SITTING ON JUDGMENTS
Justice delayed is justice denied — and now the country’s top judges want to have delinquents named and shamed
Anasty little secret has plagued the legal profession in Namibia for years. Few were willing to talk about it, but the evidence was there if you cared to look: several very senior judges were not doing their work properly. After hearing a case, these judges would reserve judgment and then years would pass — up to 10 or more in some matters — before they eventually delivered a decision.
Reporting on the problem was complicated. No-one wanted to comment. The chief justice was one of the culprits, and the law society and the commission that interviews, disciplines and recommends candidates for appointment — both of which would normally have something to say about such dereliction of duty and its effect on the administration of justice — preferred to play it safe and keep quiet.
Things have started to improve, but the legacy has been unfortunate for litigants as well as for the profession — not to mention public confidence.
In SA, judges are, at least in theory, kept on a far tighter rein. The judicial service commission has guidelines for how soon decisions should be given, and candidates are often questioned about how long they take to deliver judgments.
Now a new draft report, commissioned by the heads of court, will add pressure for judges to deliver decisions quickly. These top judges want to find a way for the judiciary to monitor and report on its own “progress” as part of judicial accountability. In the past, the minister of justice would give parliament a report summarising relevant judicial information, such as the numbers of judges in each division. But with the constitutional emphasis on judicial independence, it is now seen as more appropriate for judges to do so themselves.
The report drafters say that one way of measuring judicial “improvement” is to have statistics on how soon judgments are delivered and whether the number of outstanding decisions is decreasing.
To encourage compliance, the report suggests that each court post a list of decisions still awaited and the date the matters were heard. This will help with “improving court performance”, it says.
It turns out that at least one high court — Cape Town — already has such a list and the most recent tally was finalised and circulated there on June 29.
Given that the head of this court, Judge President John Hlophe, is the chief drafter of the report with all its various strategies for ensuring speedy delivery of decisions, it came as a surprise to find that in his division there are no fewer than 14 judgments, involving seven judges, outstanding from last year.
Repeat offenders
Two names stand out. The first is that of Judge Siraj Desai, third-most senior judge in the division after the judge president and the deputy. He still has four decisions due from 2016, one each from April and June and two from November. A fifth judgment on the list, due by him, dates from February this year.
Another with four decisions from 2016 still to be delivered is acting Judge Nolita Kose. She, too, has a fifth pending judgment from the first three months of this year.
Altogether, 17 judgments from matters heard in the first quarter have not yet been delivered.
It is not clear from the names what the cases are about, but some seem to be important, if not urgent — such as Kasonga vs the Chairperson of the Standing Committee for Refugee Affairs. Whatever the issues involved, however, it is clearly unacceptable for a judgment to be outstanding well over a year after the matter was argued.
A new draft report will add pressure for judges to deliver decisions quickly