or the public.

In the case in question, three inmates sued Namibia's prison authorities over assaults which they claimed correctional officers had perpetrated on them.

The matter was settled in April 2019, when the minister of safety and security and the prison authorities agreed to pay each plaintiff N$100 000.

The settlement agreement was made an order of court and, on a request from the parties, ordered to be kept confidential.


The Constitution stipulates in its article 12 that court proceedings should take place in public, but that the press or the public may be excluded from a trial or part of it "for reasons of morals, the public order or national security, as is necessary in a democratic society".

"The open court principle has long been recognised as an inherent component of the rule of law, which is a foundational principle of our Constitution," Smuts noted.

He added: "Public access to courts, now guaranteed by the Constitution, is thus not only an essential component of the right to a fair trial, but ensures that [... ] justice is not only done but seen to be done."

As has been stated by the Supreme Court of Canada, an open court is more likely to be an independent court, the judge continued.

"The openness of courts is central to their legitimacy and their independence and thus to the Constitution," Smuts stated.

The case in which the three inmates sued the prison authorities did not remotely relate to the exceptions listed in the Constitution for court proceedings not to be held in public, Smuts said.

He further stated that the principle of accountability, which he said is also a foundational principle of the Constitution, "would emphatically preclude any basis for proceedings and court orders of this nature being made secret by a court at the request of the parties".

Smuts added: "Part and parcel of the principle of open court proceedings entrenched in article 12 [of the Constitution] is the right of the public to know and have access to court proceedings and the concomitant right of the media to have access to the information in question."

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