Home Affairs Minister slammed for negligence in 14-year-old case

A CASE that had its start in the High Court more than 14 years ago is heading back to that court after a split decision that was delivered in the Supreme Court in December.

Even in the annals of Namibian justice, which has been plagued by examples of delayed justice, the case in which Mariental resident Johan van der Berg has been suing the Minister of Home Affairs since May 1994 is unprecedented in respect of the length of time the matter has been pending in court without reaching finality.
It all started more than 16 years ago, when Van der Berg was arrested and charged with illegal diamond dealing after being caught in a Police trap. A vehicle belonging to him was allegedly offered as part payment for the diamonds that he was accused of buying illegally.
A trial in the lower court and two appeals in the High Court later, Van der Berg was judged guilty of attempting to deal in diamonds.
His vehicle was still in Police custody, and when he demanded that it should be returned to him, he discovered that it had been damaged beyond repair while in the care of the Police. Van der Berg then sued the Minister of Home Affairs for damages.
With the Minister or his legal representatives not defending the case, the High Court granted a default judgement in Van der Berg’s favour on August 19 1994. In terms of that judgement, the Minister was ordered to pay Van der Berg an amount of N$130 249, plus 20 per cent interest a year on that amount, for the damages Van der Berg suffered because of the loss of his vehicle, as well as an amount of N$4 000 a month until the larger amount had been paid.
A month later, the Minister lodged an application to have the default judgement rescinded. With an appeal by Van der Berg in his criminal case pending at that stage, the rescission application was postponed indefinitely.
For almost six years the Minister and his lawyers then did nothing to proceed with the rescission application. They were only spurred into action when Van der Berg took the matter back to court in July 2000, when he asked the High Court to have the Minister of Home Affairs – which was Jerry Ekandjo at that stage – locked up in prison for contempt of court for failing to comply with the still valid default judgement of August 1994.
When the Minister and his lawyers then finally tried to defend the matter and have the rescission application reinstated, Judge Elton Hoff ruled in late September 2004 that they had been so negligent in their handling of the case that their new application too had to be refused. This landed Ekandjo in an uncomfortable situation in which he faced the risk of being convicted of contempt of court for something dating back to the time when he was not even yet the Minister of Home Affairs.
An appeal that was lodged in the Supreme Court against Judge Hoff’s ruling has now been delivered. In a split decision, two Judges of the Supreme Court ruled that the default judgement should be set aside and the Minister should be allowed to defend the case that Van der Berg filed more than 14 years ago.
Acting Judge of Appeal Bryan O’Linn dissented from the majority judgement, written by Acting Judge of Appeal Fred Chomba and concurred in by Chief Justice Peter Shivute.
On one issue Acting Judges of Appeal Chomba and O’Linn were in agreement. Judge Chomba stated that he agreed that the Minister’s conduct, in failing to defend the case in the first place and then to pursue the bid to have the default judgement set aside, amounted to ‘inexcusable negligence’. He also agreed with Judge Hoff’s opinion that the Minister’s conduct in regard to the litigation was ‘grossly negligent’.
‘There was undoubtedly a dereliction of its responsibility by the Government Attorney’s office in failing to expeditiously deal with the rescission application,’ Judge Chomba commented.
Despite this negligence, though, the court’s over-riding duty was to do justice between the parties, he stated.
He added that it was his view that in this case the key to doing justice between the parties would be to afford them the opportunity to ventilate the issue that is central to Van der Berg’s claim that the Minister had to compensate him for the damage to his car: whether the law under which he was found guilty of attempted illegal diamond dealing stated that his vehicle, which was used in the offence, was automatically being forfeited to the State.
Judge O’Linn came to a different conclusion.
He stated: ”The Court cannot allow a matter to drag on for decades because (of) the Minister and the administration and its attorney’s ‘inexcusable’ conduct, notwithstanding the resources available to them in a legal dispute with a citizen who does not have those resources available to him or her.
‘To allow such matter to drag on indefinitely and for more than a decade because of such ‘inexcusable conduct’ by such Minister, the administration and the Government Attorney, is the precise opposite of the requirement ‘to do justice between the parties’.’
He also stated: ‘At any event it will be a travesty of justice if a citizen must be prejudiced because the Minister, his Ministry, the State Attorney and the whole bureaucracy with all the financial and other resources available to them, are unable and/or unwilling to act expeditiously when involved in litigation with a citizen.’
The Minister should be held ultimately responsible, Judge O’Linn ruled: ‘The Minister cannot in a case like the present shield to the same extent as ignorant individuals behind the acts and omissions of attorneys, be they wilful or grossly negligent or merely incompetent. Neither can the Minister shield behind the wilful, or grossly negligent acts or the incompetence of the Ministry, because a grave responsibility is placed on the Minister, firstly by the Constitution itself and secondly by the President, the Prime Minister, his colleagues and the people of Namibia.’
While they came to opposite conclusions, both Judges ruled that the Minister should pay Van der Berg’s legal costs in both the Supreme Court and the High Court, where the case should now be returning to once more.
Andrew Corbett, instructed by the Government Attorney, represented the Minister in the appeal in the Supreme Court. Raymond Heathcote, instructed by Johan van Vuuren, represented Van der Berg.