REPORT ON THE STAKEHOLDERS CONFERENCE Court/Media/Publications/Report 2 Acces T… · report on the stakeholders‟ conference: promoting access to justice in the high court of namibia:

REPORT ON THE STAKEHOLDERS CONFERENCE PROMOTING ACCESS TO JUSTICE IN THE HIGH COURT OF NAMIBIA: THE CASE FOR JUDICIAL CASE MANAGEMENT, HELD AT MIDGARD COUNTRY ESTATE, 8-9 OCTOBER 2010

2ND REPORT

2010

THE HON. MR JUSTICE PETRUS DAMASEB

11 OCTOBER 2010

REPORT ON THE STAKEHOLDERS‟ CONFERENCE:

PROMOTING ACCESS TO JUSTICE IN THE HIGH COURT OF NAMIBIA: THE CASE FOR JUDICIAL CASE MANAGEMENT Page 2

REPORT ON THE STAKEHOLDERS CONFERENCE

PROMOTING ACCESS TO JUSTICE IN THE HIGH COURT: SECOND REPORT,

THE CASE FOR JUDICIAL CASE MANAGEMENT

8-9 October 2010, Midgard Country Estate

www.superiorcourts.org.na



TABLE OF CONTENTS

Prelude ....................................................................................................................... 5

PART 1 ....................................................................................................................... 6

INTRODUCTION .................................................................................................... 6

CONFERENCE PROGRAMME ............................................................................ 10

DISCUSSION GROUPS AND MANDATES ......................................................... 12

PART 2 ..................................................................................................................... 13

THE OPENING ADDRESS: HON. MR. JUSTICE PETER SHIVUTE, CHIEF

JUSTICE OF THE REPUBLIC OF NAMIBIA ........................................................ 13

REMARKS BY THE HON. MR. JUSTICE PETRUS T. DAMASEB, JUDGE

PRESIDENT OF THE HIGH COURT OF NAMIBIA .............................................. 17

PART 3: PRESENTATIONS IN PLENARY .............................................................. 20

MS. ELSIE SCHICKERLING, THE CHIEF REGISTAR OF THE SUPREME AND

HIGH COURTS OF NAMIBIA: WHY THIS WORKSHOP? ................................... 20

MS PEPSI PHUTO (FROM THE BOTSWANA LAW SOCIETY), JUDICIAL CASE

MANAGEMENT IN BOTSWANA: OPPORTUNITIES AND CHALLENGES ......... 32

CRIMSONLOGIC: BUILDING AN ELECTRONIC JUDICIARY ............................. 40

PART 4 ..................................................................................................................... 68

HOW DO WE MOVE FROM A LITIGANT DRIVEN SYSTEM TO ONE DRIVEN BY

THE COURT? ....................................................................................................... 68

GROUP 1: ......................................................................................................... 68

GROUP 2: ......................................................................................................... 73

GROUP 3: ......................................................................................................... 76

PART 5 ..................................................................................................................... 81

HOW DO WE APPLY JUDICIAL CASE MANAGEMENT PRINCIPLES IN THE

CRIMINAL CONTEXT? ........................................................................................ 81

GROUP 4 .......................................................................................................... 81

GROUP 5 .......................................................................................................... 87

PART 6 ..................................................................................................................... 95



ALTERNATIVE DISPUTE RESOLUTION AS AN INTEGRAL PART OF JUDICIAL

CASE MANAGEMENT ......................................................................................... 95

GROUP 6 .......................................................................................................... 95

PART 7 ................................................................................................................... 104

INFORMATION TECHNOLOGY......................................................................... 104

GROUP 7: ....................................................................................................... 104

PART 8 ................................................................................................................... 109

PLENARY: FOCUSSED DISCUSSION .............................................................. 109

ISSUES ON WHICH CONSENSUS HAS BEEN REACHED .......................... 109

ISSUES WHICH NEED TO BE FURTHER DEBATED/DISCUSSIONS .......... 112

DRAFTING TASK TEAM VOLUNTEERS: .......................................................... 119

LEVERAGING IT BYCRIMSONLOGIC: SCOPING STUDY PRESENTATION –

13TH OCTOBER 2010 ......................................................................................... 120

PART 9 ................................................................................................................... 130

THE LEGAL PRACTITIONER‟S DUTIES IN JCM .............................................. 130

PART 10 ................................................................................................................. 137

ACKNOWLEDGEMENTS ................................................................................... 137

PARTICIPANTS.................................................................................................. 137

SUPPORT STAFF .............................................................................................. 140



Prelude

„‟The right of access to court does not… entitle litigants to demand the best possible law

enforcement process regardless of cost, any more than they are entitled to demand

unlimited health support or boundless educational facilities.

The only reasonable demand that members of the community can make with respect to any

public service is that its funding should be commensurate with available public resources

and with the importance of the benefits that it has to deliver. In addition, members of the

community have a right to expect that, within available resources, the service should provide

adequate benefits to the community.

The test of whether a given public service is adequate is fairly straightforward. A public

service is adequate if it is effective, efficient and fair. A service is effective if it meets the

reasonable expectations of the community, be they appropriate health services, a

satisfactory education system or, indeed, adequate court assistance for the enforcement of

rights. A service is efficient if its resources are used to maximise benefit output and are not

unnecessarily wasted on unproductive activities. A service is fair if the resources available to

it are justly distributed between those entitled to the service, whether their needs are present

or merely contingent.

The requirements of effectiveness, efficiency and fairness are easily translated to the

provision of court dispute resolution. Court adjudication is effective if it determines claims

with reasonable accuracy, within a reasonable time, and with proportionate investment of

litigant and public resources. Court adjudication is efficient if public and litigant resources are

employed to maximize effectiveness and are not wasted unnecessarily. Lastly, court

adjudication is fair if the system ensures that its resources and facilities are justly distributed

between all litigants seeking court help and between present and future litigants. Dealing

with cases justly includes the following: saving expense; dealing with the case in ways which

are proportionate to the amount of money involved to the importance of the case and the

complexity of the issues; ensuring that the case is dealt with expeditiously; allotting to the

case an appropriate share of the court‟s resources, while taking into account the need to

allot resources to other cases. These aims of judicial case management clearly reflect the

requirements that adjudication should provide an effective protection of rights (i.e.

reasonable determination of the issues, at proportionate cost and in a reasonable amount of

time), that it should be efficiently delivered (i.e. avoiding waste of court and party resources

and that court resources should be fairly available to all who may require court assistance. „‟

Civil Litigation: a Public Service for the Enforcement of Civil Rights, Adrian Zuckerman, Fellow of

University College, Oxford , Civil Justice Quarterly (C.J.Q., ) VOL 26, JANUARY, WEET& MAXWELL 2007 at p3



PART 1

INTRODUCTION

(a) The Report: Promoting Access To Justice In the High Court of Namibia: First

Report: The Case for Judicial Case Management was published at the end of

August this year1. The High Court then convened a stakeholders conference

at Midgard Country Estate to discuss the recommendations contained in the

Report and to chart the way forward. The response to our invitation was

phenomenal2. I was personally encouraged by the positive response of those

who will have to work in the new dispensation we are planning to introduce.

There were more people wanting to participate than there were rooms

available to accommodate all those interested. The depth of support for the

reforms advocated in the Report was all too- apparent during the deliberations

at Midgard. Midgard has left me with two abiding impressions: firstly that in

the interest of the greater good, people, if given full information about the

bigger picture, are not necessarily put off by change. Secondly, that they can

be counted on to be part of the solution. Midgard has filled me with optimism

for the future. It has sent a clear message that although JCM is not

autochthonous to the adversarial litigant-driven litigation process of our

Roman Dutch tradition, its reception in our jurisprudence will serve only to

strengthen rather than weaken our legal system. The Midgard consensus, as I

understand it, is to keep the good in our old Rules and lace it with the good

practices associated with judicial case management. That much is apparent

from the Group reports and the final consensus document. I am grateful to the

Honourable Chief Justice, Peter Shivute, for the encouragement and support

he has given me in driving forward the transition to JCM. As he said to us at

Midgard in his opening address:

„‟We need to be flexible in our approach and develop a strong vision to

take bold forward-looking initiatives that are needed to bring real benefits to

our people at the judicial level. It is my firm conviction that judicial reform is

the way to go and there can be no going back on this resolve.‟‟

(b) The purpose of the present publication is to put together in one document the

deliberations of the Midgard stakeholders‟ conference and to serve as a guide

to action. The need for the publication is even greater as not all practitioners

attended the conference. Doubtless they would want to know what was

discussed at Midgard and what the way forward is. The Table of Contents

1 Available on line at www.superiorcourts.org.na. High Court, Registrar’s Office.

2 A total of 77 participants took part in the conference

http://www.superiorcourts.org.na/



guides the reader through the Report: It opens with the ceremonial part

followed by the presentations of the Chief Registrar of the High and Supreme

Courts ; Ms Pepsi Phuto of the Botswana Bar and by the Singapore IT

specialists, CrimsonLogic3. It is followed by the outcomes of the Group

discussions, ending with the Consensus emanating from plenary. I have

added annotations (footnotes) in order to clarify issues in the context of the

discussion that took place in the break-away groups and the floor of the

conference in plenary.

(c) The Midgard Consensus can be summed up as follows:

1 We should exercise from our Rules and practice those procedural steps that

have the potential to be abused to achieve, or which readily lend

themselves to, delay;

2 Rule 18 of the Court Rules needs to be radically reformed. Pleadings should

be very detailed and should include evidence and must be accompanied

by the essential documents that support the claim and defence;

3 Through case management conferences judges must retain control over the

litigation process;

4 Parties must exchange evidence and discovery very early in the process;

5 Experts must no longer be seen as „‟hired guns‟‟ and they must be required to

reach consensus and to fairly narrow areas of dispute in a way that is

helpful to the just adjudication of the disputes in the case;

6 Litigants must be encouraged and be afforded the opportunity should they

wish to explore alternative dispute resolution avenues before and after

commencement of litigation in the Courts;

7 For us to successfully implement JCM in criminal cases the climate of mistrust

between the Criminal Bar and the Prosecutor General‟s Office has to be

removed;

8 In the application of JCM in criminal cases, the accused‟s right to a fair trial,

the right to remain silent and the right not to incriminate himself/ herself

should not be compromised;

9 Aspirant legal practitioners must be taught the principles and techniques of

JCM to prepare them for a life in practice.4;

3 Based on the Midgard deliberations, CrimsonLogic undertook a scoping study of stakeholder needs and

expectations and presented on 13 October 2010 the results of that study. It is that scoping study, which sets out the future course of direction that is included in this Report. 4 The syllabi of UNAM and the JTC must include JCM.



10 Information Technology is going to assume a central role in the application of

JCM as the ultimate objective is to move towards e-filing of Court

processes. Both judges and practitioners must therefore become IT

savvy.5

(d) JCM requires a paradigm shift in mindset by all of us involved in the process:

the public, the lawyers and the judges.

LITIGANTS AND THE PRACTITIONER6

1 The absence of prejudice to the opponent is no longer the dominant factor in

the exercise of the Court‟s discretion whether or not non-compliance with

Rules and Court directions is to be countenanced. The Court is also not

bound by agreements between litigants (and their practitioners) to indulge

each other. There is a greater objective to be achieved in the entire litigation

process: to move on cases speedily, at minimum cost and conscious of the

needs of other litigants, present and contingent. The effect of parties‟ actions

in litigation on the overall management of the Court roll is a very important

consideration in JCM. There is a duty cast on litigants and their legal

practitioners to cooperate with the Court to speed up Court proceedings.

Practitioners will realize that in the new dispensation they will have to prepare

well and thoroughly at the start of the process. Detailed instructions have to

be taken from clients and an early judgment made if the case is viable.

Prospective litigants must be advised that there would be low tolerance from

the Court for evasiveness and tactical pleading. Litigants must very early in

the process be advised that it is important to explore inexpensive means of

resolving the dispute through appropriate alternative dispute resolution.

Generally, the parties and their legal advisors must seek to avoid methods in

litigation that are wasteful and not aimed at getting to the early determination

of the actual dispute.

THE COURT

2 The common thread that runs through the discussions on JCM is the need for

uniformity in the application of the Rules by the judges. It cannot be stressed

strongly enough that the entire effort of speeding up trials will come to naught

5 The starting point must be for the LSN to obligate all members to acquire a decent computer and to attain

internet interactivity. 6 I have chosen to reprint in full in Part Ten of this report a speech by the Honourable Mr. Justice of Australia

dealing with the duties of a legal practitioner in a JCM environment. I urge all practitioners to read it carefully and generally to start researching JCM jurisprudence.



if judges delay rulings on preliminary objections and, at the end, judgments

and make parties wait for long periods for reserved judgments. Judges are

also expected to appreciate that practitioners are bound to be involved in so

many case management conferences and status hearings at the same time

when JCM is rolled out. Coordination would thus be required at the level of the

judiciary to avoid practitioners being required to be before several judges at

the same time. Judges are overworked as it is, but the burden will even

increase under JCM. We are as judges going to assume a role we are not

accustomed to: managers of our own affairs, Court time and support staff. In

the latter respect, judges will have to assist their support staff to understand

the system and what is expected of them. Another caution that needs to be

expressed is that although no longer passive role-players, JCM does not give

judges the licence to descend into the arena. The adversarial essence of the

trial process is not lost with JCM. Judges must remain neutral and impartial

adjudicators of fact and law. Judges must, in their management of the cases

assigned to them, eschew conduct that gives the appearance of bias on their

part.

Petrus T. Damaseb

Judge President

Chambers

Windhoek



CONFERENCE PROGRAMME

8 OCTOBER 2010

08:00 – 08:15 National Anthem

AU Anthem

Welcoming Ms Elsie Schickerling

08:15 – 08:45 Opening Address Shivute, CJ

08:45 – 9:00 Break for CJ’s Departure

9:00 – 9:15 Why the need of this Workshop Ms Elsie Schickerling

9:15 – 9:45 Sketching the Scene Damaseb, JP

9:45 – 10:15 Tea Break

10:15 – 11:15 Presentation by Case Management Jurisdiction:

Botswana Ms Pepsi Phuto

11:15 – 12:00 Presentation by Crimson Logic Mr. Mike Yap

12;00 – 13:00 Open Discussion Facilitator: Damaseb, JP

13:00 – 14:00 Lunch

14:00 – 15:00 Open Discussion Facilitator: Damaseb, JP

15:00 – 15:30 Tea Break

15:30 – 17:00 Group Discussion Groups as indicated, chaired by

individuals identified

19:00 Judge President’s Dinner

9 OCTOBER 2010

08:00 – 10:00 Group Discussion continue from 8 October Groups as indicated, chaired by

individuals identified

10:00 – 10:30 Tea break

10:30 – 10:50 Feed Back: ADR Mr. Frank Kopplinger

10:50 – 11:10 Feed Back: Civil Reform Group 1 Adv R Heathcote

11:10 – 11:30 Feed Back: Civil Reform Group 2 Ms Natasha Bassingswaighte

11:30 – 11:50 Feed Back: Civil Reform Group 3 Mr. Hosea Angula



11:50 – 13:00 Focused discussion Facilitator: Damaseb, JP

13:00 – 14:00 Lunch

14:00 – 14:20 Feed Back: Criminal Group 1 Ms Patience Daringo

14:20 – 14:40 Feed Back: Criminal Group 2 Adv Gerson Hinda

14:40 – 15:15 Focused Discussion Facilitator: Damaseb, JP

15:15 – 15:45 Tea Break

15:45 – 16:05 Feed Back: Computerization Ms Eileen Rakow

16:05 – 16:35 Focused Discussion Facilitator: Damaseb, JP

16:35 – 16:50 Wrap Up and announcing key outcomes of workshop Damaseb, JP

16:50 – 17:00 Closing Ms Elsie Schickerling

AU Anthem

National Anthem

17:00 Departure



DISCUSSION GROUPS AND MANDATES

CONVENER DAMASEB, JP

SUPPORT SUPERVISOR LOUIS KARSTEN NELI TJAHIKIKA JOSEPH LIBANA

GROUP SECRETARY / TYPIST LORRAINE IZAAKS & VANESSA BASSON DRIMA RISURO AUNE VICTOR

GROUP 1 GROUP 2 GROUP 3 GROUP 4 GROUP 5 GROUP 6 GROUP 7

CIVIL REFORM CIVIL REFORM CIVIL REFORM CRM C/M CRM C/M ADR IT

CHAIR PERSON MULLER, J VAN NIEKERK, J HOFF, J LIEBENBERG, J SHIVUTE, J PARKER, J E SCHICKERLING

RAPPORTEUER ADV R HEATHCOTE H ANGULA ADV BASSINGSWAIGHTE ADV G HINDA ADV D SMALL F KOPPLINGER E RAKOW

Ndauendapo, J Henning, AJ Swanepoel, J Siboleka, J Namandje, AJ Ueitele, AJ Tommasi, J

Ms P Thuto Ms C Muchaka Mr G Nepaya Adv M Imalwa Botes, AJ Ms I Aggenbach Mr George Chan

Ms C Potgieter Mr T Namiseb Adv R Totemeyer Mr V Mbauurua Ms P Daringo Adv B vd Merwe Mr Mike Yap

Mr S Katjiuanjo Adv G Dicks Adv J Schickerling Adv H Oosthuizen Adv C Mostert Mr B-M Shinguadja Ms A Zaaruka

Adv A Corbett Adv D Smuts Adv H Geier Adv S Viviers-Turck Mr J Wessels Mr Brian Katjaerua Adv D Obbes

Ms T Hancox Ms H Garbers-Kirsten Mr Kobus Muller Mr W Christiaans Mr Hengaari Mr Dirk Conradie Mr Peng Chew

Ms T Mbome Mr Wolgang Pfeiffer Mr R Mueller Mr B Basson

Commissioner R Malobela Adv Hendrik Kotze

Mr Gim Ong

Adv H Schneider-Waterberg

Mr N Tjombe Mr Mark Kutzner Ass Commissioner M Tsuseb

Major General V Hifindaka

Adv Willie Pienaar

Mr C Bodenstein Mr A Vaatz Adv E Schimming-Chase

DISCUSSION TOPICS

HOW DO WE MOVE FROM A LITIGANT DRIVEN CIVIL PROCESS, TO A COURT DRIVEN PROCESS?

HOW DO WE APPLY JUDICIAL CASE MANAGEMENT PRINCIPLES IN THE

CRIMINAL CONTEXT

DISCUSS ALTERNATIVE

DISPUTE RESOLUTION AS

AN INTEGRAL PART OF JUDICIAL

CASE MANAGEMENT

IDENTIFY “IT” NEEDS IN THE

HIGH COURT AND DEVELOP A

STRATEGY FOR IMPLEMENTATION

IN A MODERN COURT SYSTEM APPLYING JCM

Guidelines for group discussions

1. Where you make specific recommendations, it will be appreciated if you could identify the primary or subordinate legislation

(original or amending) required to give effect to your recommendations.

2. Generally point out what you think would be the measures necessary to assist the implementation of the new dispensation.

This could relate to the training required for judges, practitioners or court staff.

The above is not exhaustive.

NB: THE RAPPORTEUERS SHOULD SUBMIT A TYPED REPORT TO THE CHIEF REGISTRAR BEFORE THE FEED BACK TIME SLOT FOR SUCH GROUP. SECRETARIES AVAILABLE SHALL BE RESPONSIBLE FOR THE TYPING OF THE REPORTS AND SHOULD START TIMEOUSLY (8 OCTOBER) WITH TYPING, TO ENSURE THAT THE DEADLINE FOR THE HANDING IN OF THE REPORT IS MET. RAPPORTEUERS WHO ELECT NOT TO MAKE USE OF THE SECRETARIES ASSISTANCE, SHOULD IN ADDITION TO THE HARD COPY MAIL IT TO [email protected]. WIRELESS INTERNET IS AVAILABLE AT MIDGARD – FREE OF CHARGE

mailto:[email protected]



PART 2

THE OPENING ADDRESS: HON. MR. JUSTICE PETER SHIVUTE, CHIEF JUSTICE OF THE REPUBLIC OF NAMIBIA

Honourable Judge President;

Honourable Judges of the High Court;

Esteemed Prosecutor General of Namibia;

Esteemed President of the Law Society of

Namibia;

Esteemed President of the Society of

Advocates;

Esteemed President of Namibia Law

Association;

Distinguished Permanent Secretary of

Justice and other Government officials

present;

Distinguished Delegates to the Conference,

Ladies and Gentlemen:

I feel greatly honoured to have been invited to attend the opening ceremony of this

historic conference. It gives me even greater pleasure to have been asked to make

a few remarks as a prelude to the proceedings this morning.

As you are aware, our constitution and the law have put in place several sentinels for

the protection and sustenance of our constitutional democracy. Foremost among

them, apart from perhaps the regular elections that give us an opportunity to choose

our political representatives, is the Judiciary. The Judiciary undoubtedly plays an

important role in the enforcement and protection of human rights. In this regard, as

one of the two institutions constituting the Superior Courts in the hierarchy of our

Judiciary, and particularly also having been clothed with original jurisdiction to hear

and adjudicate upon all civil disputes and criminal prosecutions, including cases

which involve the interpretation, implementation and upholding of the Constitution



and the fundamental rights and freedoms guaranteed there under, the High Court

plays a vital role in our judicial system. It is also at the High Court level that appeals

from lower courts are dealt with in the first instance. It is therefore fitting that

initiatives aimed at judicial reform should start at the High Court level so that the

resources necessary to bring this initiative to fruition are initially dedicated to this

level of our judiciary to ensure that the nation obtains maximum benefits from this

constitutionally important institution.

Many judiciaries have undertaken initiatives aimed at redressing inherent

weaknesses in their judicial systems, which include but not limited to backlog of

cases, delays in the delivery of justice and generally considerations of the need to

ensure that the Judiciary is responsive to the demands of a modern society. Among

such initiatives is judicial case management accompanied by legal reforms of

substantive and procedural laws; institutional reforms and restructuring; increased

financial resources and infrastructure; standard setting and monitoring and

evaluation.

Judicial or Court Case Management in a nutshell is a process or system where

courts and court users organize and control the conduct and disposal of court cases.

While the actual process, system or strategy may differ from one jurisdiction to

another, the end result is that the system put in place must be able to meet the

needs of the courts and court users and must ultimately enhance the quality of the

administration of justice. When accompanied by essential supporting systems such

as adequate Information Technology and initiatives such as Alternative Dispute

Resolution (ADR) mechanisms or establishment of specialized courts like

Commercial Court, case flow management system helps to transform responsibility

of managing cases from parties to the courts and may offer the following additional

advantages:

1 It empowers all stakeholders in the litigation process to contribute to the

expeditious resolution of disputes;

2 It enhances the court‟s ability to manage the litigation adjudication process;

3 It minimizes delay; and



4 It reduces the cost of litigation.7

Furthermore, as the report compiled by the Judge-President clearly shows, in some

of those countries where judicial case management was successfully introduced,

there has been a marked improvement in the justice delivery system, including the

renewed public confidence in the judicial system, which is a vital requirement in the

legitimacy of a modern judicial system.

Initiatives such as those proposed in the report demand leadership and stewardship.

I am therefore pleased that the Judge-President with my full support and

encouragement has taken the initiative aimed at promoting access to justice at the

High Court level with emphasis on the possible introduction of a Judicial Case

Management System. For the judicial reforms to be successful, it is very important

that it is supported by all role players, including those that control the public purse.

This is essential because by all anecdotal accounts, Case Flow Management

System is an expensive exercise to introduce and successfully run. It requires

increased financial resources and infrastructure, which in turn demands considerable

political and administrative will. In a developing country such as ours, the

involvement of development partners to complement the budgetary support that

would be needed from the treasury will almost inevitably be required. It is therefore

essential that every party that will be expected to play a role is onboard from the

start. In this connection, I am pleased that all the key stakeholders have been

invited to the conference.

I urge the participants to be open-minded in their approach and to be receptive to

proposals for new ideas and modernization. We need to be flexible in our approach

and develop a strong vision to take bold forward-looking initiatives that are needed to

bring real benefits to our people at the judicial level. It is my firm conviction that

judicial reform is the way to go and there can be no going back on this resolve. I am

therefore delighted that you have found time out of your busy schedule to be part of

the conference so as to map out strategies of how the justice delivery system in our

country can be improved. The stakeholder‟s role in this exercise is vital; it defines

the parameters of the vision and assists in driving it.

7 Adopted from a paper presented by Chief Justice E. L. Sakala of Zambia at the conference of the Southern

African Judges Commission, Johannesburg, South Africa entitled “On Delays in the Legal System” held from 14 to 17 August 2008



In conclusion, I would like to commend the organisers of the conference for their

hard work in ensuring that this timely and relevant event takes place. I am informed

that this gathering has generated much excitement, interest and support from the

legal fraternity and I am sure I speak for all when I say we are looking forward to a

most interesting and informative conference.

It is now my distinct pleasure to declare the conference open and to wish you

successful deliberations.

Thank you.



REMARKS BY THE HON. MR. JUSTICE PETRUS T. DAMASEB, JUDGE PRESIDENT OF THE HIGH COURT OF NAMIBIA

Ladies and gentlemen

Invited guests

I am very honoured and humbled by

the enthusiastic response to my

invitation by such a distinguished and

eminent group of persons. I am sure

that such enthusiastic response was

borne out of the appreciation of the

importance of the task that is at hand.

I thank you for coming and I welcome

you all to this stakeholders‟

conference.

Most of what I want to say is in the

report which you, I am sure, had the

opportunity to read and to form an

opinion about. I want you to feel free to contribute freely and openly to the discussion

of the report over the next two days. I am sure you will do so constructively and in a

spirit that promotes progress.

Before I deal with the house-keeping matters, I wish to make some prefatory

remarks. The report we are here to discuss is -as you will see - the first report in

what I expect to be a series addressing specific issues limiting access to justice in

the High Court. Based on our discussions during this workshop, it is very likely that I

will ask task teams to investigate other well defined issues and to make specific

recommendations on measures to be taken to improve the system of justice- delivery

in the High Court.

I have thought long and hard about the future direction that the rules governing

litigation must take in the High Court. I have a special obligation to consider every

cogent argument in opposition to the future direction that we argue for in the report. I



do not see- either in the Constitution or in our written law- anything that stands in the

way of the implementation of JCM.

The caveat, however, is that in the detail of the implementation of JCM, great care

must be taken to give full effect to the right of litigants to a fair trial guaranteed under

article 12 of the Namibian Constitution. In particular, I consider the following tenets to

be immutable:

1 The right to audi alterem partem;

2 Fair and impartial tribunal: judges must eschew situations that place them in

potential conflicts that may open them to criticism that they are „‟judge in

own cause‟‟;

3 Litigants must be afforded sufficient time as the circumstances of the case

justify to fully and properly present their cases; but that is no license to

engage in conduct that wastes precious Court time;

4 Lawyer/ client confidentiality must be guaranteed: practitioners must not be

pressured to divulge privileged information;

5 The accused‟s right against self-incrimination is not negotiable.

In my view, the future direction for the High Court lies in wresting control of the

litigation process from litigants and their legal advisors and making it a responsibility

of the Court. In the present report we set out the steps necessary to achieve that

objective - together with the other measures that need to be taken to speed up the

litigation process and to alleviate the burden on the Court process through ADR;

and generally to make the litigation process cost-sensitive and to create a

framework which promotes early settlement of disputes.

To highlight only some of these: We need to relook the rules relating to pleading,

expert evidence, discovery and pre-trial conferences. In the criminal context, the

need for properly narrowing areas of dispute early enough so that the Court

adjudicates matters in a streamlined and expeditious way is very crucial. I hope that

the Prosecutor General will consider options such as plea-bargaining in appropriate



cases to encourage accused persons to plead guilty more readily in the expectation

of lesser sentences.

The other issue that has been an obsession for me lately is emphasizing the legal

practitioner‟s duty in all this to assist the Court in curtailing litigation in the public

interest. That responsibility will become more pronounced in the judicial case

management environment. In this context, I cannot emphasize too strongly that the

Courts alone cannot resolve all disputes. Practitioners must encourage clients to

pursue alternative dispute resolution methods where that is possible. Our duty as a

Court is to encourage that to happen by creating the necessary facilitative and

coercive framework for alternative dispute resolution.

The Registrar of the High Court has this morning given you some taste of what is the

reality on the ground. In terms of increased workload, things are not going to get any

better in the foreseeable future. The system is almost at break point. Useful as it may

be, this workshop is not the time and place to harp on about the imperfections of the

current system. We have gone to the trouble of proposing something that we feel will

address the problems we are facing, based on international good practice. Judicial

case management is the way forward. That is the direction in which the entire world

is moving.

Let us rather spend the next two days looking at the specific recommendations in

the report and agree on the best way to give effect to the new dispensation that is

sure to come about.

I thank you.



PART 3: PRESENTATIONS IN PLENARY

MS. ELSIE SCHICKERLING, THE CHIEF REGISTAR OF THE SUPREME AND HIGH COURTS OF NAMIBIA: WHY THIS WORKSHOP?

THE JOURNEY OF TRANSFORMATION

- During the past 5 - 7 years, litigation in the

High Court increased to double the amount

of cases;

- Increase in case load demanded changes

to existing process in order to successfully

cope;

- Most of the changes made were quick

fixes;

- Crisis management with a lack of long term vision

The past is summarized with the following:

- Towards the end of 2008 and the beginning of 2009, the High Court realized

that a long term plan should be implemented to cater with not only existing

public demand, but also future demand;

- As end result we adopted the Vision of the Ministry of Justice –

“Timeous and Accessible Justice for All”

Key areas to be addressed were identified:

- Issuing of process, i.e. default judgments, writs, summonses etc;

- Backlog on Appeals

- Standard of Appeal records

- Enrollment of Opposed Motions

- Enrollment of Trial cases

- Judgments

- Automatic Criminal Reviews

- Record keeping (case files)



- Civil Taxations

- Logistical Issues, i.e. courtrooms, chambers, offices

- Equipment & Devices

Rules of Transformation were identified:

- If you can‟t measure it, you can‟t control it

- Proper registers were introduced statistical purposes

- There is no “I” in TEAM

- Registry & Judiciary

- Always have the goal in mind: Timeous and Accessible Justice for all

- Change should start within

- An organized and disciplined system creates space

- Timeous Justice will contribute to Accessible Justice

- Leave the past where it belongs, the future is what matters: “NO MORE!!!!!”

The Journey started slowly, with small steps at a time. Gradually the pace was

increased. Often, for every step taken forward, two steps were taken backward

ISSUING OF PROCESS

Default Judgments, Writs, Summonses

FINANCIAL YEAR 2009/2010

Registrar

2176 Default Judgments

2594 Writs

5971 Summonses

581 Applications

247 Civil Taxations



Weekly at least 30 Summonses within the Magistrates‟ Court Jurisdiction are issued

in the High Court

Increase in Process = Decrease in available court time

CIVIL TAXATIONS

RECORDS

All High Court Case records are to be kept at the High Court for a period of 30 years

(Code Archive)

Requested permission to archive in respect of 169 boxes containing files (1979 &

1980)

2009 Files consists of 610 boxes, and 2008 files consist of 514 boxes. Numbers

excludes Files which are too thick to fit in the boxes

Space became a huge problem and the records were absorbed by clutter

Records were spread all over the Court Building

Shelves in the record rooms were not marked for identification purposes

Records were not filed in any logic or chronological sequence

Files which were too thick for a box were placed where ever the Record clerk could

find space – sometimes under tables on the floor

Separated Appeal Matters and Term Roll Matters from the General Office



Introduced a register where files are signed off when it leaves the Term Roll or

Appeals office

Motion Office with separate areas for the different motion days

Stock Control of all files and boxes in the building

Increased shelving space with 80 steel shelves

Shelves were marked according to case type and year

Files too thick to fit into a box are placed at the bottom shelve of the numerical place

where it is suppose to be filed

We are still busy re-arranging the files, should be finished by end of October 2010

RECORDS: THE RESULT

Only two files of, which we know, are still lost / misplaced.

Once we are finished, we will gradually start to go through all the boxes for misfiled

files.

CRIMINAL APPEAL RECORDS

Removed Appeals from General Office to separate office

All staff (legal clerks, record clerks and interpreters) received training in the binding

of appeal records and the process of appeal

Developed an appeal check list for Registrar‟s office

Records returned to Clerk of Court is accompanied with letter stating the problems

Service of Notice of Set-Down by Deputy Sheriffs

CRIMINAL APPEAL BACK LOG



Introduced Prison Appeals on Fridays

3 Appeals set down per Friday

3RD Term 2010, 4 Appeals per Friday

1ST Term 2011, 10 – 15 Criminal Appeals currently ready for set down. Matters

ready for set down after initial set down will be set down for same term, alternatively

next term

There is however still a number of old appeals currently with Magistrates‟ Offices, for

corrections on records

TERM ROLL

Introduced:

- Civil Floating Roll

- Divorce Floating Roll

- Opposed Motion Roll (3rd term 2010)

Introduced Divisions:

Initially

- Criminal

- Labour & Divorce

- Balance of Civil

Currently

- Criminal

- Civil & Labour

Certain Judges are allocated to specific divisions during a term



1st TERM 2011 = 13 WEEKS, 21 March – Public Holiday:

• 27 Fixed roll matters ( 5 - 10 days each)

• 45 Opposed Motions – 15 Opposed Motion Rolls 3/roll

• 174 Civil Floating roll matters - 22 Civil Floating Rolls – 8/roll

• 65 Divorce Matters – 13 Divorce roll 5/roll

• Total of 88 court weeks required, spread over 13 terms weeks with 5 court

rooms available

• 13 weeks and 5 court rooms only provides 65 court weeks.

• Increase in enrolled cases = more court rooms and chambers



ENROLLED CASES PER JUDGE

3rd Term 2010: Criminal Judges:

17 – 19 Appeals

2 – 4 Criminal Trials

Civil / Labour Judges:

180 1ST & 2ND Motion Court Files

12 Appeals

2 – 3 Fixed Roll Matter

5 - 10 Opposed Motions

39 Floating Roll Matters

8 – 10 Urgent Applications

4 Interlocutory / Rule 43 Applications

Civil Roll:

6 Week Cycle (6 Judges – 5 Court Rooms)

Duty Judge

Civil Floating

Civil Floating



2nd Mot, Divorce & Labour Appeals

Opposed Motion

Criminal & Civil Appeals

Fixed Roll matters are accommodated in addition to the 6

Week Duty Cycle

Criminal Roll:

Windhoek: 3 Judges 3 court rooms

High Treason 1 Judge 1 Court Room

Oshakati: 2 Judges 2 Court rooms

Average 3 Cases per judge per term

Part Heard are dealt with during recess periods

Acting judges are appointed for lengthy trials to be dealt with

during recess periods

All Judges are responsible for Criminal Appeals (Judge

President, 10 High Court Judges and 3 – 4 Acting Judges)

All Judges, excluding the Judge President are responsible for

Criminal Reviews

CRIMINAL

Criminal Statistics Financial Year 2009/2010

103 New Criminal Appeals

175 Appeals Enrolled

103 Finalized

2366 New Criminal Reviews

1397 Finalized (confirmed / judgment / not reviewable)

46 New Criminal Cases

14 Cases Finalized

Introduction of Criminal Division:



First Term 2010

Windhoek: 14 Criminal Matters

Treason Trial Enrolled

Oshakati: 4 Criminal Trials (1 Judge)

First Term Recess

10 Partly Heard

Second Term

Windhoek: 8 New & 2 P/H Criminal Matters

Oshakati: 7 Criminal Trials

Second Term Recess

9 Partly Heard

2 New Criminal Matters

Third Term

Windhoek: 8 New & 6 P/H Criminal Matters

Oshakati: 4 Criminal Trials

Total of 43 Criminal Trial Matters Enroll,

Excluding Partly Heard Matters

CRIMINAL REVIEWS

1 January – 30 September 2010

1545 Criminal Reviews Received

1088 Criminal Reviews Finalized

96 Criminal Reviews Queried

305 Reviews Outstanding On 30 Sep 2010

91 Delay caused by Magistrates Court

214 Delay caused by High Court, of which 95 were received during Sep 2010





LOGISTICAL PROBLEMS

CRIMINAL ROLL:

1 Judge – 1 Court Room

Civil & Criminal Roll:

6 Judges - 5 Court Rooms

WINDHOEK HIGH COURT:

9 Court Rooms + Prison Court

Jp‟s Chamber

11 Judges‟ Chambers

WHY CHAMBER TIME?

Preparation (reading) of all matters enrolled

Research for judgments

Writing of judgments

Criminal Reviews (182/judge/2009-10 fin year)

In Chamber Applications

DO THE JUDGES WRITE JUDGMENTS?



JUDGMENTS HANDED DOWN:

1 January 2010 – 30 September 2010

232 Judgments Handed Down

WHY THIS WORKSHOP?

Apart from the changes mentioned in our endeavors to provide Timeous and

Accessible Justice for All:

- A Computer Network has been installed

- Judges were supplied with Laptops and 3G„s

- 5 Posts for Judges Clerks have been approved, 2 of which have already been

advertised

- A number of Acting Judges have been appointed on a regular basis, a

practice which will continue

- If approval is granted and the budget permits, we will subscribe to Online

Jutalaw

- Approval for 3 Additional High Court Judges was given with effect 1 April 2011

- Process for Additions to the High Court Building was started

WHY THIS WORKSHOP?

Having laid all the cards on the table, the challenge is yours to assist the Honourable

Judge President to find a workable and sustainable solution in the way forward.



MS PEPSI PHUTO (FROM THE BOTSWANA LAW SOCIETY), JUDICIAL CASE MANAGEMENT IN BOTSWANA: OPPORTUNITIES AND CHALLENGES

JUDICIAL CASE MANAGEMENT IN

BOTSWANA

(A Practitioner‟s Perspective)

Presented by P S Phuto

8 October 2010 Namibia

CHARACTERISTICS OF JUDICIAL CASE

MANAGEMENT IN BOTSWANA

Pace of litigation now controlled by the Judge

not litigants or their attorneys

The Judge manages his own diary and

schedules his own cases

Judge now has a staff of 4 people dedicated to the running of his cases, court room

and trial schedule

Judge no longer a passive participant

Adversarial system of litigating has been retained

The same Judge deals with the matter from start to finish

Judges are monitored on how many cases they complete per year

Judgments must be delivered within 3 months

Pleadings greatly detailed

Affidavits are required as part of pleadings and exchanged early on

Witness summaries are required before trial date is set

Discovery is required before trial date is set

Objections to documents and witnesses are to be dealt with before trial date is set

No surprises for any party, only witnesses whose statements have been filed can be

called.

Dismissal for want of prosecution if no step taken in a matter for 6 months.

Aim for cases to be completed within 18 months of commencement.



CHALLENGES AT THE STARTING BLOCKS

CHALLENGES

Rush in implementation, therefore insufficient time to think all things through or have

a practise run or adequately train everyone.

Informally introduced in February 2008 and rules amended in May 2008

Implemented by straight away dividing all pending cases amongst all the Judges

with the result that each Judge was suddenly lumped with more than 1000 cases,

some more than 10 years old

Each Judge then had to personally wade through cases to determine the status,

whilst at the same time continuing to hear scheduled litigation matters.

On account of poor manual record keeping over the years, the Judges could not

always determine from the documents filed, what the status of the matter was

They resorted to holding a kind of a motion court where they set down matters for

what are called “roll calls” or “status hearings”, none of which are provided for in our

rules

Attorneys suddenly found themselves having to appear in court on very short notice

to advise the Judge what the status of a matter was. Often this was impossible to do

as some clients had all but forgotten about their matters and were not readily able to

decide whether they wished to pursue them or not, or clients could no longer be

located.8

Matters got struck off the roll or dismissed as a consequence and much time, money

and effort was wasted in making applications for reinstatement or rescission.

High Court Staff were left behind in the training and had to play catch up.

Constant chopping and changing of High Court staff involved directly in JCM

SUGGESTED SOLUTIONS

JCM is an all or nothing choice so phasing the division of cases amongst the Judges

would be impractical:

8 Namibian legal practitioners are cautioned to take note of this and to plan their affairs properly in

anticipation of the implementation of JCM in Namibia.



Either Senior Practitioners can be appointed acting Judges for a brief period to assist

the Judges by going through the files and calling the litigants and their attorneys to

appear before them to determine the status of matters;9 OR

Registrar‟s with the requisite experience.

The Rules must include a provision for the holding of status hearings to enable

Judges to call the litigants to appear and advise whether the matter is still alive;

Interim rules bridging the old rules and the new rules should be promulgated to

enable effective management of the transition.

Sufficient time must be allotted for training of ALL stakeholders, Judges, Attorneys

and High Court staff

Once staff trained they should be retained in those positions so they can train others

before being redeployed elsewhere

CHALLENGES

Matters that had commenced under old rules had to immediately fall in with the old

rules and that created immense problems.10

Summary judgment rules had been changed drastically so in some cases it became

impossible to apply for summary judgment after appearance to defend had been

entered.

No uniformity in the manner in which the new rules were applied to old cases.

POSSIBLE SOLUTIONS

Interim rules bridging the old rules and the new rules should be promulgated to

enable effective management of the transition. 11

There should be a phased approach to applying the new rules to old cases such that

certain of the old provisions continue to apply until a convenient point in the trial

process when the Judge would then move the matter over to JCM: i.e. at close of

pleadings.

9 The Judge President intends to act on this advice. The Law Society may wish to inform their members that it

is planned even before the official implementation of JCM to start status hearings and to weed out dead wood and to start informally case managing old cases still considered pending on our Roll. It may be best for instructing counsel to start looking at files in the offices and to see which matters are stale and to take the necessary steps to withdraw them from the active roll. Clients must be contacted to indicate if they are still interested in pursuing these stale matters. 10

The relevant drafting Committees must heed this caution. 11

We will act on this recommendation.



JUDICIAL CASE MANAGEMENT IN THE BOTSWANA HIGH COURT

Issue of summons

Allocation of matter to a Judge

Appearance to Defend filed (within 14 or 21 days)

Application for default judgment to Registrar

Summary Judgment Application heard if Applicable*

Judge issues an Initial Case Management Conference Notice* (no time limit set…

“as soon as practicable”

* Denotes that the sequence of these steps could be swopped

CHALLENGES DURING FILING OF PLEADINGS

No uniformity in the manner in which Judges apply JCM once Appearance to Defend

has been entered. Order 42 Rule 2(2).12

Some Judges schedule an ICMC immediately Appearance to Defend is entered;

others wait till the litigants request that an ICMC be scheduled.

As a result the pace can be slowed down considerably at this stage as the litigants

find themselves in control.

Litigants and their Attorneys hold Initial Case Management Conference in their

chambers (21 days before scheduled ICMC) and file a report (14 days before ICMC).

Order 42, Rule 2 (3)

Litigants and their Attorneys appear for an Initial Case Management Conference

before the Judge

The Judge issues an order setting out a Case Management Schedule

As each Judge controls his own diary and scheduling and is under pressure to

complete cases timeously, scheduling is done without consultation with the parties

with the result that Practitioners often find themselves having to appear in as many

as four different courts on the same day.

The present rules required litigants to attend and yet there is nothing that is ever

required of them at the ICMC stage.

12

The Judge President intends to issue standard procedure manuals for use by the judges so as to promote uniformity.



Judges tend to be unsympathetic when Attorneys are unable to attend ICMCs on

account of clashing schedules.

Additional legal costs for the clients for: the ICMC court appearance;

the ICMC meeting that has be held prior to the appearance at court; and

the report to be prepared and filed.

Some client‟s don‟t understand why there are these increased costs and

attendances.

POSSIBLE SOLUTIONS

Mechanism to be put in place for all ICMC‟s to be scheduled automatically within 30

days of Appearance to Defend being entered.

Remove the requirement for litigants to attend the ICMC, only the Attorneys should

attend.13

Judges should agree amongst themselves that only 2 or at the most 3 Judges per

day hold ICMs or Final Pre-trial Conferences.

In compliance with ICMC Order or Order 24

Rule 4 (within 30 days of Appearance being entered), Plaintiff files Declaration with

affidavit(s) and all supporting documentary evidence and legal motivation.

Defendant files a Plea (and a counterclaim if required) with affidavit(s) and all

supporting

documentary evidence and legal motivation.

Order 25, Rule 2 and 7

Plaintiff files Replication (if any) and Plea to Counterclaim with affidavit(s) and all

supporting documentary evidence.

Replication to Plea in Reconvention does not require affidavits. Order 26

13

This is an eminently sensible suggestion.



Front-end loading of all the preparatory work means that the costs of instituting

action have rocketed. Affidavit must be by someone who has direct knowledge

setting out the facts relied upon. Order 24 Rule 2 (b)

No uniformity in the manner in which Judges apply JCM. Some Judges don‟t

schedule or hold ICMCs in accordance with Rules.

Judge issues a Final Pre-trial Conference Notice. This date is most often set at the

ICMC held with the Judge.

Litigants and their Attorneys hold a Final Pre-trial Conference in their chambers and

file a Proposed Final Pre-trial Order detailing the proposed schedule for the trial,

number of days for trial, the actual dates required, witnesses to be called with their

statements and, documents to be used etc.

CHALLENGES ONCE PLEADINGS CLOSED

No uniformity in the manner in which Judges apply JCM. Some Judges do not set

the Final Pre-trial date at the ICMC. As a result matters slip through the cracks and

there is another potential delay period after pleadings have been closed.

Some Judges do not insist on holding ICMCs or Final Pre-trial Conferences in

accordance with the rules

Others will only partly comply with the result that for example a matter is set for trial

when witness statements have not filed or the rule that requires the attorney who will

actually participate at the trial to attend the Final Pre-trial Conference is ignored.

Order 42 rule 6

Attorneys are notoriously non compliant

Litigants and their Attorneys appear for a Final Pre-trial Conference with the Judge

The Judge issues a Final Pre-trial Schedule which is basically the schedule of when

and

how the trial shall proceed; number of days and the actual dates are specified; which

witnesses shall be called which documents shall be used and any other issues

pertinent

to the conduct of the trial.

Some Judges do not insist on holding ICMCs or Final Pre-trial Conferences in

accordance with the rules



Others will only partly comply with the result that for example a matter is set for trial

when witness statements have not filed, or discovery made in full.

Attorneys are notoriously non compliant and unfortunately the prescribed penalties

are not always applied

The Court of Appeal Judges were not educated about JCM at the time of its

implementation. This resulted in some Appeals being heard and judgments passed

reversing decisions of High Court judges to dismiss claims for non compliance with

Case Management directives.

Trial proceeds for the number of days scheduled.

Judgment within 3 months of conclusion of trial

ADDITIONAL CHALLENGES

GENERAL CHALLENGES

Attorneys and Judges not IT savvy at all, so there is and will continue to be a

challenge in implementation of the CRMS system.

CRMS is an internal program.

Judges not delivering judgments in 3 months and no mechanism in place to compel

them to do so. Judgments can take as long as 12-18 months to be delivered.

Registrars are afraid of the Judges and do not engage them.

Some Judges delay in allocating dates to cases because they want to do it

themselves and yet they have a clerk employed to do that.

Judges have no research clerks to assist them and they are overloaded with the

pressure of JCM.

No clarity regarding who attorneys deal with when communicating with the Judge, Is

it is Registry clerk or Court Clerk or secretary?

Registrars still take too long to process default judgments. JCM appears not to have

filtered down to them

One Registrar is a dedicated Taxing Master and taxations now take place within one

month of filing of bill for taxation.

Some court orders still take too long to be issued. Where Judges themselves take

control, orders are issued timeously.

No proper dialogue between LSB and Judiciary and Administration of Justice.

Haphazard



Attorneys not coming to the party.

Need for ADR

ADDITIONAL CHALLENGES

POSSIBLE SOLUTIONS

IT training for Judges and Attorneys.

Change of mind-set amongst Judges and Attorneys regarding use of computer

technology.

Need website like the Namibian one.

Research clerks for Judges.

Practice Notes to clarify communication lines which will be effective.

Registrars need to be more proactive.

LSB needs to engage Judiciary and AOJ consistently.

Attorneys must take responsibility for making JCM work.

Mechanism must be put in place to complain about Judges not delivering.

Rules to be changed to include some ADR.



CRIMSONLOGIC: BUILDING AN ELECTRONIC JUDICIARY

























































PART 4

HOW DO WE MOVE FROM A LITIGANT DRIVEN SYSTEM TO ONE DRIVEN BY THE COURT?

GROUP 1:

Chairman: Muller J

Rapporteuer :

Adv Raymond Heathcote SC

Ndauendapo, J

Ms P Phuto

Ms C Potgieter

Mr S Katjiuanjo

Adv A Corbett

Adv H Schneider-Waterberg

Mr C Bodenstein

Ms T Hancox

PROPOSED PROCEDURE

As soon as the case is opened, the case is allocated to a judge.

Simple summons still possible – no documents attached.

Combined summons, then most important documents attached to particulars of claim

– this is difficult, as not everybody is in agreement about what is important and not

what.

Initial case management conference: After filing of notice of intention to defend, the

initial case management conference is held with the judge to whom the case has

been allocated. At this conference times are stipulated by the judge, in the form of a

directive, which is an order of court for the filing of all documents / notices /

pleadings. This conference sets the schedule of the case – how is it going to be run.

Question: should litigants (clients) be present at this initial conference or not? If they

are, they are also alerted to the time limits and directions given b the judge.



Concern: not all clients are able to attend physically (money constraints etc). In

principle it is good to have clients involved, but there should be exceptions when it is

not possible. The advantage of having clients involved from the out-set is that early

settlements are a greater probability. Suggestion: in all matters, except where legal

aid or legal assistance is involved, the parties should be present personally. Should

not always be compulsory, but strongly advised.

No request for Further Particulars – done away with entirely.

Plea filed within the time stipulated by the judge at the initial conference – also attach

all the most important documents to the plea.

Witness statements exchanged at this stage – all parties bound by this. Does this

take the form of an affidavit or not? Certain reservations entertained about the

affidavit form.

After close of pleadings – parties have to exhaust discovery completely.

Legal Practitioner / counsel involved in the case then have to certify that the

discovery process has been entirely exhausted – at that stage you have a complete

set of pleadings, issues are defined. The matter is now ready to prepare for trial and

a first pre-trial conference is scheduled with the judge.

Prior to the first pre-trial conference, the parties make a joint proposal to the judge; if

some disagreement between the parties exists and no joint proposal is possible,

then each party makes own proposal. This conference is held in court. These

proposals are aimed at curtailing the proceedings.

First pre-trial conference with all parties in the presence of the judge: the holding of

conferences must be peremptory within a set period of time – no discretion or “within

reasonable time”. What is discussed at the conference should also be prescribed by

the rules. Compulsory for parties to be present at this conference.

After the conference the judge makes an order concerning dates, filing of further

procedure.

Only after the first pre-trial conference has been held, then counsel may apply for a

trial date. Thus, parties have to exhaust Rule 35 procedure before you can get to

Rule 37 procedure.

No trial date should be given prior to discovery. Concern: Have to cater for statutory

prescription periods (e.g. litigation against the State) – consider condonation rules in

such circumstances.

Sanctions for not following directions given by the judge or the time-limits set by him

in the directions need to be considered.

Question: what happens to the dies induciae indicated in the rules and the other

peremptory terms of the rules? Some will probably fall away. (In Botswana – as soon



as judge becomes involved, no more time limits contained in rules – the judge does

this).

Lapse of case – if a party does not do anything for six months.

ADR compulsory in certain matters – matrimonial matters. In other matters, it‟s a

permissible process and depending on the judge who manages the case. Concern:

additional costs; should this be provided as part of court process, i.e. paid by the

state.

Presentation of evidence – no oral evidence in chief, only on affidavit. Start with

cross-examination. Grave concern about this: what if you foresee that you might get

absolution? Defendant compelled to file affidavit? Will this mean that it‟s the end of

tactical denials, or will tactical denials still be allowed? Will this not affect maters of

onus (which is substantive law)? Possible solution: before filing affidavits, raise you

technical issues and request this to be adjudicated first.

IMPLEMENTATION

Immediate implementation of JCM system not possible.

From judge‟s point of view if you have both the old system and new system, the

judge does not have the time to do case management

Transition period? Is that possible / is it workable?

Suggestion: have a set date for implementation – initially let the acting judges deal

with the old cases and the permanent judges deal with new cases under new system

Suggestion: Acting judges appointed still for short periods and can deal with roll call

and status of cases, urgent applications and the like i.e. they start the new process

and then pass onto permanent judges

Other possibility – parties at some point, voluntarily agree that a current matter be

case managed. This will be testing the system, and see where the problems with

practical implementation lies.

Increased costs with the JCM.

JUDGES

The role of the judge: the judge gives directions to move the matter forward and

curtail proceedings. He does not, however, become involved in the formulations of

the pleadings.



Judge needs additional infra-structure - two secretaries (one of them is the

stenographer) / court clerk (also interpreter) / registry clerk (prepare roll, diary,

allocates dates, notices).

JCM cannot work with the amount of judges that we have – we need more

appointments, otherwise we will “hurry up and wait”.14 The concern is that more

judges require additional infra-structure, i.e. more chambers, more courts.

Judges need research assistance – suggestion: JTC students can be required to do

this service as part of their practical training.

POSTPONEMENTS

To be permitted only under very exceptional circumstances. 15

The pre-trial conferences will probably take care of this and would thus probably

exclude postponements.

E-FILING

Retain the possibility of manual filing.

Government involvement in educating and training personnel.

For it to be successful, it has to be driven from the top (JP driven)

Transcription of court records?

INVOLVEMENT OF ALL STAKE HOLDERS

Academics / university / justice training

Supreme Court judges – when involved?16

14

This is an untested thesis. The success of the system will rather depend on the planning that goes into the introduction of the system. How many judges would be enough? The more judges you appoint the more cases will be placed on the roll. It is wrong to assume that the number of cases enrolled will remain static as more judges are appointed. That has not been the experience at the High court of Namibia. 15

The Rules to be adopted must make clear that absence of prejudice to an opponent is not the only criterion in the exercise of the Court’s discretion whether or not to grant an indulgence. The effect of a postponement on the overall management of the Court roll should be added as a criterion. 16

In Botswana, just as in England & Wales, the criticism has been made that the highest appeal court through its reversal of case management decisions, rather than advance, frustrated JCM. Justice Jackson, an appellate judge in England & Wales, does not agree with the criticism as far as England is concerned. See, Para 72 of the Jackson Report, where he states infra. ‘’7.2 Upholding case management decisions. It is a well-established principle that the Court of Appeal will be reluctant to interfere with case management decisionsmade by a first



Once this process is finalised, then involve the SC judges

Before implementation of process, involve the SC judges

instance judge who has applied the correct principles, unless thedecision is “so plainly wrong that it must be regarded as outside the generous ambitof discretion entrusted to the judge”( See Royal & Sun Alliance Insurance Plc v T & N Ltd [2002] EWCA Civ 1964 at [38] and Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [33]. ) Concern has recently been expressed that, despite this principle, the Court of Appeal is on occasions too ready to substitute its own views on case management issues (See Stephanie Wilkins, “Collins v Gordon: Is postponing trial a measure of last resort?” (2009) 28 CJQ 306.’’) It would not be right for me to comment on the merits of individual decisions. Nevertheless, going forward, I do regard it as vital that the Court of Appeal supports first instance judges who make robust but fair case management decisions. If the costs of litigation generally are driven up by the Court of Appeal’s efforts to protect a party against the consequences of his lawyers ’mistakes in an individual case, many other litigants will be denied access to justice altogether. Furthermore, whenever permission is granted to appeal against a case management decision, the timetable for the litigation in question is thrown into disarray’’- per Sir Rupert Jackson ‘’ Review of Civil litigation Cost: Final Report’’, December 2009 at p 386.). In the First Report I make reference to judgments of the England & Wales Court of Appeal expressing in very unequivocal terms support for JCM ethos. I have regrettably not seen Botswana decisions to gauge if the criticism in respect of their Court of Appeal is justified. Suffice it to say that it is an equally important aspect of the introduction of JCM that judges of appeal buy in to the ethos of JCM. My personal view of the matter is two-fold-

(a) It cannot be right to suggest that case management decisions should never be reversed on appeal and that doing so frustrates JCM. We must accept that High Court judges may misinterpret the Rules governing JCM and only an appellate Court can put that right.

(b) The Court rules governing JCM must be very clear and must spell out very clearly what the parties are required to do and what sanctions the Court may impose. Unless for some reason the Rules concerned are unconstitutional, the Supreme Court will give effect to them. Case management, in my view, is part of the Court’s inherent power to regulate its own affairs. The reforms we are initiating have the support and encouragement of the Chief Justice. It would be safe to assume therefore that he will take the appropriate steps to make his judges au fait with the principles and ethos of JCM. How the Supreme Court interprets the case management rules and the decisions of the High Court judges in individual cases cannot be predetermined.



GROUP 2:

Chairperson:

Van Niekerk J

Rapporteuer:

Hosea Angula

Henning, AJ

Adv D Smuts SC

Ms C Machaka

Mr T Namiseb

Adv G Dicks

Mr W Pfeiffer

Mr A Vaatz

Adv S Vivier-Turck

Mr L Karsten

The Group agrees that the current system is ineffective and in most instances it does

not work. It therefore supports the initiatives to change the current system subject

thereto that it is viable to implement. In our view this can only be accomplished if a

large number of judges (acting or otherwise are) appointed. There are a number of

retired senior practitioners and or judges from neighbouring countries that could be

approached to assist.

Subject to the aforesaid, the Group agrees and recommends that Judicial Case

Management System (JCM) be implemented in our Courts. We recognize that JCM

cannot be implemented without a computerized case tracking management system.

In the long term a paperless electronic filing system should be put into place. We

therefore support and recommend that steps be taken in collaboration with the MOJ

and the LSN to source funds to install IT system in the Courts.

The Group recommends that the implementation of the JCM takes place in stages:

The first step should be the Computerized Court Record Management System

(CCRMS); that during this transitional period acting judges be utilized to determine



the status of the cases in the system through roll calls and pre trial conferences.

We believe that by following this route it will avoid or mitigate the problems which

were experienced in Botswana with overnight implementation of JCM.

We recommend that judges should have their own mini-registry and run their own

diaries supported by the CCRMS.

The second step, and parallel with the introduction of CCRMS, the Rules of Court to

be amended to make provision for the following:

Detailed particulars of claim and a detailed plea should be required. Pleading of

evidence should not be discouraged.

ii. Do away with requests for further particulars. This must be replaced by an

exchange of notices of issues to be raised at the pre-trial hearing.

iii. Under the current system, Interlocutory procedures are being abused to delay

matters and to increase costs. The group recommends that the rules be

reconsidered either to do away with e.g. rule 23 and 30 or to amend them to make

them more affective. Any interlocutories and special pleas, e.g. jurisdiction and

prescription should be dealt with during the pre- trial process as expeditiously as

possible in the discretion of the judge.

The Group is not in favour of issuing a summary judgment application already at the

time summons is issued as is done in Botswana, as this is premature.

The Rules and the Practice Directives should be consolidated and harmonized as

there are currently a number of conflicts between the two which contribute to

inefficiency and delays. Practice directives should always be temporary until the

rules can be amended to accommodate them.17

We recommend that once the CCRMS is in place, the JCM should commence

immediately after a plea had been filed.

Discovery and filing of summaries of evidence (not affidavits) should happen

simultaneously and at an early stage before the rule 37 conference.

17

The Judge President accepts this as a general proposition but we cannot entirely do away with Practice Directions. It takes very long to have rules amended and in real life we come across issues that need addressing immediately.



We recommend that pre-trials be held before a judge. The minority view was that the

judge who presides at the pre-trial should continue with the trial because he/she is

familiar with the case. The view of the majority of the Group is that the judge who

presided over pre-trials should not preside over the trial. Litigants must attend the

pre-trial. The judge should be free to express his/her views to the parties about the

prospects of their cases. The advantage in this process is that the litigants would

seriously consider the wisdom of proceeding with their claims or defenses having

heard the judge‟s prima facie view. In this way the judge can be more effective in

moving the case to settlement.

The pre-trial must be utilized to define the issues for determination at the trial. The

judge should be empowered to issue directives to the parties aimed at narrowing the

issues for determination at the trial. The judge should also have power to issue

directives with regard to further discovery. Should this recommendation be accepted

it would require an extensive amendment to the current Rule 37.

With regard to the statements of expert witnesses, we support and recommend the

implementation of a joint statement by the expert witnesses indicating their areas of

disagreement(s). Rule 36 should be amended to empower the judge to appoint an

expert witness with the consent of the parties in case of unresolved or conflicting

views between the expert witnesses. In this respect attention is drawn to section

19bis of the High Court Act.18

It is proposed that unopposed divorce proceedings be done by way of application to

be dealt with in Chambers.

18

High Court Act 16 of 1990



GROUP 3:

Chairperson: Hoff J

Rapporteuer:

Adv. N Bassingthwaighte

Swanepoel, J

Mr G Nepaya

Adv. R Totemeyer SC

Adv J Schickerling

Adv. H Geier

Adv. Kobus Miller

Mr R Mueller

Mr Mark Kutzner

Adv E Schimming – Chase

GENERAL COMMENTS

1. Generally, there is consensus that JCM should be implemented. The group

agreed that matters must be allocated to a specific judge who will deal with

those matters until they are finalized. The current procedures are

counterproductive.

2. A concern was expressed on the exchange of affidavits/sworn statements

before trial. Several members felt that it is improper to force a defendant who

has had no say in the institution of the proceedings and who does not have

the onus to reveal his defence at this early stage. In response to this concern,

another member expressed the view that the defendant in summary judgment

proceedings already places his defence under oath so the proposal to have

sworn statements would not necessarily affect the substantive law. It is

perhaps time to do away with tactical pleas.

3. The members however agreed that pleadings must be more detailed. The

particulars of claim/statement of claim and plea must be accompanied by all



essential documents relied on by the party. Detailed discovery can take place

at a later stage.

4. Another concern about affidavits is that amendments often become

necessary. A litigant may change legal representatives and may receive a

second opinion. The question is how an amendment is going to be dealt with

when the litigant had already deposed to an affidavit.

5. The result of more detailed pleadings would be that we can do away with

requests for further particulars: This all the members agreed on. The

members all agreed that parties should still be able to request further

particulars for trial purposes. Further particulars at this stage assist in limiting

issues and facilitate speedier resolution of matters.

6. The reason why postponements become inevitable is because procedural

steps in preparation for trial are taken too late in the process and often parties

are unprepared as a result. The group generally agreed that discovery,

exchange of expert summaries and the second meeting with the judge/pre-

trial conference should be held before a trial date is obtained.

7. The members discussed the possibility of specialised divisions. Although

such a system may have some advantages it may not be feasible in Namibia

mainly because it is such a small jurisdiction. One problem is that judges who

are appointed to the Supreme Court eventually will have to deal with all types

of cases and may experience some difficulty. It could also result in unequal

distribution of work.19

8. The members also agreed that there should be sanctions in the case of non-

compliance with Judge‟s directions. For instance dismissal of a case if there

is no action for a specific period. The dismissal could be automatic or on

application by one of the parties.

9. It was suggested that acting judges should deal with the preliminary case

management up to the point of close of pleadings. This judge, who would be

19

In the First Report the Judge President makes the case for limited specialization and that is the route we are going. The judges will be grouped in the Criminal stream and the General stream. Rotation after some time will be considered and the Judge President may assign any other cases outside a stream at anytime to the judges.



the managing judge, can dispose of all interlocutory processes. The matter

can then be allocated to the trial judge after pleadings have closed.

10. Acting judges could be appointed on a rotation basis. They must be informed

of their acting period long before so that they can be prepared (not take

reservations). Appointments can be for a period of 1-2 months. There must

however be an overall managing judge (judge president) who will be the

driving force behind the managing judges.

11. This proposal may be beneficial if one works in ADR in the process. The trial

judge would not become involved in mediation which would avoid the

possibility of bias.

IMPLEMENTATION PHASE/TRANSITION PHASE

12. Firstly, there must be an exercise to determine at what stage the existing

matters are and to work out the dead wood cases. In those found to be dead

wood cases, one of the parties should be able to apply for discharge of the

matter. This will deal with the concern that a matter is not dismissed for want

of prosecution whilst the actual reason is actually that the matter was awaiting

trial.

13. In respect of those that will continue and where the pleadings are closed the

case management should commence with a pre-trial conference with the trial

judge.

14. In respect of matrimonial matters the proposal is that ADR should be

compulsory. A family advocate could be appointed who will make

recommendations to the court. The possibility to incorporate this into the

rules should be investigated because amendment of legislation may take too

long.

RECOMMENDED PROCEDURE

15. Issue of Summons.



16. If no notice to defend – application for default judgment to Registrar/Court

(Motion) as per existing rules.

17. The members agree that case management should start when appearance to

defend is entered. The one suggestion is that at this stage the acting judges

must be responsible for case management in order to alleviate the burden on

trial judges. The other suggestion is to allocate the matter to the trial judge at

this stage already.

18. First meeting with Acting Judge/Managing Judge or trial judge – to discuss

what procedure will apply and what pleadings must be filed at what stage. If

there is already an application for summary judgment at this stage, the judge

will dispose of it first and then, depending on the outcome, will set the

necessary time periods. The parties should be at liberty to agree with the

judge on longer or shorter periods for filing of pleadings.

19. The rules must be very clear on what aspects must be covered and the nature

of the directions the managing judge should give so that it would not be

necessary for the trial judge to have a third meeting with the parties.

20. The second meeting with the judge must take place after close of pleadings,

exchange of discovery and expert summaries. The parties should by then

also have exchanged summaries of the evidence of all their witnesses. The

parties must be present at this meeting.

21. Before a witness is called there must be a full statement of the witness‟s

evidence in chief. The group did not decide on when exactly this must be

done. The statement must then be read into the record and confirmed under

oath. Cross-examination, if any, must then commence.

22. The parties should have the option to submit full statements of their

witnesses‟ evidence and to ask that the judge decide the matter on the

papers.

23. Statement of Claim as opposed to particulars of claim – requires an

amendment of Rule 18 in that the statement of claim may include facts and

evidence.



24. Discovery must be done much earlier, immediately after close of pleadings.

But the process should be flexible in the sense that the parties should be able

to approach the judge for more or less time for purposes of discovery. Expert

summaries must similarly be filed after close of pleadings. The rules to be

amended – Rule 35 and 36.

25. Plaintiff must first file his summary and then the defendant. The two experts

must then come together and attempt to reach agreement on their opinions

and file one report. Another proposal was that the Judge should rather be

able to ask for a report by a third expert/assessor.



PART 5

HOW DO WE APPLY JUDICIAL CASE MANAGEMENT PRINCIPLES IN THE CRIMINAL CONTEXT?

GROUP 4

Chairman:

Liebenberg, J

Rapporteuer:

Adv. Gerson Hinda

Siboleka, J

Mr B Basson

Mr W Christian

Adv M Imalwa

Mr V Mbauurua

Assistant Commissioner

Tsuseb

Ms N Tjahikika

The issues for consideration and discussion in respect of the above question

emanates from the recommendations on page 72 of the report by the Honourable

Judge-President titled Promoting Access to Justice in the High Court of Namibia

ISSUES:

(a). Codified plea bargaining.

(b). Streamlining of criminal pre-trial hearings.

(c ). Creation of Separate criminal roll & encouraging specialization by judges.

(d). Management of the trial.



Codified plea bargaining

It is suggested in the report that the PG considers approaching the Minister of

Justice to enact primary legislation to codify plea bargaining in Namibia. The

benefits of plea bargaining is that it may shorten the criminal trial, narrow the areas

of dispute and impact on sentence. We support the introduction of formal pre-trial

bargaining and suggest that the PG‟s office be the initiator of the process but that

legal practitioners and other stakeholders are adequately represented. We are of

the view that legislation awaits an investigation.

Streamline criminal pre-trial hearings

We agree that the intended purpose of pre-trial hearings is to curtail the length of

trials as well as to shorten the proceedings. To that end we support the move to

reorganize the criminal pre-trial roll into the Mentions roll and the Pretrial Review roll.

The further suggestion is that a formal conference be held between State and

Defence counsel between the period of the pre-trial mentions and pre-trial reviews

with the view to curtail triable issues. If at that conference, the accused admits to the

offence, that a section 112 statement be prepared and submitted at the pre-trial

review stage. This requires an amendment of the practice directives.

Duty to disclose defence

We raised, considered and discussed whether there is a need to introduce legislative

change in order to oblige an accused to disclose the basis of his defence and to

what extent. There is consensus that an accused should disclose the nature of his

defence as well as what he places in issue.

We propose that an appointed task team consider to what extent would compelling

an accused to disclose his defence infringe the rights to fair trial and against self-

incrimination.



Separate criminal roll and encourage specialization of Judges

We support the notion of specialized criminal courts and suggest that judges

assigned to hear criminal matters should have a degree of specialization and

experience in criminal law.

Appeals

It is a concern that appeals take too long to be heard and concluded. It is suggested

that clerks responsible for the preparation of appeal records at both the Magistrate‟s

Court and the High Court be trained in the prober preparation of appeal records.

A special additional report by Liebenberg, J.20

PROPOSALS ON HOW TO APPLY JUDICIAL CASE MANAGEMENT

PRINCIPLES IN THE CRIMINAL CONTEXT

1 Any proposed changes must be considered against the backdrop of an

accused‟s right not to incriminate him/herself and to be given a fair trial (Art 12

(1)(a) and (f) of the Constitution). It is by now a well established principle in

this jurisdiction that an unrepresented accused must be informed of certain

rights prior to and during a criminal trial, in order for him/her to make an

informed decision on issues relevant to the trial; and that failure to do so,

would generally be regarded as an irregularity, vitiating the entire proceedings

in cases where it can be said that the accused was not given a fair trial, as a

result thereof. [Comment: It seems to me that from the warning extended by

the arresting officer and any subsequent „warning/explanation‟ given to an

accused during the investigation; as well as by the court during the trial, that

an accused has „the right to remain silent‟, does not correctly reflect the true

position, as the Constitution in Art 12 (f) merely refers to persons not

compelled to give evidence against themselves – something different from the

20

I had a discussion with Liebenberg J after Midgard on case management in the criminal context and how we are going to implement it in Windhoek and Oshakati during the recently introduced pre-trial review procedure. I found his views during our discussion very instructive and asked him to write it down for inclusion in this report.



„right to remain silent‟. It would certainly be in conflict with any later attempt

by the trial court to encourage an undefended accused to disclose the basis of

his defence and identify the issues in dispute. As the warning is aimed to

comply with the Constitution, the correct explanation should be given to the

accused from the outset. If this view finds favour, it would be necessary to

bring the difference between the „rights‟ explained to an accused, to the

attention of arresting and presiding officers.]

2 Plea bargaining

As far as it concerns conviction, there has always been under common law

some form of “plea bargaining” between the State and defence counsel.

Whatever the agreement between the parties, it would not involve the

presiding officer, who is at liberty to impose any suitable sentence upon

convicting the accused. The sentence that would follow a conviction based

on “plea bargaining” does not come into the equation and at most the State in

its submissions can indicate to the court what it considered to be an

appropriate sentence. The court however, is not bound thereby and is at

liberty to impose any sentence which in its view, would be suitable. From

what we (the discussion group) understand, plea bargaining is also directed at

sentence for that would be the only benefit to an accused if he knows that a

“limited” sentence would be imposed. These limitations are usually enacted in

a Penal Code in which there is a correlation between the sentence and the

facts on which the accused is convicted. In such an instance the discretion of

the sentencing court is limited to impose the sentence prescribed in the Code.

Part of plea bargaining is the role played by the presiding officer. In the South

African context the presiding magistrate/judge is approached (in writing) prior

to the trial with the plea and the proposed sentence and if he/she is satisfied

with the proposition made to the trial court, then proceedings will be

conducted along those lines. If he/she is not open to the sentence proposed,

the parties are accordingly informed and advised to agree on a sentence

more in line with what the court has in mind. This situation brings about that

the trial court, even before the accused has pleaded, has prior knowledge of

the admissions the accused is willing to make and on that basis, the court has

already expressed a view what sentence it deems appropriate. This might

result in the recusal of the presiding officer if the accused decides thereafter

to plead not guilty and put the State to task to prove its case against the

accused. This procedure would require legislation.

[Comment: Plea bargaining would obviously be applicable to the lower courts

and in this jurisdiction there are several magistrates‟ courts with only one

magistrate. Therefore, with the recusal of a magistrate it would obviously



cause logistical problems and have financial implications to bring another

magistrate to that court. It would not have the same effect in the High Court

where there are more than one judge available at any given time.]

3 Distrust among counsel

What emerged in the group discussions is that there seems to be a situation

of distrust and poor communication between State and defence counsel which

directly impacts on the manner in which the trial is approached. This situation

should be looked into and addressed at forums available to both sides i.e. the

Criminal Justice Forum and the Law Society‟s Criminal Committee. Counsel

must realise that they are officers of the court and have a joint responsibility to

work towards the proper administration of justice.

4 Section 115 of CPA

Adv. D Small is of the view that the only manner in which the court could elicit

from an accused what his defence is and whether he was willing to identify

the issues in dispute, is through s 115 of the CPA; which would be after an

accused has pleaded and the court is seized with the matter. Where the

accused pleads not guilty during s 119 proceedings, s 122 (1) in imperative

terms states that the (magistrate‟s) court shall act in terms of s 115. Where

the accused has pleaded guilty but the court is not satisfied with the plea, the

magistrate shall record in what respect he is not so satisfied and after noting a

plea of not guilty, deal with the provisions of s 122 (1) (applying s 115). Adv.

Small is furthermore of firm belief that an accused person cannot be forced by

the court (at Pre-trial stage) to either disclose the basis of his defence or to

identify issues in dispute as the CPA does not make provision for such

procedure.

[Comment: S 115 does not in imperative terms state that the court must

obtain an accused‟s defence or identify issues in dispute. It reads that the

court “may ask him whether he wishes to make a statement indicating the

basis of his defence”(s 1); “may question the accused in order to establish

which allegations in the charge are in dispute” (s 2(a)); and “may … put any

question to the accused in order to clarify any matter raised … and shall

enquire from the accused whether an allegation which is not placed in issue

by the plea of not guilty, may be recorded ….” There are several rules of

practice compelling the presiding officer to issue certain warnings to the

unrepresented accused i.e. (i) That he is under no obligation to make a

statement indicating the basis of his defence; (ii) That the accused is under no

obligation to answer questions put to him by the court under s 115 (2)(a).

Thus, if an accused elects to remain silent, there is indeed no provision in the



CPA to oblige an accused to disclose the basis of his defence or identify

issues in dispute.]

5 Practice Directions

In view of the limited powers given to a trial court ito s 115, concerns were

raised as to Practice Directions currently in practice in the High Court and

whether these do not infringe on an accused‟s rights when tested against the

Constitution? There was consensus that, only when an accused is willing to

disclose the basis of his defence and identify issues in dispute, it would not

infringe on his rights.

[Comment: It goes without saying that the courts would therefore heavily rely on defence counsel – after having consulted with the accused and with the necessary instruction – to disclose the accused‟s defence and identify the issues in dispute. If an accused refuses, there is nothing more the court can do.]



GROUP 5

Chairperson: Shivute, J

Rapporteuer: Ms P Daringo

Botes,AJ

Namandje, AJ

Mr J Wessels

Adc C Mostert

Adv D Small

Mr Hengari

Commissioner R Malobela

TASK:

Identify problems we encounter

Identify any legislation that needs to be amended, repealed or enacted, as the case

may be.

Make recommendations where appropriate

Issues Raised

1. Section 119 of the CPA

In terms of sec 119 of the CPA the group recommended that section 119 be

amended to make it a mandatory provision i.e. the word “may” to read “must”.

the problem identified was the compelling of the accused to disclose the basis of his

defence – immediately after disclosure is made.

with respect to an unrepresented accused person, the group pointed out that the

court has an obligation to warn such an accused against the risk of self-incrimination.



it was also raised as a concern that regarding disclosure, even to an unrepresented

accused person, disclosure must be availed as soon as possible.

The Group was aware of the problem of compelling disclosure of accused defence in

relation to Article 12 of the Namibian Constitution.

The above is also applicable to sec 115 of the CPA.

Plea Bargaining

Although not part of our law, the group felt the need to introduce plea bargaining.

it was recommended that the provisions in the South African law on plea bargaining

be considered.

the group felt that research by a consultant and or role players could be done with a

view to adopting a similar provision in our own legal system.

Too many cases being referred to the High Court

The group noted, with concern that too many cases were being referred to the High

Court which could in fact be heard in the Regional Court.

It was recommended to appoint additional Regional Court Magistrate‟s to help deal

with some of those cases.

It was pointed out that the jurisdiction of the Regional Court in criminal cases was

adequate to handle such cases

It was recommended, in this regard to engage the Prosecutor General‟s office in

order to ensure success on this issue.

Jurisdiction

The group identified as a major issue the absence of clear divisions regarding where

a case will be heard in respect of criminal cases to be heard in the High Court.



It was suggested that there be clear guidelines and information regarding the place

of trial, whether Windhoek or Oshakati High Court.

Legal Aid as a stakeholder has an interest on this issue for purposes of appointment

of counsel, where legal aid is granted.

Delays in availing the pre-trial roll for cases coming up for pre-trial

While the mentions roll and pre-trial review proceedings recently introduced are

aimed at addressing this very issue, it was noted that not all legal practitioners

appearing in the High Court understand its operation as yet.

It was also pointed out that although the circular concerning the mentions roll and

the pre-trial review proceedings had been availed to legal practitioners, some may

not yet have seen it.

It was recommended to avail the roll at least 3 weeks before the actual hearing to

enable matters of legal representation of accused persons to be fully attended to – in

relation mainly to the Directorate: Legal Aid.

Role players are Legal Aid, PG‟s office & Registrar‟s office.

Section 213 of the CPA21

21

213 Proof of written statement by consent (1) In criminal proceedings a written statement by any person, other than an accused at such proceedings, shall, subject to the provisions of subsection (2), be admissible as evidence to the same extent as oral evidence to the same effect by such person. (2)(a) The statement shall purport to be signed by the person who made it, and shall contain a declaration by such person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willfully stated in it anything which he knew to be false or which he did not believe to be true. (b) If the person who makes the statement cannot read it, it shall be read to him before he signs it, and an endorsement shall be made thereon by the person who so read the statement to the effect that it was so read. (c) A copy of the statement, together with a copy of any document referred to in the statement as an exhibit, or with such information as may be necessary in order to enable the party on whom it is served to inspect such document or a copy thereof, shall, before the date on which the document is to be tendered in evidence, be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the statement being tendered in evidence under this section.



The section deals with handing up by agreement of statements of issues not in

dispute.

The group noted that this section was not being made full use of, and because of

that issues that are not in dispute still found themselves being part of the trials and

Uncertainty as to the pre-trial reviews

while the purpose of the procedure is to fine tune issues that are in dispute, it was

suggested that perhaps the Honourable Judge-President might need to explain to

(d) If a party objects under paragraph (c) that the statement in question be tendered in evidence, the statement shall not, but subject to the provisions of paragraph (e), be admissible as evidence under this section. (e) If a party does not object under paragraph (c) or if the parties agree before or during the proceedings in question that the statement may be so tendered, the statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (f) When the documents referred to in paragraph (c) are served on an accused, the documents shall be accompanied by a written notification in which the accused is informed that the statement in question will be tendered in evidence at his trial in lieu of the State calling as a witness the person who made the statement but that such statement shall not without the consent of the accused be so tendered in evidence if he notifies the prosecutor concerned, at least two days before the commencement of the proceedings, that he objects to the statement so being tendered in evidence. (3) The parties to criminal proceedings may, before or during such proceedings, agree that any written statement referred to in subsections (2) (a) and (b) which has not been served in terms of subsection (2) (c) be tendered in evidence at such proceedings, whereupon such statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (4) Notwithstanding that a written statement made by any person may be admissible as evidence under this section- (a) a party by whom or on whose behalf a copy of the statement was served, may call such person to give oral evidence; (b) the court may, of its own motion, and shall, upon the application of any party to the proceedings in question, cause such person to be subpoenaed to give oral evidence before the court or the court may, where the person concerned is resident outside the Republic, issue a commission in respect of such person in terms of section 171. (5) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section, shall be treated as if it had been produced as an exhibit and identified in court by the person who made the statement. (6) Any person who makes a statement which is admitted as evidence under this section and who in such statement willfully and falsely states anything which, if sworn, would have amounted to the offence of perjury, shall be deemed to have committed the offence of perjury and shall, upon conviction, be liable to the punishment prescribed for the offence of perjury. [a51y1977s214]



the legal practitioners how the procedure operates, as well as outline the benefits of

the procedure.22

22 We have already separated the mere mentions from the actual pretrial review process in an effort to give effect to paragraph 35 of the Consolidated Practice Directions which state: ‘’ Setting down of criminal cases and pre-trial hearings 35. (1) Subject to subparagraph (2), the Prosecutor-General sets down criminal cases for first appearance in the High Court on a date arranged with the Registrar. (2) The first appearance in any criminal case will be for conducting a pretrial hearing or for the Court to make a direction in terms of subparagraphs (6), (7) and (8). (3) The Court conducts the pre-trial hearing to curtail duration of the trial by timeously enquiring into and giving directions concerning the following matters: (a) the delivery to the accused of the indictment and any further particulars thereto; (b) the discovery of the police docket’s contents by the prosecution; (c) the appointment of a legal representative by or for the accused and whether such legal representative, if not instructed by the Director: Legal Aid, has been placed in adequate funds to represent the accused during the trial; (d) the notification of the trial date to the accused and requesting his or her presence and, if he or she is younger than eighteen years of age, that of his or her parent or guardian at the trial; (e) the plea that the accused intends to tender at the trial; (f) the limitation of disputes likely to arise during the trial; (g) the admissions the accused intends to make at the trial; (h) the number and availability of witnesses for the prosecution and defence; (i) the need for, and availability of, interpreters; (j) the estimated duration of the trial; 19 (k) the need for any direction under sections 77(1) or 78(2) of the Criminal Procedure Act, 1977 [Act 51 of 1977] ( hereinafter referred to as the “CPA”; and (l) the enquiry into any other matter that, in the opinion of the presiding Judge, may curtail the duration of the trial. (4) If an accused is presented by a legal practitioner- (a) The prosecution may deliver to the accused and the Registrar not later than 10 days before a pre-trial hearing a pre-trial memorandum containing in sequential order each factual allegation that it wishes the accused to consider for purpose of making an admission at the trial and the presiding judge may refer to such memorandum during the pre-trial hearing when he or she enquires whether the accused intends to make any admissions at the trial; (b) the accused may deliver to the prosecution and the Registrar not later than ten days before a pre-trial hearing at a pre-trial memorandum containing in sequential order factual allegations he or she makes in his or her defence and which he or she wishes the prosecution to consider for purpose of indicating whether it intends to take issue therewith at the trial and the accused may refer to such memorandum when he or she considers the extent of corroboration required to establish such an allegation at the trial. (5) If, in the opinion of the Court, the parties have not dealt with all the matters referred to in subparagraph (3) in a satisfactory manner at the first or at any subsequent pre-trial hearing, it must, if possible, postpone the pre-trial hearing to the earliest subsequent pre-trial date until the following have been recorded: (a) that the indictment and, if requested, any further particulars thereto have been delivered to the accused; 20 (b) that the contents of police dockets have been discovered by the prosecution to the accused; (c) whether a legal representative has been engaged by or on behalf of the accused, and, if so, the name of that legal representative and whether the said legal representative has been placed in adequate funds to represent the accused during the trial, if such legal representative has not been instructed by the Director: Legal Aid; (d) whether the prosecution and the accused have agreed a trial date and the accused has been informed of such date; and (e) whether the accused is prepared to record-



it was suggested to do the same with the Mentions roll.

(i) the plea he or she intends to tender at the trial and, if guilty, whether the basis on which the accused intends to tender such plea, will be acceptable to the prosecution; (ii) the admissions, if any, he or she intends to make; and (iii) if applicable, the basis of his or her defence and the particulars thereof; (f) the number of witnesses the accused intends to call and, if he or she is in custody, whether he or she requires assistance in securing the presence of those witnesses at the trial and, if so, the names and physical addresses of those witnesses; (g) the language is that the witnesses are likely to testified in and, if any language other than English is likely to be used, whether an interpreter is available for the purpose; (h) whether the prosecution and the accused have agreed on the period to be set aside for the trial and whether an adequate number of days have been set aside for. (6) Where the accused indicates in the course of a pre-trial hearing that he or she intends to plead guilty to one or more or all of the charges preferred against him or her, the prosecution may indicate to the Court whether or not 21 the plea of guilty on the basis as tendered by the accused is accepted by it, and, if so accepted, the Court may direct that the case be disposed of either on the pre-trial hearing roll or on a date or dates allocated for that purpose; (7) If at any time before the trial date, the accused wishes to plead guilty on any or all of the charges, he or she must forthwith inform the Prosecutor- General of his or her intention to do so and on the basis on which the plea is tendered, in which event either the accused or the Prosecutor-General may, upon no less than 10 days’ notice to the other, set the case down for hearing on the first available date for criminal pre-trial hearings to be dealt with as if the accused has given such indication during a pre-trial hearing in terms of Subparagraph (6). (8) If it appears to the Prosecutor-General that due to- (a) the age of a child witness; (b) the deteriorating physical or mental health of a witness; (c) the availability of a witness when he or she is not ordinarily resident in Namibia and the material nature of the evidence to be given by him or her; or (d) the contemptuous nature of the offence and the public’s interest in the administration of justice or for any other good cause in the public interest or in the interest of the security of the State, the hearing of a criminal case should be expedited, he or she may, with a leave of the Judge-President, set the case down on the first available pre-trial date or, if not possible, on any other appropriate date. (9) The Court may direct that the matter be placed on the roll for trial if- (a) the accused and the prosecution agree that the case can be disposed of more expeditiously by dealing with it in that manner; (b) upon the application of either the prosecution or the accused at the pre-trial hearing, the Court is satisfied that, regard being had to the 22 limited nature of the facts in issue, the availability of witnesses and the expected duration of the trial, the case can be disposed of more expeditiously by dealing with it in that manner; or (c) it is a matter referred to in sub paragraphs (6), (7) or (8) hereof. (10) The Court must set down the matter for trial on dates arranged with the Registrar- (a) and confirmed by the Court on completion of the criminal pre -trial hearing referred to hereinbefore; (b) as directed by the Court in terms of subparagraphs (6) or (7); or (c) with the leave of the Judge-President, in respect of matters set out in paragraph (8). (11) If, at any time before the trial date, either the State or the accused intends to apply for the postponement of the trial, he or she must forthwith notify all other parties in the case and set the application for a postponement down on the first available date for criminal pre-trial hearings or on the trial date - whichever is the earlier. Evidence being led: the practice was noted to be time wasting as well as creating an unnecessary burden on legal costs – such as to the Directorate: Legal Aid or even accused persons funding their own legal representation. it was suggested that legal practitioners and prosecutors make use of the provisions of section 213 of the CPA.



Accused persons being arrested and placed on remand unnecessarily

In respect of certain white collar crimes, particularly corruption and fraud, accused

persons are being arrested who are not flight risks and placed on remand for lengthy

periods until their financial resources are exhausted.

It was recommended that other means of securing and bringing accused persons to

court should be used. It will also lessen the financial burden that may be caused on

the Directorate: Legal Aid, as such accused persons may be in a position to fund

their own legal representation, but of course when their resources are exhausted,

they are forced to rely on legal aid.

Findings of the Honourable Judge-President’s Report – page 72

Create a separate criminal roll with dedicated judges; generally encourage some

form of specialization.

while the group agreed with the recommendation, they suggested that a rotation of

such judges be introduced, to avoid monotony.

Plea bargaining – this has been discussed above.

Prosecutor-General to consult Judge-President on long cases

The group suggested that the Prosecutor-General should also engage other

stakeholders such as the Directorate: Legal Aid owing to the fact that over 80% of

the criminal cases in the High Court be funded by the Directorate: Legal Aid.

the reason for the above was the costs implications created : such as reservation

fees where cases are postponed at the instance of the Prosecutor-General‟s officers.

the group agreed with the recommendation that except in exceptional circumstances,

cases should not be set down for a period exceeding 30 days.

Streamline criminal pre-trial hearings

the group agreed with the recommendation by the Honourable Judge-President.



in addition, the group suggested that while the State is able to request for further

particulars, such privilege should also be availed to the accused person.

it was noted that where there is no evidence implicating an accused person the State

must be compelled to provide evidence on which the accused is being implicated.

an open door policy between the State and the Defence is recommended and

encouraged.

it was noted that where the State fails to provide such evidence during the mentions

roll, the defence should ask for the charges to be quashed.

Stakeholder buy-in

The group discussed the court‟s involvement during pre-trial review proceedings,

whether it was proper for the Court to take an active role, or whether it should

maintain an armchair approach



PART 6

ALTERNATIVE DISPUTE RESOLUTION AS AN INTEGRAL PART OF JUDICIAL CASE MANAGEMENT

GROUP 6

Chairperson:

Collins Parker, J

Rapporteuer: F Köpplinger

Ueitele, AJ

Ms I Aggenbach

Adv B van der Merwe

Mr B-M Shinguadja

Mr D Conradie

Adv Hendrik Kotze

Adv Willie Pienaar

Methods of Alternative Dispute Resolution discussed:

Arbitration,

Conciliation and Mediation

Group agreed that arbitration not to play role in court based Judicial Case

Management System. Arbitration should remain voluntary as an alternative.

Arbitration has the tendency of being as formalistic and time consuming as judicial

proceedings. It would be replicating judicial proceedings.

Conciliation and mediation is a process by which an independent third party is

brought in to assist the parties to reach an agreement through negotiation. It is



effective because the mediator is focusing on underlying interests of parties, as

opposed to their defined legal positions.

Conciliation, itself, is proposed to be a shorter less expensive and informal process

at the start of proceedings to determine the nature and extent of the dispute, and

possible early settlement.

The introduction of compulsory court-based conciliation and mediation signifies an

important change in the way the litigation is conducted. Parties may no longer

engage purely in an adversarial manner, but are now required to engage in a bona

fide manner with each other to explore settlement, prior to gaining access to Court.

The group was of the opinion that a voluntary scheme does not work, as experience

elsewhere indicates.

In order for mediation to be quickly adopted, a wide education program is necessary.

This should extend to:

The general public – and specifically entities who generally engage in litigation. They

should understand that a new process is in place, that it holds costs savings

benefits, and that it requires of them to engage constructively towards settlement

The legal profession. The profession needs to understand how mediation works,

what their role in the process is when they represent parties, and for those who are

interested, how to qualify as mediators

The Bench. The Bench needs to have a full understanding of the mediation process

and what is required of parties during this process. It is up to the bench to ensure

that parties engage in a bona fide way in this process (i.e. through punitive costs

orders against litigants / lawyers who do not participate).

It is proposed that compulsory conciliation and mediation be introduced, substantially

based on the following mechanism:



Conciliation

After a matter becomes defended, and before any further exchange of pleadings,

compulsory conciliation must take place with strict time limits in order not to cause

unnecessary delay in the general litigation process.

Provision should be made for a specific „agenda‟ to be used by the conciliator

including for example issues to be addressed.

During such conciliation, an accredited mediator (not a judge) should endeavour to

settle/resolve the dispute and, if unsuccessful, to narrow issues in dispute.

In the event that the matter is unresolved, the conciliator will file at court a

Conciliation Certificate indicating the name of the Conciliator, the parties who

attended names of representatives and the outcome (failed or settled).

Although still early in the JCM process, the Conciliator, where applicable, may

indicate on the certificate any agreement reached such as to the narrowing of issues

in disputes.

If conciliation fails to resolve dispute and upon a conciliator‟s certificate being filed,

normal filing of pleadings proceeds in terms of the JCM process. If conciliation

succeeds the conciliator must file a settlement agreement to be made an order of

Court.

Mediation

After close of pleadings, exchange of expert notices and full discovery and exchange

of documents, compulsory mediation must take place. Documents not discovered

shall not be used.

At this stage, a fully trained and accredited mediator must attempt to settle the

dispute between the parties and limit the points in dispute.

Once again, provision should be made for a pro forma fixed „agenda‟ to be used by

the mediator.



Such agenda should include most, if not all, issues to be addressed at a Rule 37

meeting.

Attempts to limit the issues in dispute and curtail proceedings are an integral part of

the mediation.

At the conclusion of the mediation, the mediator must file Mediation Certificate

containing the outcome and agreement on the points in dispute that have been

identified.

After the filing of the Mediation Certificate, the relevant JCM to take place

(replacement for current Rule 37 conference). The agreements reached on issues

during mediation would be of immense value and assistance.

Only then can parties obtain court dates.

Allocation of Conciliators/Mediators and Costs

For Government support and buy-in is required for compulsory court based

mediation to work. This needs to be made practical through budget allocation to

support the process.

As conciliation and mediation will be compulsory and form part of the judicial

process, the cost thereof should be carried by the Ministry of Justice. The budget

allocation should be supported by a cost analysis to determine the cost saving effect

of mediation.

The Ministry can make provision for limits on the fees of conciliators and mediator.

The Registrar of the High Court will be custodian of the process and allocate the

identity of the conciliator and mediator, from a compiled list with authority to delegate

such functions to an accredited service provider(s).

Internationally the preferred route is to use professional mediators who are not in the

employ of the Court, but who are affiliated with recognized mediation service

providers.



The service providers take contractual responsibility to the Court to deliver the

mediation service in accordance with agreed service levels and fees.

Internationally recognized standards and processes do exist for the training and

certification of professional mediators, and also for enforcing the generally accepted

code of conduct

Capacity needs to be developed so that there is:

One or more mediation service providers in Namibia that can assist with the

administration of the mediation process (it is unrealistic to expect the Registrar‟s

Office to also engage in this administration)

A body of qualified and accredited mediators who can provide the service.

Persons to be included on the list should have received training in conciliation and

mediation, based on international standards for accreditation

Time period of implementation and Mechanism

i) Changes can be done easily and quickly.

ii) Would substantially only entail Rules of the High Court to be changed by

Judge President, to cater for insertion of conciliation and mediation meetings.

The changes can be effected as prelude to amending the Rules to provide for

Judicial Case Management.

The Group could not see that this process would be an affront to High Court Act and

the Namibian Constitution.

Proposed draft rules are attached to be considered for further discussion. A flow

diagram is also attached.



Conciliation and Mediation: A Draft Court Rule 37B

For purposes of this Rule a “Mediation Officer” shall be a person or persons

appointed as such by the Minister, in accordance with the provisions of the High

Court Act.

Section A: Conciliation Proceedings

The Registrar shall upon receipt of the Notice of Intention to Defend (in the case of a

summons) or the Notice of Intention to Oppose (in the case of an application), refer

the matter to a Mediation Officer for a conciliation meeting.

Upon receipt of such a referral the Mediation Officer shall ensure that:

A date and time and venue for the conciliation meeting is determined

A conciliation meeting notice is served

A conciliator is appointed to facilitate the conciliation.

During the conciliation meeting:

The conciliator shall:

Explain the nature and the purpose of the proceedings to the parties;

Assist the litigants to understand the likely future course of their litigation, as well as

the possible financial consequences thereof;

Request the parties to discuss possible means of settlement of the dispute, including

the following:

An informal exchange of documents and information

The immediate appointment of a mediator to facilitate settlement

Mechanisms for narrowing the areas of the dispute.



Where the parties are in agreement that a postponement of the meeting may

facilitate a settlement of the dispute, they may postpone the meeting for no more

than 20 days. The conciliator shall minute the reasons for the postponement, the

actions required to be taken by each party during the period of the postponement,

and the date by which each action is to be taken. At the reconvened meeting, and in

the absence of a settlement, the parties may agree on a further postponement, or to

proceed in terms of clause (d) below.

In the event of any agreement, the terms thereof will be recorded and signed by the

parties, and the Mediation Officer shall file a copy of such agreement with the

Registrar;

Where the parties fail to settle the matter at the conciliation meeting, the conciliator

shall certify that the matter has failed to settle and the Mediation Officer shall file a

copy of such certificate with the Registrar;

The counting of the dies in terms of the Rules of Court shall be suspended from the

date on which the Notice of Intention to defend or to oppose is delivered, until the

conciliator certifies that matter has failed to settle.

Section B Mediation Proceedings23

The Registrar shall upon a matter being entered on the continuous roll [in other

words when all exchange of pleadings, witness statements/affidavits, discovery,

expert notices, etc have been exchanged] refer it to the Mediation Officer for

mediation.

Upon receipt of such a referral the Mediation Officer shall ensure that:

A date and time and venue for the mediation meeting is determined

23

Concern was expresses that under our law there is no statutory protection given to mediators against the requirement to give evidence in a court of law on matters that occurred during the mediation. It is possible in civil proceedings for the parties to agree that the proceedings are conducted ‘’without prejudice’’. It is important to therefore consider legislation to shield mediators from being compelled to testify in court proceedings as confidentiality is crucial to successful mediation. The consensus was that given that privilege is part of the substantive law, creating a new privilege for mediators can only be done by primary legislation and not through the rules of Court. This explains why the proposed rule by the Group to create a new privilege was excluded.



A mediation meeting notice is served

A mediator is appointed to facilitate the mediation. The parties may by agreement

request the Mediation Officer that a named mediator be appointed. Where possible

the Mediation Officer shall adhere to such a request.

At the mediation:

The mediator shall:

Explain the nature and the purpose of the proceedings to the parties;

Require the parties to consider the settlement of the dispute.

In the event of any agreement, ensure that the terms thereof is recorded and signed

by the parties, and the Mediation Officer shall file a copy of such agreement with the

Registrar;

Where the parties fail to settle the matter at the mediation meeting, the mediator

shall certify that the matter has failed to settle and the Mediation Officer shall file a

copy of such certificate with the Registrar;

The Registrar will only allocate dates for trial as contemplated by Rule 37(1) to

matters where mediation proceedings have been completed.

In the event that the parties have subjected their dispute to mediation with a qualified

mediator, and such proceedings have terminated within three months before its

enrollment on the continuous roll, the parties may by agreement request the

Registrar not to refer the matter to mediation.

Referral by Presiding Judge

A Judge presiding in any matter may at any time, on application or mero motu,

instruct the Registrar to refer the matter to the Mediation Officer for a conciliation

meeting or for mediation proceedings.

Where a Judge so instructs the Registrar, the Judge shall also make an appropriate

ruling regarding the further conduct of the matter.



Attendance at Proceedings

All conciliation meetings and mediation proceedings shall be convened at premises

not more than 5 km from the seat of the Court.

All parties shall be required to attend conciliation meetings and mediation

proceedings in person. Where the litigant is a legal entity, these proceedings shall be

attended by a person properly authorised to take decisions regarding the settlement

of the matter.

All parties shall be available for a minimum period of 2 hours for conciliation meeting,

and 4 hours for mediation proceedings.

These proceedings may be attended by legal representatives of the parties, provided

that no more than the cost of one such representative shall be allowed on taxation.

Where any party fails to attend these proceedings in person:

The proceedings shall be postponed to a date that is between two and four weeks

hence;

The wasted costs, including the costs of the Mediation Officer, shall be paid by the

party who did not attend, and may be taxed on the scale of attorney and own client.

Such costs shall be taxable and recoverable immediately;

Where the defaulting party again fails to attend a postponed meeting in person, the

other party shall be entitled without any further notice to apply for default judgment or

for dismissal of the action or application.

The presiding Judge may take into consideration the circumstances leading to the

default and make such order as he deems appropriate.



PART 7

INFORMATION TECHNOLOGY

GROUP 7:

Chairperson:

Elsie Schickerling

Rapporteuer:

Eileen Rakow

Tommasi, J

Mr Mike Yap

Mr George Chan

Mr Peng Chew

Mr Gim Ong

Ms A Zaaruka

1. Instructions: Identify IT needs in the High Court and develop a Strategy for

implementation in a modern court system applying judicial case management.

2.Objective (as per page 66 of the JP‟s report): The Registrar should develop an IT

strategy for the Court that will facilitate the implementation of the proposed reforms

so as to avoid paper-based filing and retrieval of court documents becoming a drag

on the effective functioning of court processes.

3.The following the requirements as set out on page 67 of the JP‟s report is agreed

with regard to Civil case management, was elaborated on and should include:

Any IT system used for civil cases should allow for the electronic filing of

summonses, pleadings and all other “party” documents. It should specifically cater

for e-filing from a remote site and by the creator as far as possible to reduce possible

data mistakes.



The ability to assign and maintain all documents lodged by the parties to a specific

case or electronic case file. It should therefore be possible for any of the role players

to view all the documents filed in any given case from a main source electronic file.

This electronic case file should be accessible to all parties to the specific case,

judges and court personnel as the need may be. This should be regulated by

specific access modules for e.g. unique password log-on etc.

There should be digital authentication technology in place to ensure the integrity of

documents and electronic signatures.

Electronic/online payment facilities should be built into any electronic court

management system

A service point should be available at all courts to allow litigants who do not have

access to the electronic case management system, use of the system.

It should further allow for a national database where all data are stored and archived.

4. Taking the above guideline into account, our group also took cognizance of the

following:

Currently Namibia are ranked 4th in terms of enforcing contract indicators.

(www.doingbusiness.org) this is an indicator under the Word Bank Doing Business

Report and a bench mark used internationally. The position that the legal sector

therefore contribute in the overall national competitiveness should be kept in mind

when developing any case management system. The immediate short-term goal is

to be number 1 in Africa and to become a reference model for the rest of Africa. (the

bigger picture must not be lost)

Any implementation of a case management system must go hand in hand with the

development of an IT system. The needs of the legal sector must be catered for and

not only the needs of the High Court.

The transformation from the litigant driven to a judicial case management (JCM)

(BPR) system must be done together with the design of an IT system. The case

management system changes must keep computerization in mind.

http://www.doingbusiness.org/



It is not IT needs but business process needs that is important. In order to do this the

business needs must be identified 1stand not the other way around. Very important

to clearly understand the needs in order to properly develop the requirements of an

IT system. A holistic approach seems to be applicable here. In the experience of

CrimsonLogic, the needs from country to country change and therefore need to

address unique requirements – an off-the-shelf programme will not be a solution as

you then build your management system around an IT programme and it should

actually be the other way around.

Further agreed that any IT system cannot run on the current government network or

be supported by the IT section of the Ministry of Justice. It is further necessary for

the security and integrity of the stored data that it is preferably done by an agency

outside government. This might give some comfort to the non-government role

players regarding the data storage. This should include dedicated resources

including IT infrastructure(servers, back-up servers, networks, etc) exclusively

assigned for the running of an electronic system for the High Court

Any IT system should take cognizance of the locational and infra-structure problems

unique to an African set-up that might be experienced. The not always reliable

provision of electricity and the braking down of hardware must be covered in a

proper disaster recovery plan and it must be possible to work around the electronic

system when necessary. The possibility of making electronic services available at all

the Magistrates‟ courts where the High Court system porthole should be

investigated. This will allow for wider access of services to the general public.

Any IT system that is installed should allow for local capacity building and local

support

It is recognized that the acquiring and developing of an electronic system is only a

small part of the actual e-service roll-out. A well informed society is a decisive

society. A specific communication plan and information sharing plan should be in

place to allow for sharing information with the stakeholders and users as well as the

general public. This should be a continuing process and allow for a two way

conversation where all the role-players are allowed to give their input as well as raise

their concerns.



The options of “smart partnerships” with e.g. the Law Society must be investigated.

The term referred to is PPP – Public Private Partnerships. Other funding options

should also be investigated. A government –to – government agreement is also a

possibility.

The costs involved in the acquiring of such a system will be huge and the possibility

to contribute to the paying of these costs by way of channeling some of the costs to

the users should be investigated. It is generally felt that court fees in this regard can

be increased. The Singaporean suggestion that service centers are made available

where parties will be assisted by employees of the Registrar‟s office to file their

documents and pleadings but against paying a higher fee that what is charged for

“normal” e-filing.

It is further important that any IT system must have benefits to the users and not

amount to a duplication of work for e.g. that the electronic process saves time.

It is of utmost importance that the 1st step that is taken is to move away from analog

to digital recording. A further necessity is a proper stenography service in order to

do the transcription of the case record as the case take place in court. It is

suggested that the viability to move away from out-sourced stenography services to

an in-house service provided by the Registrar‟s office should be investigated. This

would entail creating the necessary posts on the current establishment and

capacitating these persons to do this type of recordings. This also create the

possibility of collecting revenue as litigants pay for a record if they request it to be

typed as well as pay for their copies.

The system should allow for the filing of exhibits and affidavits. In Singapore

affidavits are signed and scanned in and made tamper proof. (cannot be changed)

The implementation should follow a phased approach. Not one of the 1st phases but

as part of the eventual vision, technology courts (video conferencing) must for part of

the development. This will reduce costs.

The 1st phase development will allow for civil case management. When the scoping

is done, the protection of current investments must also be taken into account.

Strategy:



CrimsonLogic will be in the process of drafting a high level scoping document that

will be ready by the 20th of October 2010.

Comprehensive feasibility study

Realized that the following is very important:

GRN Leadership is Key

Strong Government Mandate is Necessary

All stakeholders in legal fraternity must be on-board

Process rationalization is foundational

Mass Adoption Drive – public buy-in; focus high volume user, get users to use it

Change-management necessary

Envisioned legislative/rule changes:

Recognizing both electronic source documents and “hard copies” as source or

authentic documents – legislative change. It is suggested that you do not change

your current legislation but just passed legislation that recognize the electronic

source documents and make it applicable to all documents.

The rules should allow for electronic filing as well as electronic viewing of these in

court.



PART 8

PLENARY: FOCUSSED DISCUSSION

Prepared by Adv Raymond Heathcote SC and Advocates Schimming Chase

and Schneider – Waterberg under the direction of Muller, J.

This is a report on the issues discussed at plenary session relating to the report

backs from the rapporteurs of the different groups. The reports have already been

typed and their contents will not be dealt with in the plenary report.

ISSUES ON WHICH CONSENSUS HAS BEEN REACHED

Group 6 - ADR

Plenary is broadly in agreement with the proposals made and consensus

reached by group 6. There was concern though about whether under the

current legislative framework we could merely by amending the rules make

ADR compulsory.24

Groups 1, 2 and 3-Civil Reform

Judge driven JCM through case allocation to a specific judge needs to be

implemented and adopted through a phased approach together with a

deadline for implementation25

Private practitioners must cooperate if JCM is to be properly implemented

24

The Judge President intends to make proposals to the Minister and the Law Reform Commission to create the necessary legislative framework. In the interim it is proposed to make ADR voluntary under the Rules. 25

The Judge President has already assigned drafting task teams to begin drafting the new Rules. It is hoped that the comprehensive draft will be available for distribution and comment before the end of the first term, 2011. The new regime should come into force no later than the end of third term, 2011.



ADR should form part and parcel of JCM, preferably after filing of a notice of

intention to defend/oppose

Status hearings should be part of the JCM procedure

Additional permanent judges should be appointed.26 All permanent judges

should have their own registry with the necessary support staff

Acting judge appointments should continue and be phased into JCM

Under the JCM cases with no movement in a period of 6 months should be

dismissed for want of prosecution either automatically or via application

procedure

The rules of court should be amended to give effect to the JCM procedure

before implementation of JCM to prevent falling into the kind of growing pains

experienced by Botswana

In particular particulars of claim and pleas should contain more detail and

should be supported by documentation/annexures to be relied upon

Discovery and the exchange of joint expert notices and summaries should

take place much earlier, preferably before, or immediately after close of

pleadings. The provision for the calling of assessors, if necessary should be

incorporated.

Witness statements (form and time for filing to be decided) should form part of

the new procedure under JCM

Special pleas, interrogatories and pleas of prescription should be dealt with

during pre- trial by the judge to whom the case has been allocated, and

should be pleaded in the body of the new statement of claim or plea

Requests for further particulars before plea should be abolished. Requests for

trial particulars should be maintained.

26

The Judge President is of the view that there is enough budgetary scope at the moment to appoint as many judges (acting as well as permanent to deal with the demands of JCM.



Rule 37 should be amended to include the judge to whom the matter has

been allocated, with a provision for what pleading should be filed by then and

when, and with a provision for further directions by the managing judge

Interlocutory proceedings, such as rule 30‟s and exceptions should be

streamlined, either by doing away with them, or requiring them to be pleaded

and dealt with at pre trial stage. There was consensus that fees chargeable

for interlocutory process must be capped

High Court Rules and practice Directives should be harmonized.

Divorce action and other family law matters should be streamlined into a

faster and more conciliation -based procedure, e.g. the introduction of a

Family Advocate such as is practiced in South Africa.

A Case Record Management system should be in place to go hand in hand

with JCM, and should be implemented timeously for JCM to be properly

operational

Divorce litigation should also be revamped to reduce the procedure for

divorce cases.

The issue of long waiting time in respect of set downs for appeals must be

addressed as well as the delay in judgments.

There was concern that as more cases are disposed in the High Court there

would be more and more appeals to the Supreme Court and that delay in

delivery of judgments by the Supreme Court would frustrate the new JCM

system.

Criminal Groups 4 and 5

The relationship between opposing sides in a criminal matter must be

improved if the criminal case management process is to be properly

implemented



The obvious mistrust between these opposing sides should also be

addressed

Additional qualified magistrates should be appointed so that the High Court

workload is decreased

The possibility of amending section 119 as part of criminal case management

should be discussed and debated at the Criminal Justice Forum chaired by

the Prosecutor General

The possibility of plea bargaining as a general practice to be undertaken early

in criminal case management should also be discussed and debated at the

Criminal Justice Forum.

Both prosecutors and defence legal practitioners should attend the Criminal

Justice Forum where these issues can be discussed and debated in full, with

a view to reaching consensus on what procedures should be adopted for

purposes of successful criminal case management and a reduction in

backlogs and delays

Group 7 – IT

There was general consensus on the recommendation made by the IT group

in their written report. CrimsonLogic is going to conduct a scoping study to

give effect to the deliberations of the workshop.

ISSUES WHICH NEED TO BE FURTHER DEBATED/DISCUSSIONS

Group 6 - ADR

Query was raised re the costs of ADR. The model developed in SA is that

normally professionals in private practice provide that service at professional

fees, calculated at half a day. Exact amount is not available but it is less than

the normal professional fee. Costs are effectively reduced with this model



An important issue for further discussion is whether conciliation and mediation

should be compulsory or not.

If compulsory it should be government driven, and the Ministry of Justice

should make a budget allocation for this

If matter referred to mediation, what about the judge‟s power? Is the judge no

longer driving the process? Judge should not get involved in conciliation from

day 1. Involvement of judge can be accomplished through consultation with

the Registrar, who should be in control of the ADR process

How long will the arbitration process delay the court process since we want to

expedite entire litigation process? There should be strict time limits on

mediation process. For example, conciliation meeting should take place within

10 days from date matter defended as a prerequisite. Full mediation should

be held within 30 days from the date that parties inform that mediation will

take place. Idea is to complement JCM. Initial conciliation to take place before

ICMC (initial case management conference) with strict time limits

Is conciliation still a prerequisite with regard to prescription and urgent

matters? Conciliation will take place after summons issued. That takes care of

prescription.

In many matters, the conciliator is subpoenaed to testify on what occurred

during the ADR proceedings, and he is requested to indicate what happened.

How is this dealt with in practice? In some instances the mediator is called to

testify in SA, and no privilege is attached to the contents of his testimony.

There should be provision made in the law so that this is prevented. It was

noted that changing the rules as to privilege with regard to the mediator

should be done under substantive law and not under Court rules.

As regards application proceedings, it is envisaged that compulsory

conciliation should also take place after notice to oppose filed in application

proceedings.



Groups 1, 2 and 3 – Civil Reform

It was noted that caution must be exercised not to make litigation more

expensive. Simple Summons should for example still be provided.

Initial case management conference must be held by the judge to whom the

matter is allocated to determine dates for filing of pleadings. The ADR process

should take place prior to the initial conference. Initial allocation of a case

could be undertaken through acting judges, and the trial judge could become

involved in the second case management conference. Suggestion was

therefore that two judges are involved in case management.

It was suggested that acting judges should attend to status hearings and roll

call and weed out the “dead wood”.

It is important in JCM to involve the client as soon as possible.

With regard to support staff, should the candidate attorneys not also do a 3 or

4 month training period with the judge to assist with research etc? Could the

law society not help?

It was suggested that pupils instead of candidate attorneys be used as judge‟s

clerks because they are already admitted and don‟t have to be paid. Also the

perception of a candidate later appearing ad an admitted practitioner before

the same judge was mentioned as being problematic

Disagreement with doing away with exceptions was raised. It was responded

that all interlocutory proceedings should be done away with but an exception

can still be raised in the plea or in a special plea which can be dealt with

upfront, effectively not doing away with exceptions but dealing with it in a

different way. The Managing judge should therefore also be able to deal with

Rule 30‟s

Also a suggestion that a managing/trial judge should deal with and dispose of

interlocutories and unopposed matters, either in chambers or during brief

court sessions where directions can be given as to the further conduct of trials



It was suggested that a limited fee be charged for some interlocutory

applications such as Rule 30‟s for example, and that the fee should be

formally capped so that interlocutory applications do not become

unnecessarily expensive. In this way people would not be too hasty to file

unnecessary interlocutory applications, which the court is inundated with.

The issue of how to deal with lay litigants was not given full attention

Discovery may be in issue because sometimes it may be in the hands of a

third party who in essence cannot be subpoenaed until date of trial, so it was

suggested that the relevant legislation be emended to cater for subpoenas to

be issued for motion court instead at hearing of trial

It was suggested that as part of the JCM procedure, no litigant shall be

entitled to trial date unless counsel or attorney certifies that discovery is

exhausted

Minority view that judge who presides over pre trial conference should not

preside at trial.

Concern expressed about forcing defendant to state his case at pre trial stage

when he has no onus27

Can discovery not be done electronically?

If we want to shorten period we must bear in mind that some appeals in these

matters are not affected and that the appeal procedure also need to be

protected. Therefore appeal court judges should also be brought into the

picture

27

As I understand it, this concern is predicated on the maxims of our law: ‘’ Actore Non probante, reus absolvitur; and Actori incumbent onus probanti’’: If the plaintiff fails in his proof, the defendant is absolved . The plaintiff is required under our law to advance sufficient proof to establish clearly his own right. Until he does so the defendant cannot be required to refute it.In the two groups I attended, based on this principle, the view was expressed that requiring the party sued in an action to provide witness summaries of his case at the time of pleading might offend against this principle of the law. There was an equally forceful counter argument that this concern does not explain, for example our summary judgment and provisional sentence procedure where the person sued is required to disclose his defence upfront and even runs the risk of being held responsible for the payment of a debt without being heard. I have taken not of the concern and in devising the rules we will address this concern.



Undesirability of specialization in relation to judges is not agreed with. Difficult

to assign criminal cases to a judge to manage and then assign other matter to

the judge. Idea is to create a specialized criminal division, so that specially

assigned criminal judges can deal with those cases. Specialized bench will

increase speedy judgments.

If acting judges are appointed to deal with case management, suggestion that

those status hearings be held in front of the acting judge from 18:00-20:00 in

the evenings

Suggestion that each judge should have a secretary as well as a court clerk.

The issue of funding and computerization of JCM system was not discussed

in depth but should be discussed with the Ministry of Justice and the Law

Society at some stage

Groups 4 and 5 Criminal Case Management

Mr Wessels was asked to report on issues relating to section 119 of the CPA

and article 12 of the constitution. Main problem is that the wording referred is

that an accused person “may” disclose his defence at a certain time. Section

difficult as it leads to delays. Suggested that an amendment of section 119 be

made to read “an accused must disclose the basis of his defence”. According

to Wessels this does not infringe an accused‟s rights to be presumed

innocent, but rather emphasizes it.

Question was raised what happens if accused refuses to plea, since he also

has a constitutional right to remain silent?

Concern raised that discovery/disclosure never takes place in practice at the

119 proceedings in any event

Additional issue is that people should not be indicted until such time that the

matter is ready to go to trial

Issue raised that an accused‟s appearance should not only be secured by

arrest. There should be other means especially is there is no flight risk



Ethics of prosecutors raised, with suggestion that ethical guidelines be laid

down for them

Qualified person to assist police in investigation of serious cases to curtail

duration of trial

Failure between prosecutor and defence counsel to play open cards.

According to defence, the attitude of prosecutor is “let court decide”. Which

does not take the matter any further. On the other hand PG advised that

there is usually an indictment and a summary of substantial facts, yet defence

counsel does not come to the table in spite of that, with the result that the trial

is unduly delayed because there is no attempt to narrow the areas of dispute.

When defence counsel asks prosecutor which witness is going to be called,

the prosecutor responds that the defence already has a summary in his or her

possession. Result is that defence after a particular witness has testified

applies for a postponement because s/he was not aware that the witness was

coming to testify. This also unnecessarily delays the trial

It was raised that the mistrust between opposing sides should be addressed

at the Criminal Justice Forum

Concern expressed in relation to codified plea bargaining is the long delay in

the enactment of new legislation. A possible interim solution is that plea

bargaining should be resorted to as a matter of general practice. Can this not

be introduced?

PG indicated that she would look into the issue of plea bargaining

Other alternatives outside section 119 should also be discussed and

introduced as part of criminal case management

Section 213 should also be utilized more effectively as part of criminal case

management

Suggestion that formalized proceedings should be adopted as part of case

management similar to a rule 37 procedure where parties can decide what

issues of fact to admit or deny to curtail the process.



Group 7 –IT

Does a feasibility study still have to be done? Would that not hold up the

process of introducing JCM? Responded that we should be cautious of what

we buy so we can scope the whole content to determine the costs. One of the

reasons why smart partnership is suggested is because it could be done

outside government. The actual needs should be documented. It is more of a

requirements gathering than a feasibility study per se. This exercise should

also include the Supreme Court

There is an ongoing process in the Ministry of Justice to ensure the

implementation of the relevant IT in line with JCM

It was clarified that the feasibility study related more to how the whole process

should be established. Recommendation is to look at it from a holistic point of

view so the right mechanism and vehicle can be used

It was indicated that the system can be run without automation for a year or 2

from the side of justice, and the process should not be delayed

Recommended that in phasing out, it would merit consideration to file heads

of argument in electronic format after the written heads are filed. This is

already done in the Supreme Court and facilitates speedier judgment writing

Computerizing a manual process is difficult. Any development of a software

program starts with business process engineering. This process is important

to properly establish transformation from a civil litigant driven process to a

judicial case management process.



DRAFTING TASK TEAM VOLUNTEERS:

At the request of the Judge President, each discussion Group nominated volunteers

who will assist the Judge President in preparing the new Court Rules for the

implementation of JCM. The Prosecutor General also nominated two persons.

Adv. Raymond Heathcote

Ms. Tabitha Mbome

Adv. Andrew Corbett

Adv. Gerson Hinda

Adv. Jesse Schickerling

Mr. Hosea Angula

Adv. Geoffrey Dicks

Adv. Reinhardt Totemeyer

Adv. Harald Geier

Adv. Essie Schimming- Chase

Mr. Bradley Basson

Mr. Jan Wessels

Ms. Ilse Agenbach

Mr. Hengari

Ms Toni Hancox

Mr. Frank Kopplinger

Mr. Shafimana Ueitele

Adv. Kobus Miller

Adv Daan Small

Adv O Sibeya



LEVERAGING IT BYCRIMSONLOGIC: SCOPING STUDY PRESENTATION – 13TH OCTOBER 2010

Agenda

Vision & Objectives

Summary of Findings

Recommendations

Journey to eJudiciary

Budgetary Costing (for Phase 1)

Questions & Answers

SCOPING STUDY

Vision & Objectives

Modernize Judiciary Process

• Improves Quality & Efficiency

Capacity Building & Adoption

Accessible & Timeous Justice for Al

Vision:

To be a model provider of accessible & timeous justice for all

Mission of Judiciary

Provide Quality Judicial & Legal Services

SUMMARY OF FINDINGS

Registrar of High Court

Procedure is paper-based; process and filing is systematic



Registration is manual (entry in physical books) and involves many steps

Cumbersome process to location files –no way to quickly determine “where” is the

file

Physical storage space is a growing concern

Scheduling of cases is challenging

Generation of hearing list is manual; daily roll is generated on the day of the hearing

Manual maintenance of diaries

Put in place floating rolls to gather “suggested” hearing dates from practitioners, fix in

fixed roll

Lack of access online resources (JutaLaw). CD not updated, but switching to online

subscription

Legal Aid

Current process is manual

Physical filing from districts are sent to HQ for approval

There is no form of tracking of the applications at all

Unable to track whether an individual has impending (or multiple) applications for

Legal Aid

Does not get regular updates from courts (outcome of hearings, case status)

Lawyer is dismissed

Case is appealed

Applicant has another case

No visibility on Legal Aid applications

During filing, or as the case progresses, Court does not always know if any of the

case‟s parties had applied for legal aid

Master of High Court

Not receiving “Court Orders” from registrar‟s office in time

Reliance on paper documents



Physical correspondences need to be filed between applicants/liquidators & Master‟s

office

Documents are often misplaced or misfiled

Storage space is a growing concern; wills are to be stored “forever”

Storage space cannot be reused/recovered

Unable to proactively track the applications, and know the extent of the backlog

Unable to generate accurate statistics or reports, when required

Information Technology

An IT strategy plan is currently being planned out for the next 2 years

IT team does not practice specialization of skill-sets

Most of them are “jack of all trades”

IT Infrastructure needs upgrade

Network infrastructure (LAN & WAN connectivity) is erratic

No IT redundancy

Lack of IT governance in support & operations

Backup strategies are executed on ad-hoc basis

Virus protection for computers and servers are not up to date

No monitoring on servers‟ health

Lack of training plans to upgrade individual‟s skill-sets; does not promote knowledge

sharing within the team

Government Attorney

Functions just like any other law firm (summons are served on them)

Unable to track cases; some have gone unnoticed

Have a primitive form of electronic case tracking using MS Excel with limited

functionality

Desperate need for a Practice Management System to track and assign cases,

generate statistics and manage diaries electronically



Prosecution General Office

Strong reliance for physical dockets (investigation case files from police)

Physical storage required

Important files (i.e. evidence) are not properly kept in secured areas (i.e. strong

rooms)

Scheduling for trial dates is manual

No visibility on available dates

Unable to track and monitor cases assigned (i.e. prosecutors‟ workload)

Legal Advice

Needs access to all courts‟ judgments

Needs to manually track and record citations (annotations) of all cases mentioned in

the judgments; for research purposes

Strong need to have an one stop online legal research portal that consolidates

information like :-

Regulations

Acts

Ordinances

Rules of Court

Previous Judgments

Legislation Drafting

Manual registry for requests

No versioning of legislation documents

Dependant on hardcopy dissemination to communicate with the related ministries

and departments

Unable to track the status of requests

Updated copy of all regulations, ordinances and acts is not available collectively



Summary of Findings

Court Procedures

•Significant time required for case turn-around due to manual process

•High dependency on physical storage; increased need for storage space due to

increasing demand

•Significant time required to locate case file and concerns of lost or damaged

documents

•Cumbersome effort to schedule hearings

•Challenges in accessing real-time operational performance statistics for analysis

and decision making

Information Technology

•Established infrastructure support and upgrade strategy to adopt new technologies

•Needs plans to address key organization concerns e.g. Disaster Recovery

•Needs for standardization of operating environment

•Lack of specialization and knowledge sharing within team

•Lack of policies and documentations

Users‟ Wish List

•Easy and fast access to case information

•Faster case turn-around time

•Minimize number of hearings

•Earlier notification of hearing dates

•Need for online legal research

SCOPING STUDY

Recommendations – Court Procedures



Findings

•Significant time required for case turn-around due to manual process

•High dependency on physical storage; increased need for storage space due to

increasing demand

•Significant time required to locate case file and concerns of lost or damaged

documents

•Cumbersome effort to schedule hearings

•Challenges in accessing real-time operational performance statistics for analysis

and decision making

Recommendations

•Introduce electronic filing system to capture filings electronically

•Implement electronic case management to monitor and track cases

•Introduce eCalendaringservices to manage and schedule resources

•Introduce Business Intelligence capabilities to gather and provide real-time

statistical information in single dashboard view

Recommendations –Information Technology

Findings

•Established infrastructure support and upgrade strategy to adopt new technologies

•Needs plans to address key organization concerns e.g. Disaster Recovery

•Needs for standardization of operating environment

•Lack of specialization and knowledge sharing within team

•Lack of policies and documentations

Recommendations



•Put in place a holistic IT plan and roadmap to ensure plans are aligned with

organizational objectives i.e. Case Management

•Reorganize IT department to ensure specialization of skill-sets and knowledge

sharing

•Identify and outsource key areas that IT department is currently unable to support

i.e. hosting internet applications

•Put in place policies to ensure proper documentations, operation governance and

support handling (i.e. ticketing system for support issues)

Recommendations –Users‟ Wish List

Wish List

•Easy and fast access to case information

•Faster case turn-around time

•Need for case management within Law Firms, Government Attorneys & Prosecutors

•Earlier notification of hearing dates

•Need for online legal research

Recommendations

•Introduce Electronic Filing System to easy access to filing information

•Introduce pro-active case tracking in CMS

•Introduce Practice Management solutions that can potentially be integrated with

EFS for seamless filing

•Implement a Legal Research portal that aggregates contents from various sources

for research

SCOPING STUDY




EJudiciaryReadiness Map

Users‟ Readiness

Critical

Management Dashboard

Digital Court Transcription

Electronic Case Filing

E-Hearing

Courts Case Management

Quick Wins

Informational Portal

Online Judgment & Hearing List

Start Planning

Integration with Other Agencies

Practice Management System

Tech Court

Legal Research

Digital Archival


Digitization



•Moving from paper-centric to electronic process

•Automate Court Administrative Process

•Human capability development

Optimization

•Implement lawyer centric services i.e. legal research, practice management

Transformation

•Implementation of Tech Court

•Digital Pen, Video Conferencing

•Digital Archival

•Integration with internal/external system

Proposed Road Map

Digitization

•Phase 1-EFS & CMS for High Court & Supreme Court –Civil Cases

•Phase 2-EFS & CMS for all districts and all cases

•Phase 3-Legal Research

•Phase 4–Practice Management System

•Phase 5–Technology Court

•Phase 6–Digital Archival & Integration

18 months

Budgetary Costing for Phase 1

Phase 1 Budgetary Costing

(Upfront)S/No

Items Cost (USD)



1 Programme Management Office

(PMO)

a)Mass Adoption & Communication

Plan

b)Business Process Reengineering

c)Knowledge Transfer & Capacity

Building

$800,000

2 Electronic Filing System (EFS)

2a System Development $700,000

2b Infrastructure Setup* $350,000

3 Case Management System (CMS)

3a System Development $800,000

3b Infrastructure Setup* $550,000

4 Digital Transcription Services $800,000

Total $4,000,000



PART 9

THE LEGAL PRACTITIONER’S DUTIES IN JCM28

‘‟AN ADDRESS TO THE READERS OF THE BAR PRACTICE COURSE,

BRISBANE

WEDNESDAY, 24 FEBRUARY 1999

JUDICIAL CASE MANAGEMENT AND THE DUTIES OF COUNSEL “

The Hon Justice Kenneth Hayne

There are many cases about the duties of counsel. You can find cases about the

duties of counsel not to make unfounded allegations 29 . You can find cases about

the duties of counsel not to bicker in court 30 . You can find cases about the

difference between discourtesy by counsel and contempt of court 31 ; and so the list

might go on. All of them are important and I hope that you will give attention to them

all. Today, however, I want to mention one relatively recent case in which statements

are made about the duties of counsel and attempt to draw out some of the issues

that judicial case management presents for counsel.

In Ashmore v Corporation of Lloyd's 32 Lord Templeman said that:

"The parties and particularly their legal advisers in any litigation are under a duty to

co-operate with the court by chronological, brief and consistent pleadings which

define the issues and leave the judge to draw his own conclusions about the merits

when he hears the case. It is the duty of counsel to assist the judge by simplification

and concentration and not to advance a multitude of ingenious arguments in the

hope that out of 10 bad points the judge will be capable of fashioning a winner. In

nearly all cases the correct procedure works perfectly well. But there has been a

28

This is a speech of an Australian Judge accessed on the website of the High Court of Australia at http://www.hcourt.gov.au/speeches/haynej/haynej_bris.htm 29

Strange v Hybinett [1988] VR 418. 30

Hufer v Kinross Milk Transport Pty Ltd & Ors , unreported, Supreme Court of Victoria, 30 April 1970 at 218-219 per Newton J R v Keeth , unreported, Supreme Court of Victoria, Court of Criminal Appeal, 5 October 1989 at 6-7 per Crockett, O'Bryan and Gray J Beevis v Dawson [1957] 1 QB 195 at 201 per Lord Justice Singleton 31

Ogden v Lewis (1984) 153 CLR 682 32

[1992] 1 WLR 446 at 453; [1992] 2 All ER 486 at 493



tendency in some cases for legal advisers, pressed by their clients, to make every

point conceivable and inconceivable without judgment or discrimination."

All members of the House who sat in this case agreed in Lord Templeman's speech

but Lord Roskill emphasized what Lord Templeman said about the duties of

practitioners. Lord Roskill said: 33

"In the Commercial Court and indeed in any trial court it is the trial judge who has

control of the proceedings. It is part of his duty to identify the crucial issues and to

see they are tried as expeditiously and as inexpensively as possible. It is the duty of

the advisers of the parties to assist the trial judge in carrying out his duty. Litigants

are not entitled to the uncontrolled use of a trial judge's time. Other litigants await

their turn. Litigants are only entitled to so much of the trial judge's time as is

necessary for the proper determination of the relevant issues."

Similar statements of the duties of practitioners can be found in a number of

Australian cases at trial and at intermediate appellate level 34 but for present

purposes, it is convenient to refer to what is said in Ashmore. You will see that their

Lordships make two points: first that the judge, not the parties, is in charge of the

case, and secondly that those who appear for the parties are bound to help the judge

to get to the real point of the case as quickly as possible.

These points will have increasing relevance to practice in the courts and it is as well

that those about to embark on a career practicing in the courts should consider how

they are to apply them. Judicial case management is now the norm in the superior

courts. The judges seek to control the proceedings in their progress towards trial

and, increasingly, at trial. The days when the courts were seen as passive tools

controlled wholly by the litigants are days that are past. As Gleeson CJ said in State

Pollution Control Commission v Australian Iron & Steel Pty Ltd 35:

"The courts of this State are overloaded with business, and their workload has, over

a number of years, increased at a greater rate than any increase of the resources

33

[1992] 1 WLR 446 at 448; [1992] 2 All ER 486 at 488 34

See, eg, Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 at 744 (citing from Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd , unreported, Supreme Court of Victoria, Full Court, 8 April 1988); State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493-494 per Gleeson CJ. 35

State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493-494 per Gleeson CJ.



made available to them. The inevitable consequence has been delay. This, in turn,

has brought an increasing responsibility on the part of judges to have regard, in

controlling their lists and cases that come before them, to the interests of the

community, and of litigants in cases awaiting hearing, and not merely to the

concerns of the parties in the instant case. The days have gone when courts will

automatically grant an adjournment of a case simply because both parties consent to

that course, or when a decision to grant or refuse an adjournment sought by one

party is made solely by reference to the question whether the other party can

adequately be compensated in costs. There are a number of Practice Notes issued

in relation to the business of the Supreme Court making that perfectly clear. The flow

of cases through the courts of this State is now managed by the judiciary, and not

left to be determined by the parties and their lawyers."

Rules of court enable (perhaps even require) judges to take a more active role in

controlling the pace of litigation both before and during trial. Rules have always

provided for the times within which interlocutory steps may be taken but more and

more we see the enforcement of compliance with these times passing from the

parties to the judges. No doubt judges have always had some powers to prevent

time wasting at trial. And rules permitting the separate trial of questions have been

commonplace for many years. Judges have, therefore, always had powers that

would permit them to control the course of trial of an action. What seems to be

changing is the willingness of the judges to use the powers they have had for a long

time to control the course of trial and the addition of extra powers to do so. Thus, we

now see rules of court that enable a trial judge to limit times for cross-examination

and other steps in the course of trial36 . It may be that a trial judge has always had

those powers but the making of a rule of court seeks to put the matter beyond doubt.

All of these changes can be seen as being driven by the fact that there is too much

litigation for the courts to deal with by older, more passive, methods. Whether this is

a necessary or sufficient reason for introducing the various changes that have been

made in the different jurisdictions in this country or are about to be made in England

and Wales following the Woolf report is a paper in itself. I do not stay to examine

those questions. For present purposes, what matters is that it is inevitable that those

36

the Adversarial Process in Civil Litigation", (1995) 69 Australian Law Journal, Part I - 705-730, Part II - 790-821, particularly at 805-810; Ipp, "Managing the Trial Process", a paper delivered at the Litigation Reform Commission Conference, Civil Justice Reform: Streamlining the Process , 6-8 March 1996 at 1-3.



who practice in the courts, particularly advocates, will be immediately affected by

these changes and will have to adapt to deal with them.

Lest there may be some doubt about it, I should say at once that I consider the

adoption of case management techniques inevitable and, on the whole, desirable. I

think we must recognize, however, that there are dangers in the courts seeking to

take control of what is the parties' litigation. Judges and practitioners must always

bear steadily in mind that they are there to serve the needs of the parties, not the

parties to serve the needs of the courts. But if all who wish to have their disputes

resolved by the courts are to be given reasonable access to the system, the courts

cannot afford to be simply passive observers of what parties do. Every case that

takes too long to try, every case that is not ready to proceed at the appointed time,

affects other litigants who wish to have their disputes decided by the courts.

It is axiomatic that no person should undertake litigation of any kind unless, first,

there is some defined objective in doing so, and secondly, that objective is

reasonably attainable. If the client is not confronted with those questions and if they

are not answered affirmatively, that client should not be litigating37 . And those

questions must be asked again and again as the litigation goes on and more

information becomes available to the client and to the advisers. The answers that

should be given to the questions I have mentioned may very well change.

Judicial case management has important consequences for practitioners. To my

mind, the most important consequence is that it should remind practitioners that,

before they take any step in litigation, they must ask fundamental questions of the

same kind as the questions that affect whether proceedings should be started and

continued. Thus before taking any step in a proceeding, the practitioner must ask

why am I taking this step? What is it that I hope to achieve? Is the objective

reasonably attainable? Is it worth the time and the money? And the answers that the

practitioner can give to these questions are answers that the practitioner may later

have to justify.

37

Applying these precepts to criminal litigation may seem difficult; the accused has no choice about starting the case. But similar questions must be asked about how the case is to be conducted. It may well be easy to justify a plea of not guilty by saying that the crown must prove its case but if the proof is overwhelming, is that a sufficient reason? If there is to be a trial is it necessary to have every witness called? And so the list goes on



To explain why it is so important to consider the matters I have mentioned, it is

necessary to understand why judicial case management has been adopted. We can

accept that the courts have a role in managing litigation brought by parties only if we

have first decided that to deprive parties of the control of their litigation is a

necessary step and that it is a necessary step because the needs of justice require

it. If we have decided that case management is a necessary step to take, it follows

inevitably that orders will be made which curtail the rights of parties to conduct the

litigation as they would wish. In particular, orders will be made that prevent a party

taking some step in an action - often for no greater reason than that the step is to be

taken beyond the time allowed for it38. Whether to make such an order may well

present a set of difficult problems for the judge. Why should the party be shut out? Is

default on the part of a practitioner reason enough to shut a party out of pursuing an

important step in the litigation? Is case management being used as a discipline for

the legal profession or is it being used to advance the interests of justice? What are

the relevant interests of justice - justice between the particular parties or between

users of the courts more generally? How are these latter interests to be balanced?

Once an order is made that prevents a party from pursuing the litigation as that party

(or its advisers) would wish, how are those advisers to explain to the party

concerned what has happened? If the advisers have not met a time limit, why is that

so? What is the explanation that is to be offered in such a case other than mea

culpa? Putting aside cases of default, if a party is to be shut out from pursuing some

step (like full discovery of documents or administering interrogatories) for some

reason other than default in meeting a time limit, why is that order to be made?

Parties will seldom, if ever, be satisfied if they are told no more than that an order

has been made. Why has the order been made? To explain that to the client, the

adviser must know why the step was to be taken. If the adviser does not know what

was to be achieved by taking the step and has not sought to put those reasons

before the judge managing the case, the adviser has little hope of explaining to the

client why that step has been foreclosed by order. And if the step in question had no

38

e, eg, Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 at 744 (citing from Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd , unreported, Supreme Court of Victoria, Full Court, 8 April 1988); State Pollution Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493-494 per Gleeson CJ; Ketteman v Hansel Properties Ltd [1987] 1 AC 189; Ashmore v Corporation of Lloyd's [1992] 1 WLR 446; [1992] 2 All486. Cf Sali v SPC Ltd (1993) 67 ALJR 841; 116 ALR 625; Jackamarra v Krakouer (1998) 72 ALJR 819 at 824-825; 153 ALR 276 at 283-284; Macquarie Bank v National Mutual (1996) 40 NSWLR 543; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.



identifiable and reasonably attainable purpose, what business was it of the adviser to

be seeking to pursue it?

Practitioners face more difficult questions when courts impose limits on time spent in

court at trial. We all know that the best advocates have a considerable ability to go

straight to the heart of a case, put the most persuasive arguments in support of it

succinctly and logically, and then sit down. But they are the best advocates precisely

because they stand apart from others. Not all counsel will be of that standard. Let me

illustrate the kinds of difficulty that counsel may face by reference to proposals that

counsel should have limited time in which to cross-examine. I see some difficulties in

judges fixing times for the cross-examination of witnesses. I do not know that these

difficulties are insuperable but it is as well to recognize some of them. One must

begin from the premise that a reasonable time for cross-examination will be allowed.

How is that reasonable time to be fixed? Counsel know (or should know) more about

the facts of the case than the judge will ever hear in evidence. Counsel will often

have much more information that affects how to cross-examine a particular witness

than the judge will ever see. Any fixing of time for cross-examination will be done in

ignorance of these matters. It is possible, then, that the imposition of a limit on the

time spent examining a witness may penalize the party for whom that advocate

appears. Is that right? Is it right to penalize a party because the chosen advocate is

not competent? The answer that some offer to these difficulties is that the power

should be reserved for cases of deliberate obstruction, but differentiating between

deliberate obstruction and slow or poor advocacy is not always easy. And showing

that an elaborately planned course of cross-examination did not lead to the result

that counsel may have hoped for, is a long way away from showing deliberate

obstruction of the court's processes.

Again, I do not wish to spend time analyzing these particular questions. Rather, I

want to look at the consequences for practitioners of the existence of powers of this

kind. Their most basic consequence is that the fundamental questions remain. Can

you explain why you want to follow a particular path in court? Do you know what it is

you want to achieve by doing so? Is what you want to achieve reasonably

attainable? What will it cost in time, and therefore money, to achieve it? If the

practitioner cannot answer these questions, he or she will not be able to persuade

the judge that the proposed course should be permitted. And counsel will be unable



to justify his or her conduct of the case when it is questioned after the event.

Questioning the course taken by counsel in a case may well become increasingly

common. It may come in many forms - actions for negligence, proceedings for

professional misconduct, inquiries about whether costs should fall on the practitioner

rather than the party, and so on. All of these will focus attention upon why counsel

followed a particular course.

And in the end, what is being said in Ashmore is that practitioners must be able to

justify their conduct. It is not right "to advance a multitude of ingenious arguments in

the hope that out of 10 bad points the judge will be capable of fashioning a winner"; it

is not right "to make every point conceivable and inconceivable without judgment or

discrimination". Counsel must apply their own judgment and their own discrimination

in pursuing their part in the process of litigation. And they must be prepared to justify

the choices that they make. If they do not apply judgment and discrimination, their

clients suffer and therefore the whole legal system suffers. The system exists for the

determination of the disputes that parties bring to it - no matter whether the party is a

powerful corporation, the state or an individual. It does not exist for the benefit of any

other participant in the process. Therefore the practitioners must be able to explain

why it is that they have sought to use the system in the way that they have and to

justify their use by reference to the needs and interests of their client. No other

justification will suffice.



PART 10

ACKNOWLEDGEMENTS

The High Court owes a special debt of gratitude to the Ministry of Justice for making

the funds available for the holding of the stakeholders conference. Thanks also go

out to Ms Pepsi Phuto of the Botswana Bar for generously setting aside time to come

and share Botswana‟s experiences with us. The Law Society of Namibia was

instrumental in securing the participation of Ms Phuto at the conference: Our thanks

therefore to them, for making that possible and mobilizing so many of its members to

take an interest in the conference. Our thanks also go out to Messrs …of

CrimsonLogic for covering all the distance from Singapore to come and share their

experiences with us. To the Registrar of the High Court and her staff for the excellent

preparatory work without which the conference would not have seen the light of day.

Last but by no means the least, the staff and management of Midgard country Estate

for the excellent facilities put at our disposal. The name Midgard will forever be

associated with JCM.

PARTICIPANTS

1 The Hon. Mr Justice Petrus Damaseb

2 The Hon. Mr Justice Elton Hoff

3 The Hon. Ms Justice Kato van Niekerk

4 The Hon. Mr Justice Louis Muller

5 The Hon. Mr Justice Collins Parker

6 The Hon. Mr Justice Nate Ndauendapo

7 The Hon. Mr Justice Christi Liebenberg

8 The Hon. Mr Justice Johan Swanepoel

9 The Hon. Ms Justice Naomi Shivute

10 The Hon. Ms Justice Marlene Dammert

11 The Hon. Mr Justice Alfred Siboleka



12 The Hon. Mr Acting Justice Pieter Henning

13 The Hon. Mr Acting Justice Louis Botes

14 The Hon. Mr Acting Justice Sisa Namandje

15 The Hon. Mr Acting Justice Shafi Ueitele

16 Ms Elsie Schickerling

17 Adv Dave Smuts SC

18 Adv Raymond Heathcote SC

19 Adv Reinhard Totemeyer SC

20 Adv Susan Vivier-Turck

21 Adv Harald Geier

22 Adv Geoffrey Dicks

23 Adv Jesse Schickerling

24 Adv Andrew Corbett

25 Adv Gerson Hinda

26 Adv Essi Schimming-Chase

27 Adv Natasha Bassingthwaighte

28 Adv Hannah Schneider-Waterberg

29 Adv Beatrix van der Merwe

30 Adv Christi Mostert

31 Adv Kobus Miller

32 Adv Willie Pienaar

33 Adv Hendrik Kotze

34 Adv Martha Imalwa

35 Adv Danie Small

36 Ms Pepsi Phuto

37 Mr Hosea Angula

38 Ms Tony Hancox



39 Ms Tabitha Mbome

40 Mr Charlie Bodenstein

41 Mr Andreas Vaatz

42 Mr Wolgang Pfeiffer

43 Ms Chipo Machaka

44 Ms Charlene Potgieter

45 Mr Richard Mueller

46 Mr Mark Kutzner

47 Mr Winni Christians

48 Mr Jan Wessels

49 Mr Bradley Basson

50 Mr Hengari

51 Mr Frank Kopplinger

52 Ms Ilse Aggenbach

53 Mr Dirk Conradie

54 Mr Steve Katjiuanjo

55 Mr Tousi Namiseb

56 Mr Gabes Nepaya

57 Mr V Mbauurua

58 Assistant Commissioner M Tsuseb

59 Commissioner R Malobela

60 Ms Patience Daringo

61 Mr Bro-Matthew Shinguadja

62 Mr Brian Katjaerua

63 Ms Eileen Rakow

64 Mr Mike Yap

65 Mr George Chan



66 Mr Gim Ong

67 Mr Peng Chew

SUPPORT STAFF

1 Mr Louis Karsten

2 Ms Nelli Tjahikika

3 Mr Joseph Libana

4 Mr Nelson Neidel

5 Mr Immanuel Shikuambi

6 Mr Michael Lubinda

7 Ms Lorraine Izaaks

8 Ms Aune Victor

9 Ms Vannesa Basson

10 Ms Drima Risuro











