HOW would you feel about a judge taking about eight years to deliver a decision on a simple question of whether to grant leave to appeal? And what if the judge concerned is the chief justice, someone who should be setting an example to the new judges he helps to choose? For the people of Namibia, including an increasingly vocal legal profession, it’s not a theoretical question; delayed decisions by its judiciary is a worrying trend.

On January 17, when the judge president of Namibia’s high court, Judge Petrus Damaseb, officially opened the 2012 court year, he acknowledged the problem caused by a number of judges with long outstanding decisions. At that stage there were four judgments outstanding from 2002, four from 2003 and five from 2005. Damaseb mentioned no names, but just a week later the chief justice, Peter Shivute, delivered a decision that had been argued before him on April 30, 2004 – just three months short of eight years before.

In his speech, Damaseb said non-delivery of judgments “seriously erodes confidence in the judiciary” and urged that complaints be reported to the Judicial Service Commission”.

But what should the commission do when its own chairman is among those at fault? Was there anything about that application for leave to appeal to explain why the chief justice took so long to make up his mind?

The case concerned a senior police officer, Karel Theron, who was caught in an undercover police operation, allegedly buying uncut diamonds. He claimed that when he discussed buying the gems with a man who later turned out to be a police informer, he planned all along to have the “seller” arrested.

Although the trial judge expressed doubt about whether this was so, the court concluded that it could not convict Theron. The State decided to appeal against his acquittal, as it is entitled to do under the Criminal Procedure Act, and the prosecution brought an application for leave to challenge the outcome of the trial. It was this application that exercised the mind of the chief justice for eight years. In his decision, handed down last month, Shivute said that when someone asked for leave to appeal it was important to consider whether there were reasonable prospects of success. But he obviously did not have too much of a job deciding this particular question. For, he said, “it is to be emphasised” that even the applicant doesn’t claim that there are “reasonable prospects of success on appeal”.

The most tentative claim by the prosecution was that “there may be grounds of appeal and thus reasonable prospects of success on appeal”. If this was such an easy question to answer, what caused the extraordinary hiatus? In view of the chief justice’s own tardiness, the main reason he gave for refusing the application is almost incredible – he was largely helped to make up his mind because the prosecution took too long to bring the application, without any good reason for the delay. What kind of prosecutorial delay are we talking about here? The law stipulates that an application for leave to appeal must be lodged within 30 days. If you are outside that time, you must apply for condonation and give a good reason for not making the deadline.

In the Theron case the 30 days began to run when he was acquitted on September 13, 2002. The prosecution filed its papers on November 18 that year, just over seven weeks later. The legal adviser for the prosecution, Leonie Dunn, signed an affidavit explaining the delay. She said the record of proceedings in the trial was received more than a month after the court acquitted Theron – at that stage an application for leave to appeal was already out of time.

The cassettes were handed over for transcription the next day; the transcript was returned on November 8 and Dunn received it on November 12. Six days later the papers were filed. Shivute’s response to this was terse: “I am not persuaded that there is a reasonable explanation as to the non-compliance with the time limits.” Perhaps it’s a good thing that the chief justice keeps the prosecution on its toes by applying the law so strictly when it comes to time. But then he has only himself to blame if he is held to these same standards and his own tardiness in matters of time becomes a national scandal.

http://carmelrickard.posterous.com