This appeared in the South African paper, The Star.... does not bode well for our legal system....
I have often bemoaned the fact that 90% of the Goverment and institutions move at a slow pace , placing red tape in the way and having incompetent folk in postitions that are critical to fostering business investment.....
Wish somebody in the gov had the balls to make the change.....
"Judge takes eight years to consider applications for leave to appeal
THERE it stands, in black and white. A permanent fixture in all future law reports: the chief justice of Namibia delivers a decision on March 16, 2012, about a matter he heard on November 3, 2003.
It's part of a growing pattern from which the public may well ask whether Chief Justice Peter Shivute is fit to hold office.
With admirable courage, especially given the rank of one chief culprit, the judge president of Namibia's high court, Petrus Damaseb, has bemoaned the nondelivery of decisions by several fellow judges.
Speaking in January, Damaseb said judges failing to hand down decisions within a reasonable time "seriously erodes confidence in the judiciary".
According to Damaseb, as at mid-january, there were two outstanding decisions by Namibian judges which, even if they were to be delivered tomorrow, would have taken at least 10 years from the date the cases were originally argued.
There were also several decisions involving a delay of more than nine years. The latest decision by Shivute is one of the nineyear cases; the clock still ticks on the others. A few weeks ago, Shivute delivered a decision well over eight years in the completing and which, like the most recent, related to an application for leave to appeal in a criminal matter.
This time it was brought by Herold Mutjavikua, convicted of stealing a car and sent to jail for five years. In this case, as with the one finalised last month, the party wanting to appeal was late in filing the relevant papers.
Sentenced in October 2002, Mutjavikua filed initial appeal papers but the exact date on which they were lodged has been lost in the intervening years. It was, however, obviously outside the set time limit because he is on record as having asked for condonation of his late appeal on May 12, 2003.
This is, as Shivute notes, "nearly seven months after conviction and sentence". Mutjavikua said that because he was in jail he found it difficult to get the papers ready within the stipulated deadline, particularly because of the delay in getting a transcript of the court record.
Shivute rejected these excuses, saying "no explanation has been offered" why the condonation application was late. Shivute then considered the merits of the appeal: if Mutjavikua were allowed to appeal what were his chances of success? From his discussion of the evidence and the finding of the trial court, Shivute makes it clear that there is no prospect of another court overturning the conviction.
As for the sentence, that could be overturned only if the appeal court were to find that the trial court misdirected itself; if there had been a material irregularity; if the sentencing court failed to take into account material facts or overemphasised others; if the sentence was "startlingly inappropriate"; or if there was a striking disparity between the sentence imposed and that which the appeal court would have imposed.
"I am of the opinion that none of those circumstances is present here," Shivute wrote, making it clear that the matter involved no difficult issues and leading a reader to ask why, if it was so straightforward, the decision wasn't delivered immediately so that the prisoner knew where he stood.
Before making his formal ruling, the chief justice had to deal with a problem that had arisen in the intervening years. Shivute had heard the case with an acting judge but he had "unfortunately passed on before the judgment could be finalised".
He was referring to John Oliver Manyarara, a former journalist who later became a lawyer before being appointed as a judge of Zimbabwe's high court and its supreme court, and later taking an acting appointment in Namibia. Manyarara died in May 2010.
Explaining the resulting legal position, Shivute said the matter would have had to be re-argued unless the parties agreed unconditionally and in writing to accept the decision of the remaining judge. This the parties had agreed to do, he said. What Shivute doesn't write of course, is that Mutjavikua's term of imprisonment was due to expire in 2007. So by the time of Manyarara's death in May 2010, Mutjavikua should already have been out of jail for three years. The outcome of Shivute's decision could thus have made no difference to either side.
I can only imagine the rolling of eyes with which the parties agreed to accept this belated judgment rather than insisting that the matter start all over again."