Justice delayed, justice denied

A KEY component of Namibia’s criminal justice system, which is supposed to ensure that mistakes made in the country’s Magistrate Courts are quickly detected and corrected by the High Court, does not seem to be working, a High Court Judge has warned.

Judge Louis Muller issued this warning in two judgements in which he set aside the convictions and sentences that were meted out last year to two men in the Swakopmund Magistrate’s Court. In both cases, irregularities originating from the way in which the presiding Magistrate handled the trial in question, resulted in the accused men not receiving a fair trial, Judge Muller found.For the two accused men, the Judge’s finding and order that their convictions be set aside will come as cold comfort, though.Their cases arrived at the High Court to be reviewed long after the passing of the one-week time limit that the Criminal Procedure Act prescribes for cases to be sent on review.The convictions that Judge Muller set aside are those of Rian Gariseb, who had been charged with assault with intent to do grievous bodily harm and sentenced to six months’ imprisonment after a trial that the High Court has now labelled as unfair, and Graven van Neel, who was convicted of theft in a trial that Judge Muller likewise found had been tainted by irregularities and a miscarriage of justice.Gariseb was convicted on August 12 last year.Van Neel’s trial was concluded on April 5 already.Van Neel’s case arrived in the High Court to be reviewed only a year after it had been concluded.By that time, he would have already served the six-month prison term that the Magistrate sentenced him to, if he did not pay an alternative fine of N$1 000, Judge Muller noted.Gariseb’s case arrived at the High Court for review about a year after he had been sentenced, the Judge also noted.In both cases, the Swakopmund Magistrate blamed the firm responsible for transcribing tape recordings of court proceedings in Namibia, Compuneeds Namibia CC, for the long delays in getting the case records ready to be sent for review.Similar claims of delays being attributed to the slow pace at which the firm prepares and finalises case records have also been a feature in other review cases, the Judge noted.”This is a serious accusation and if true, as it seems to be, the appropriate authorities e.g.the Ministry of Justice and the Magistrates’ Commission have to attend to it urgently in an effort to find a solution which would prevent the undermining of the review system,” he stated in his judgement on Van Neel’s case.If a solution to this problem could not be found, it would have to be questioned whether it was worth retaining the review system – which in the first place was supposed to be designed to pick up and correct failures of justice soon after they had been made in the country’s Magistrate’s Courts – while it did not work, the Judge said.In Gariseb’s case, Judge Muller found that the Magistrate’s handling of the trial, in which he took it upon himself to cross-examine not just Gariseb but also a defence witness to the extent that he basically did the Public Prosecutor’s work, and where he failed to give Gariseb a proper chance to testify in mitigation of sentence or make submissions on the sentence that was to be imposed, resulted in Gariseb being deprived of his right to a fair trial.The Magistrate’s conduct during the trial, when he variously addressed Gariseb as “my friend” and “my dearest friend” was also inappropriate, the Judge added.On the delay in submitting the case to the High Court for review, Judge Muller further stated: “This case is a perfect example that the system of review as it is at present does not work and only serves to place an unnecessary burden on High Court Judges who have to read the records, address queries to the Magistrate and write judgements.The purpose of the review system is that it would be to the advantage of the accused to have his case reviewed within weeks.Presently this purpose is not being achieved.”Judge Muller’s remarks come some four and a half years after delays in sending lower court cases on review to the High Court already attracted the attention of then High Court Judge Gerhard Maritz.In a judgement that he handed down at the time, Judge Maritz warned that virtually no review reached the High Court within the time limit prescribed by the Criminal Procedure Act, and that these sort of delays made a mockery of the purpose behind the review procedure, undermine the fairness of the judicial process, erode confidence in the administration of justice and diminish the rights to equal justice of the poor and illiterate sections of Namibian society.Judge Maritz’s warning appears to have fallen on deaf ears, though.In both cases, irregularities originating from the way in which the presiding Magistrate handled the trial in question, resulted in the accused men not receiving a fair trial, Judge Muller found. For the two accused men, the Judge’s finding and order that their convictions be set aside will come as cold comfort, though.Their cases arrived at the High Court to be reviewed long after the passing of the one-week time limit that the Criminal Procedure Act prescribes for cases to be sent on review.The convictions that Judge Muller set aside are those of Rian Gariseb, who had been charged with assault with intent to do grievous bodily harm and sentenced to six months’ imprisonment after a trial that the High Court has now labelled as unfair, and Graven van Neel, who was convicted of theft in a trial that Judge Muller likewise found had been tainted by irregularities and a miscarriage of justice.Gariseb was convicted on August 12 last year.Van Neel’s trial was concluded on April 5 already.Van Neel’s case arrived in the High Court to be reviewed only a year after it had been concluded.By that time, he would have already served the six-month prison term that the Magistrate sentenced him to, if he did not pay an alternative fine of N$1 000, Judge Muller noted.Gariseb’s case arrived at the High Court for review about a year after he had been sentenced, the Judge also noted.In both cases, the Swakopmund Magistrate blamed the firm responsible for transcribing tape recordings of court proceedings in Namibia, Compuneeds Namibia CC, for the long delays in getting the case records ready to be sent for review.Similar claims of delays being attributed to the slow pace at which the firm prepares and finalises case records have also been a feature in other review cases, the Judge noted.”This is a serious accusation and if true, as it seems to be, the appropriate authorities e.g.the Ministry of Justice and the Magistrates’ Commission have to attend to it urgently in an effort to find a solution which would prevent the undermining of the review system,” he stated in his judgement on Van Neel’s case.If a solution to this problem could not be found, it would have to be questioned whether it was worth retaining the review system – which in the first place was supposed to be designed to pick up and correct failures of justice soon after they had been made in the country’s Magistrate’s Courts – while it did not work, the Judge said.In Gariseb’s case, Judge Muller found that the Magistrate’s handling of the trial, in which he took it upon himself to cross-examine not just Gariseb but also a defence witness to the extent that he basically did the Public Prosecutor’s work, and where he failed to give Gariseb a proper chance to testify in mitigation of sentence or make submissions on the sentence that was to be imposed, resulted in Gariseb being deprived of his right to a fair trial.The Magistrate’s conduct during the trial, when he variously addressed Gariseb as “my friend” and “my dearest friend” was also inappropriate, the Judge added.On the delay in submitting the case to the High Court for review, Judge Muller further stated: “This case is a perfect example that the system of review as it is at present does not work and only serves to place an unnecessary burden on High Court Judges who have to read the records, address queries to the Magistrate and write judgements.The purpose of the review system is that it would be to the advantage of the accused to have his case reviewed within weeks.Presently this purpose is not being achieved.”Judge Muller’s remarks come some four and a half years after delays in sending lower court cases on review to the High Court already attracted the attention of then High Court Judge Gerhard Maritz.In a judgement that he handed down at the time, Judge Maritz warned that virtually no review reached the High Court within the time limit prescribed by the Criminal Procedure Act, and that these sort of delays made a mockery of the purpose behind the review procedure, undermine the fairness of the judicial process, erode confidence in the administration of justice and diminish the rights to equal justice of the poor and illiterate sections of Namibian society.Judge Maritz’s warning appears to have fallen on deaf ears, though.