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2010

PROMOTING ACCESS
TO JUSTICE IN THE
HIGH COURT OF
NAMIBIA:
FIRST REPORT
THE CASE FOR JUDICIAL CASE
MANAGEMENT

REPORT IN RESPECT OF THE JUDGE PRESIDENT’S


FAMILIARIZATION VISIT TO SOUTH AFRICA (NORTH GAUTENG
HIGH COURT); BOTSWANA HIGH COURT; MALAYSIA HIGH COURT
AND SUPREME COURT; SINGAPORE SUBORDINATE COURT &
SUPREME COURT AND CRIMSONLOGIC - UNDERTAKEN DURING
THE PERIOD 2-16 MAY 2010

THE HON. MR JUSTICE PETRUS T. DAMASEB

8/31/2010
‘’The public expect a judicial process that is affordable,

transparent, accessible, fair, impartial and easy to understand;

and one that dispenses justice reasonably speedily.’’

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HIGH COURT OF THE REPUBLIC OF NAMIBIA

Available on line: www.superiorcourts.org.na

Inquiries can be made to:

Chief Registrar: High and Supreme Courts of Namibia

Email: chiefregistrar@mtcmobile.com.na

Tel: +0264 61 292 1351

Fax: +0264 61 221686

Private Bag 13179, Windhoek, Namibia

First published 2010

Printed by XTreme Printing and Stamps for the High Court of Namibia with

the financial support of the Ministry of Justice.

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FOREWORD

The present system for conducting (especially civil ) litigation in Namibia and in

which the judge is a passive player and where the parties to litigation determine

the pace and intensity of litigation is no longer sustainable if we are ever to have

any chance of solving the problem of case backlog. It is inescapable that Namibia

gravitate towards a system of Judicial Case Management, combined with some

form of voluntary court-connected ADR in civil matters. ADR should at the initial

stage be voluntary and optional but must ultimately become compulsory through

legislative intervention. Legal practitioners are reminded that as officers of the

Court they have an obligation to assist the Court in curtailing court proceedings in

the public interest.

Petrus T Damaseb
Chambers
Windhoek
31 August 2010

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GLOSSARY

ADR Alternative Dispute Resolution

CMC Case Management Conference

CPD Consolidated Practice Directions issued by the Judge

President of The High Court of Namibia

CPR Civil Procedure Rules enacted for E & W in April 1998

following Lord Woolf’s interim report on access to civil

justice in E & W (1995). These new rules are the basis for

judicial case management in E & W.

DJP Deputy Judge President of the North Gauteng High Court

E&W England and Wales

FIXED CIVIL TRIAL An action proceeding in the high Court of Namibia lasting

for 5 days or more

FCMC Further Case Management Conference

HK Hong Kong

ICMC Initial Case Management Conference

IT Information technology

JCM Judicial Case Management

Jackson Report ”Review of Civil Litigation Costs: Final Report-14 January

2010, Sir Rupert Jackson”

JSC Judicial Service Commission of Namibia, an independent

body created under the Constitution and which is

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responsible for the appointment of judges and considering

complaints against judges

JP Judge- President of The High Court

LSN Law Society of Namibia

NGHC North Gauteng High Court

OPPOSED MOTION Civil proceeding in the High Court commenced by way of

application, as opposed to action

PG Prosecutor- General of Namibia

PTR Pre-trial Review

Registrar Registrar of the High and Supreme Court of Namibia

Woolf Report Lord Woolf: ”’Access to Justice: Interim report to the Lord

Chancellor on the civil justice system in England and

Wales (1995)’’

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Table of Contents
PART A: INTRODUCTION .............................................................................................................................................9
1. PURPOSE OF FAMILIARISATION VISIT .....................................................................................................9
2. THE DELEGATION AND JURISDICTIONS VISITED .......................................................................... 10
3. METHODOLOGY .................................................................................................................................................. 11
4. EXECUTIVE SUMMARY .................................................................................................................................... 13
PART B: PROBLEMS CURRENTLY EXPERIENCED AT THE HIGH COURT OF NAMIBIA ........ 20
1. LEITMOTIF ................................................................................................................................................................ 20
2. THE HIGH COURT‟S INABILITY TO SATISFY PUBLIC‟S EXPECTATION .......................... 20
2.1. NOT ALL CASES RIPE FOR HEARING ARE SET DOWN ..................................................... 20
2.2. DELAY IN DELIVERY OF RESERVED JUDGMENTS .............................................................. 24
2.3. POSTPONEMENTS ARE GRANTED TOO EASILY ................................................................... 25
2.4. PART-HEARD MATTERS CLOG THE ROLL AND CROWD OUT NEW MATTERS . 30
2.5. CERTAIN PROCESSES SUCH AS INTERLOCUTORIES, REQUESTS FOR FURTHER
PARTICULARS, IRREGULAR PROCEEDINGS ETC. CAUSE DELAY DUE TO THE
INHERENT NATURE OF THE PROCESS: ....................................................................................... 30
2.6. INADEQUATE NUMBER OF AVAILABLE “INSTRUCTED COUNSEL‟‟ ....................... 31
2.7. INADEQUATE ADMINISTRATIVE SUPPORT SYSTEM: NO RESEARCH
ASSISTANCE FOR JUDGES AND NO ADEQUATE LEVERAGING OF IT .................. 31
2.8. LAY LITIGANTS .......................................................................................................................................... 32
2.9. IMPROPER USE OF THE RULE 37 PROCEDURE ....................................................................... 33
2.10. ”DEAD WOOD” ....................................................................................................................................... 34
3. CONSEQUENCE OF PROBLEMS EXPERIENCED ................................................................................ 34
PART C: REMEDIAL MEASURES INTRODUCED ......................................................................................... 36
1. SPECIFIC MEASURES ......................................................................................................................................... 36
2. SUCCESS OF RESPONSE TO PROBLEMS EXPERIENCED .............................................................. 37
3. PROBLEM AREAS REMAINING .................................................................................................................... 38
3.1. CRIMINAL TRIAL ROLL ........................................................................................................................ 38
3.2 TOO FEW MATTERS GET ON FIXED CIVIL TRIAL ROLL................................................... 39
3.3 TOO FEW OPPOSED MOTION MATTERS GET ON THE ROLL.......................................... 40
3.4. TOO MANY JUDGMENTS REMAIN OUTSTANDING IN BREACH OF GUIDELINES
……………………………………………………………………………………………………………………………..41
3.5. INSUFFICIENT AND/OR INADEQUATE SUPPORT SYSTEM, SPECIFICALLY WITH
REGARD TO COURT RECORDS ......................................................................................................... 41
4. POSSIBLE SOLUTIONS IDENTIFIED FOR INVESTIGATION ........................................................ 41
PART D: OBSERVATIONS IN THE JURISDICTIONS VISITED ............................................................... 43
1. SOUTH AFRICA ...................................................................................................................................................... 43
2. BOTSWANA .............................................................................................................................................................. 47
3. MALAYSIA ................................................................................................................................................................ 53

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4. SINGAPORE .............................................................................................................................................................. 57
5. OTHER COMMON LAW JURISDICTIONS: COMPARATIVE VIEW ........................................... 59
5.1 AUSTRALIA ................................................................................................................................................... 59
5.2 HONG KONG ................................................................................................................................................. 60
5.3. ENGLAND AND WALES ......................................................................................................................... 63
PART E: NAMIBIA: THE WAY FORWARD ....................................................................................................... 65
1 JUSTIFICATION ...................................................................................................................................................... 65
2. DIRECTION OF REFORM: STRATEGIC OBJECTIVES DEFINED ................................................. 66
3. SPECIFIC RECOMMENDATIONS .................................................................................................................. 67
3.1 OF GENERAL APPLICATION ............................................................................................................... 67
3.2. OF SPECIFIC APPLICATION ................................................................................................................. 69
4. STAKEHOLDER BUY-IN .................................................................................................................................... 76
PART F: NOTES OF INTERVIEWS WITH COURT ADMINISTRATORS IN JURISDICTIONS
COVERED BY VIST............................................................................................................................................................... 78
1 SOUTH AFRICA, NORTH GAUTENG HIGH COURT..................................................................................... 78
2 HIGH COURT OF BOTSWANA, LOBATSE............................................................................................... 88
3 MALAYSIA SUPERIOR COURTS ............................................................................................................... 100
4 SINGAPORE ........................................................................................................................................................... 107
PART G: APPENDICES ................................................................................................................................................... 112
1 TRAVEL PROGRAM .......................................................................................................................................... 112
2 LIST OF PEOPLE INTERVIEWED ............................................................................................................... 116
3 DOCUMENTS COLLECTED .......................................................................................................................... 118
GENERAL BIBLIOGRAPHY .......................................................................................................................................... 120

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PART A: INTRODUCTION

1. PURPOSE OF FAMILIARISATION VISIT

1.1. The number of cases filed in the High Court (and with it the volume

of work) has grown considerably since independence. That growth is

a function of many factors - some not immediately apparent to the

court administrator. No doubt there has been an exponential

increase in the work of the judges of the High Court - due in no small

measure to new legislation coming on the statute book as the nation

grapples with the needs of a developing nation and the need to keep

pace with the challenges thrown up by increasingly sophisticated

and globalised criminal behavior. What is clear though is that people

have since Independence become more aware of their rights under

the law and are keen to enforce those rights if they feel aggrieved.

1.2. It is a reality that the High Court has not been able to accommodate

all the cases that litigants wish to have enrolled during a particular

court term.1 Regardless of the value of the claim involved, or the

complexity of a matter, in this jurisdiction trials tend to be long-

drawn-out, invariably punctuated by incessant postponements

resulting in many matters becoming part-heard and taking quite long

to be re-enrolled for completion. The net result of all that is a

phenomenon manifesting itself in ‘’case backlog’’ the most visible

1 For the dispatch of civil business there are three terms in each year: a. from 16 January to 15 April,
inclusive; b. from 16 May to 31 July, inclusive; c. 16 September to 30 November, inclusive. For the
dispatch of criminal business, including criminal appeals and reviews, there are 2 sessions in the
year: a. 16 January to 31 July, inclusive, b. 1 September to 30 November, inclusive.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 9 of 120
manifestation of which is that fixed civil trials, criminal trials,

opposed motions and criminal appeals are not readily allocated

court time in the shortest time possible. For this reason, there is a

generally held belief amongst the public that justice is not speedily

dispensed in Namibia.

1.3. I had therefore felt the need to acquaint myself with developments in

other jurisdictions aimed at addressing the problem of case backlog.

The familiarization visit, of which the present report is the final

product, was actuated by the need to observe and experience first-

hand the efforts and initiatives undertaken by other jurisdictions in

addressing the problem of case backlog.

1.4. I expect this to be the first in a series of reports under the theme

“Promoting Access to Justice in the High Court of Namibia” (not

all necessarily authored by me) focusing on specific issues which

impede access to justice in the High Court to be discussed with

interested persons and institutions, as a bellwether of reform aimed

at promoting greater access to justice in the High Court.

2. THE DELEGATION AND JURISDICTIONS VISITED

2.1. The High Court delegation comprised of the Judge President of the

High Court, Petrus T. Damaseb; The Hon. Mr. Justice Louis C Muller,

Judge of the High Court, and Mrs Elsie Schickerling, Chief Registrar of

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the High and Supreme Courts of Namibia. In view of the importance

of the project and the potentially radical changes envisaged following

the familiarization visit, the need was felt to invite the LSN to

nominate one of their number to join the High Court delegation. In

the event, the LSN nominated its incumbent President, Adv Harald

Geier, to participate in the familiarization visit.

2.2. The detailed program germane to the visit, the people met and

consulted and the documents collected and consulted, are dealt with

in parts F and G of this report for the more avid reader. For present

purposes, it suffices to record that the delegation visited the

following jurisdictions: North Gauteng High Court; the High Court of

Botswana; the Superior Courts of Malaysia, and the Subordinate

Court and Supreme Court of Singapore.

Based on discussions with colleagues in those jurisdictions, a

considerable body of material from other jurisdictions2 was collected

and consulted.

3. METHODOLOGY

3.1. In each jurisdiction that we visited , we sought to establish if they

experience the problem of case backlog such as we do; the reasons

for it if it exists ; the efforts, initiatives and reforms undertaken to

tackle the problem ; the successes recorded by such initiatives - and

any problems experienced in the wake of the reforms.

2 England and Wales, Hong Kong, Australia, New Zealand and the USA.
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3.2. Many of the international sources referred to in this report were

consulted after reading a copy of the lecture by Justice Murray

Kellam (infra), kindly made available to the delegation by the DJP of

the NGHC.

3.3. We were able to conduct extensive discussions with the Chief Justice

of Malaysia,3 the senior judge responsible for the management of the

High Court and the registrars and senior personnel of the judiciary of

the High and Supreme Courts of Malaysia, to understand the reforms

introduced to deal with the problem of case backlog which our

interlocutors confirmed led to the present civil justice reforms in

that jurisdiction. The discussion on Malaysia that follows hereunder

is not based on primary sources such as legislation, rules of court or

practice directions but on the discussions aforesaid.

3.4. Similarly for Singapore, the observations in respect of that country

are based on interviews conducted with judges and court

administrators at the Singapore Subordinate Court 4 and the Supreme

Court.5

3 The Hon. Chief Justice Tun Dato’ Seri Zaki Bin Tun Azmi
4 Senior District Judge Mr. Tan Siong Thye and Registrar Ms.Hoo Sheau Peng
5 Mr. Foo Chee Hock, Registrar, Supreme Court of Singapore. The Supreme Court of Singapore

consists of a trial division and an appellate division, both headed by the Chief Justice.
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3.5. After every day’s meetings the delegation met for a debriefing on the

engagements of the day to summarise what we had heard and

observed - and where possible we drew conclusions on the relevance

for Namibia of what we had seen. In Part F of this report we provide

an account of our discussions and conclusions. These have by and

large influenced what I record in Parts A-E of the report. I am very

grateful to the members of the delegation for the very open and

constructive discussions we had during the familiarization tour. I

recognize that at the end of the day the final responsibility rests with

me on the direction that the High Court will take. Accordingly, I

accept sole responsibility for any errors there may be in this report,

including any flawed reasoning that informs the final

recommendations.

3.6. Great care has been taken to reflect as accurately as possible the

practices of the Courts that we visited. If there is inaccuracy of any

kind such is unintentional and deeply regretted. I can only hope that

it will be seen as such by the colleagues who so graciously and

generously made the time available to share their experiences with

us.

4. EXECUTIVE SUMMARY

4.1. The conclusions we came to - based on discussions with our

counterparts in the jurisdictions we visited- were by and large

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validated by literature from the other jurisdictions mentioned in

footnote no.2.

4.2. Without exception, all the four jurisdictions that we visited – albeit to

varying degrees - experience (d) case backlog.

4.3. We have found that the appointment of more judges, unless seen as

part of an all-encompassing reform programme, is not necessarily

the panacea to solving the problem of case backlog. Our visits to

these jurisdictions have brought in sharper focus the reality that the

variant of the civil adversarial process such as is practiced in

Namibia - in which litigants and their legal representatives dictate

the pace and intensity of litigation - is greatly responsible for case

backlog.

4.4. We have also come to conclude that complete reliance on the formal

court system for the resolution of all civil disputes is unrealistic and

adds to the problem of case backlog. Our interaction with other court

administrators in the jurisdictions we visited has shown that

introduction of court –connected ADR is an essential strategic

intervention in the quest to address case backlog.

4.5. With the exception of the NGHC, all the jurisdictions we visited have

introduced some form of JCM (with a form of ADR as an adjunct) in

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addressing the problem of case backlog. At the heart of JCM lies the

principle that litigants and their lawyers should not dictate the pace

of litigation. The present adversarial system in Namibia is based on

the notion that it is the litigants who drive the process of litigation: if

they do not take the steps necessary to advance the process, the

judge may not force them to do so. The litigants can therefore stall

the process if they so choose and only at the instance of either party

may the judge intervene.

4.5.1. JCM is the very antithesis of that. It recognizes as a legitimate

public interest that once commenced, litigation must progress

with due expedition so that a matter is finalized and in that

way to ease case backlog. JCM takes different shapes in the

three jurisdictions we visited. In Botswana each judge is

allocated a quota of cases from date of inception which he

/she manages until completion. All processes attendant on the

case are the responsibility of the managing judge to whom the

case is assigned. The parties have recourse to the managing

judge for directions and the hearing and determination of

interlocutory processes related to the case. There is therefore

no separate motion roll such as we are accustomed to in

Namibia.

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4.5.2. Once a case is assigned to a judge it remains with that judge

until it is finalized, unless for good reason it is re-assigned to

another judge. JCM in Botswana applies to the entire

spectrum of cases: civil, criminal appeals and motion

proceedings.

4.5.3. In Malaysia and Singapore CMC’s are in the main conducted

by professionally qualified registrars but judges may get

involved if it is necessary.

4.5.4. Although in a JCM environment the judge is no longer a

passive actor in the trial process, he/she remains a neutral

and impartial trier of fact and law. Judges are still expected in

a JCM environment to take care not to choose sides or to give

the appearance of doing so. They are specifically expected not

to act as mediators or arbitrators -roles that are seen as

inconsistent with that of judge. The judge’s role as a manager

of the case is confined to properly isolating the issues of fact

and law that call for adjudication – i.e. making sure that the

areas of factual and legal dispute are limited to that which

properly on the facts call for decision (narrowing the scope of

disagreement as it were).

4.5.5. The following salient features characterize JCM:

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(i) Low tolerance for postponements; and therefore

(ii) Great care is taken at the initial stage not only to

properly limit /define the issues for decision, but also

more accurately to estimate the time needed to finalise a

case at trial.

(iii) Rules relating to pleading and trial preparation are

reformed : either the parties are required right from

inception to plead their cases in great detail and to

identify the evidence on which they are going to rely,

and/or they are required to exchange affidavits of

evidence before trial.

(iv) Considering that the evidence on which either party

would rely is exchanged in advance of trial, at the trial

the affidavit evidence is merely handed up and the

witnesses’ oral testimony commences with cross-

examination and then followed by re-examination.

Witness statements:

(a) encourage early trial preparation and enable an early

assessment of the strengths and weaknesses of the

parties’ respective cases;

(b) apprises the opposing party early in the process what

to expect; what evidence to garner to meet the

opponent’s case and to prepare for cross-examination;

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(c) help in narrowing areas of dispute and serve as an

incentive to early settlement since the parties know

early what issues are in dispute.

(v) The introduction of court-annexed

mediation/arbitration is a critical element for a

successful JCM for without it the court system will still

be overstretched.

(vi) JCM systems frown upon adjournments/ postponements

and only allow it in the most exceptional circumstances.

To control that, strict protocols exist such as requiring

judges to report to the head of court on why it was

necessary to grant a postponement.

(vii) The countries we visited that practice JCM in one or

other form have demonstrated the following benefits

from its application:

(a) ”Dead wood’’ cases are either expunged from the

system or are fast-tracked;

(b) Cases are speedily finalized;

(c) Duplication of effort is eliminated as the judge

assigned to the case knows all the aspects related to

it ;

(d) We have found that in the immediate aftermath of

the implementation of JCM, practitioners are over-

stretched and there is increased financial cost

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necessitated by an increase in administrative

support to the judges.

4.6. Our visit has demonstrated the importance of maximizing the use of

IT to achieve an efficient court administration and litigation process.

4.7. Against the backdrop of what we had learnt on the familiarization

visit, and in the light of the problems we are experiencing at the High

Court, it is inexorable for Namibia to adopt JCM for the conduct of

litigation.

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PART B: PROBLEMS CURRENTLY EXPERIENCED AT THE HIGH
COURT OF NAMIBIA

1. LEITMOTIF

In my leadership role of the High Court I am keen to determine the actual

causes of case backlog afflicting the High Court. I am particularly interested

to establish if the current Rules of Court - which place litigants and their

legal practitioners at the centre-stage (as the primary determinants of

progress of litigation) - do not contribute to case backlog.

2. THE HIGH COURT’S INABILITY TO SATISFY PUBLIC’S

EXPECTATION

The public expect a judicial process that is affordable, transparent,

accessible, fair, impartial and easy to understand; and one that dispenses

justice reasonably speedily. That is the standard against which to measure

the performance of the High Court.

2.1. NOT ALL CASES RIPE FOR HEARING ARE SET DOWN

The High Court experiences a backlog in the following areas:

criminal appeals; criminal trials; opposed motions and fixed civil

trials.

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2.1.1. Criminal Appeals

Indicative statistics for the years 2008/09 and 2009/2010:

% FINALIZED
REGISTERED
LEGAL YEAR

FINALIZED
APPEALS

APPEALS

APPEALS

vs. NEW
HEARD

CASES
NEW
2008/2009 209 122 70 33,5%

2009/2010 264 155 111 42%

Source: Registrar

For the period 1 April 2009 – 31 March 2010 a backlog of

about 62% has been created on numbers alone, without

having regard to the specific year of registration of the appeal

matter finalized.

2.1.2. Criminal Trials

Despite the increase in the number of court rooms and judges

dedicated to criminal trial matters, the Registrar was forced

during the last term of 2009 to allocate hearing dates only for

the year 2011 in criminal matters. Historically 2 – 3 criminal

trials were enrolled per term. Currently the High Court enrolls

only 2 criminal trials in Oshakati and up to 5 in Windhoek. For

every additional case enrolled on the criminal List in order to

ease the queue of criminal cases awaiting enrolment, there is

a corresponding decrease in the number of judges available

for allocation to the civil List. Consequently, it is not possible

to increase either the number of court rooms or the number

of judges for criminal matters. The result is that very few

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cases do get set down for hearing compared to those ripe for

hearing. This has very serious implications for the accused

person’s right to a fair (and speedy) trial under article 12(1)

(b) of the Namibian constitution which ordains that a

criminal trial ‘’shall take place within a reasonable time, failing

which the accused shall be released’’.

Indicative statistics for the current criminal roll are as follow:

2ND TERM

2ND TERM

3RD TERM
1ST TERM

RECESS
2010

2010

2010

2010
PERMANENT JUDGES
ALLOCATED
7 6 1 5

COURT ROOMS ALLOCATED


5 4 1 3
WINDHOEK

COURT ROOMS ALLOCATED


OSHAKATI
1 2 0 2

ACTING JUDGES FOR


CRIMINAL TRIALS
0 1 1 0

SPECIAL COURT ARRANGED 0 1 1 0

NO OF CRM CASES SET DOWN 11 17 2 13

TOTAL COURT DAYS


ALLOCATED FOR CRIMINAL 200 273 35 204
TRIALS
Source: Registrar

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CRIMINAL TRIALS SET DOWN FOR 2011 ON 26/7/2010

1ST TERM 2011 2ND TERM 2011 3RD TERM 2011


NEW P/H NEW P/H NEW P/H

WHK 9 1 9 1 3 0

OSH 3 0 0 0 0 0

Source: Registrar

2.1.3. Opposed Motions

Statistics for opposed motions

3RD TERM

2ND TERM
1ST TERM
TERM

2009

2010

2010
MATTERS REQUIRING DATES 51 50 42

MATTERS RECEIVING DATES 27 30 24

MATTERS REMAINING WITHOUT DATES 24 20 18

% OF UNALLOCATED CASES RIPE FOR


HEARING
47% 40% 43%

Source: Registrar

2.1.4. Fixed Civil Trials:

Statistics for fixed civil trials:


3RD TERM

2ND TERM
1ST TERM
TERM

2009

2010

2010

MATTERS REQUIRING DATES 36 23 19

MATTERS RECEIVING DATES 24 13 11

MATTERS REMAINING WITHOUT DATES 12 10 8

% REMAINING WITHOUT DATES 33,3% 43,4% 42,1%


Source: Registrar

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The above statistics are only illustrative of the problem of

case backlog at the High Court and are in no way intended to

be a complete picture of the situation as it obtains today.

2.2. DELAY IN DELIVERY OF RESERVED JUDGMENTS

The operating standard at the moment is that judges of the High

Court are required to deliver reserved judgments within a

reasonable time. Following complaints by the LSN to the JSC, certain

guidelines for delivering reserved judgments were laid down by the

JP and endorsed by the JSC. The table below gives an age analysis of

reserved judgments that are long-outstanding if measured against

JSC decisions and or the guidelines issued by the JP.

HIGH COURT OUTSTANDING JUDGMENT AGE ANALYSIS


200 200 200 200 200 200 200 200
1 2 3 4 5 6 7 2008 9 2010
TOTAL OVERDUE

TOTAL PENDING

OUTSTANDING
OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE
PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

TOTAL

2 4
31/3/10 1 0 5 0 5 0 7 0 6 0 7 0 9 0 0 0 7 0 0 41 107 41 148

2 4 1
30/6/10 1 0 5 0 5 0 7 0 6 0 7 0 9 0 0 0 7 0 4 21 121 21 142

2 4 1
31/7/10 1 0 5 0 5 0 7 0 6 0 7 0 9 0 0 0 3 0 8 39 121 39 160

2 4 1
10/8/10 1 0 5 0 5 0 7 0 6 0 7 0 9 0 0 0 3 0 3 34 116 34 150
Source: Registrar

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HIGH COURT OUTSTANDING JUDGMENT
AGE ANALYSIS
AMOUNT OF JUDGMENTS OUTSTANDING 50
45
40
35
30
25
20
31/3/2010
15
10 30/6/2010
5 31/7/2010
0
10/8/2010
PENDING
PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING

PENDING
OVERDUE
OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE

OVERDUE
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
YEAR DURING WHICH JUDGMENT RESERVED

Source: Registrar

2.3. POSTPONEMENTS ARE GRANTED TOO EASILY

2.3.1. In the sphere of criminal law, the principles that should

govern an application for an adjournment are succinctly set

out in the landmark case of S v Acheson6. Acheson establishes

that a request for the adjournment of a criminal trial (which

is governed by Sec.168 of the Criminal Procedure Act7) ‘’is not

to be had for the asking.’’ To be successful, an application for

an adjournment must be ‘’reasonably necessary’’ and

‘’expedient’’ in the circumstances of the case. The Court

retains a discretion in the matter and will be loath to refuse it

if, when the State requests an adjournment, a refusal might

6 1991 NR 1 (HC) at 8C-J and 9A-G.


7 Act no. 51 of 1977
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result in a guilty man going free. (Besides, as regards the

accused article 12 (1) (e) of the Namibia Constitution states

that all ‘’persons shall be afforded adequate time and facilities

for the preparation and presentation of their defence, before

the commencement of and during the trial…’’) In Acheson, the

Supreme Court laid down general guidelines that the Court

must have regard to in the exercise of its discretion whether

or not to grant an adjournment. These include: the previous

conduct of the parties; the seriousness of the offence; the

reason why the adjournment is sought; financial prejudice

that may result from the adjournment; the public interest in

the matter, and whether or not the accused will in the interim

remain in custody or be let out on bail.

2.3.2. In the civil context, the leading case is Myburgh Transport v

Botha t/a SA Truck Bodies8. It is now settled that a Court

should be slow to refuse a postponement where the true

reason for a party’s non-preparedness has been fully

explained and is not due to delaying tactics. The overriding

consideration in the Court’s exercise of the discretion

whether or not to grant a postponement is the need to do

‘’substantial justice’’ between the parties. The Court is

principally concerned with one question: what is the

prejudice to be suffered by the party adversely affected by the

8 1991 NR 171 (SC) at 174-5


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 26 of 120
postponement and can it be cured by an appropriate order of

costs?

2.3.3. When a postponement is sought for a case that has been duly

listed for trial but is contested by the other side, the above are

the principles that the Court applies in exercising its

discretion whether or not to grant it.

2.3.4. The matter is somewhat different when both parties are in

agreement that a trial should be postponed. In this

jurisdiction some judges are strict in their consideration of

requests for postponements, while others grant

postponements too readily, especially if the parties agree that

the matter not proceed: The implications of a postponement

on the overall administration of justice is hardly a relevant

consideration. In practice, there is no uniform approach

amongst the judges on the need to curb postponements. The

current approach seems to be that if the parties agree to have

a matter postponed, it is unnecessary to inquire into the

reasons therefor. This approach does not recognize the early

disposal of cases as a legitimate public interest.

2.3.5. Courts elsewhere have adopted a completely different

approach. We have observed that in Botswana, Malaysia and

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 27 of 120


Singapore, postponements are frowned upon and are allowed

only in extremis, and the heads of court enforce a no-

postponement policy on the judges and expect the judges to

explain why a postponement was granted in a case which was

ripe for hearing. In Australia the position was stated

forthrightly as follows by Gleeson CJ:

”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. 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’’.9 (My Emphasis)

2.3.6. The paradigm shift from a litigant/lawyer driven litigation

process to one that is judge-driven and recognizes as a

legitimate public interest the early and cost-effective disposal

of cases is now firmly embedded in common law

jurisprudence. The following extracts from the highest courts

of E & W are in point. In Jones v University of Warwick10, Lord

Woolf C.J. said:

“A judge’s responsibility today in the course of properly


managing litigation requires him, when exercising his discretion in
accordance with the overriding objective contained in CPR Part 1, to
consider the effect of his decision upon litigation generally. An
example of the wider approach is that the judges are required to

9 (1992) 29 NSLR 487 at 493-494


10 [2003] 1 WLR 954 at [25]
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 28 of 120
ensure that a case only uses its appropriate share of the resources of
the court (CPR Part l.l. (2) (e)). Proactive management of civil
proceedings, which is at the heart of the CPR, is not only concerned
with an individual piece of litigation which is before the Court, it is
also concerned with litigation as a whole.” (My underlining for
emphasis)

In Thomson v O’Connor11 Brooke L.J. put it thus:

“The Civil Procedure Rules, with their tough rules in relation


to requiring compliance with court orders, were introduced to
extinguish the lax practices which existed before those rules were
introduced whereby parties’ solicitors often regarded directions given
by the court as so much waste paper, extended time unilaterally
without approaching the court, reached agreements allowing each
other plenty of time without approaching the court, and made it
virtually impossible for courts to organize their lists effectively.”
(Underlining provided)

2.3.7. The new ethos were authoritatively endorsed by the House of

Lords in Sutradhar v Natural Environment Research Council12,

when Lord Hoffmann stated the following:

“The overriding objectives of the Civil Procedure Rules include


achieving justice for both claimants and defendants and saving time
and expense. These objectives sometimes conflict and compromises
are required. It is not the case that the administration of justice, alone
amongst the services provided by the state, is exempt from any
considerations of cost.’’ (Emphasis supplied)

11 [2005] EWCA Civ 1533 at [17]


12 [2006] UKHL 33; [2006] 4 ALLER 490 at [42].
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 29 of 120
2.4. PART-HEARD MATTERS CLOG THE ROLL AND CROWD OUT NEW

MATTERS

The first observation in this regard is that in Namibia, at the stage

where a matter is being listed for trial, not enough thought goes into

establishing just how much time would be required to have the

matter completed from start of hearing to completion. Part of the

reason for that is that judges are not involved in managing cases and

in interrogating the issues requiring adjudication. The amount of

time allocated for trial is therefore largely the result of guesswork. In

the jurisdictions that we visited that apply JCM, the Court is actively

involved in determining the amount of time required for trial. The

result is that matters do not easily become part-heard once

commenced.

2.5. CERTAIN PROCESSES SUCH AS INTERLOCUTORIES, REQUESTS

FOR FURTHER PARTICULARS, IRREGULAR PROCEEDINGS ETC.

CAUSE DELAY DUE TO THE INHERENT NATURE OF THE

PROCESS:

As Namibia does not operate an individual docket system, during the

life time of a case interlocutories arising from a case can be heard by

as many judges as the Court has in service. This invariably results in

duplication of effort as interlocutory matters have the tendency of

being postponed time and time again, especially were self-actors are

involved.

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2.6. INADEQUATE NUMBER OF AVAILABLE “INSTRUCTED

COUNSEL’’13

Although the Legal practitioners Act (as amended)14 has done away

with the statutory bifurcation of the practicing profession, there still

exists a de facto referral profession in Namibia which is very small in

number. The briefing of “instructed counsel” by ”instructing counsel”

is more the norm than the exception in civil matters - often

regardless of the complexity of the matter. Because ”instructed

counsel’’ are fewer in number and are not able to deal with all cases

that can be set down in a particular term, some cases which are ripe

for hearing cannot be enrolled because of non-availability of

‘’instructed counsel”.

2.7. INADEQUATE ADMINISTRATIVE SUPPORT SYSTEM: NO

RESEARCH ASSISTANCE FOR JUDGES AND NO ADEQUATE

LEVERAGING OF IT

Namibian judges have no professional support in the form of

research assistants. The entire burden of researching the law in a

case and reading through the files of the cases assigned to the judge

is therefore entirely the responsibility of the judge. The processes for

filing papers connected with a case are entirely paper- based in

Namibia. Documents often go missing from files and cannot be

13
See Rule 69(1) of the Rules of the High Court for when “instructed’’ counsel’s fees are allowable
14 Act No.15 of 1995
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 31 of 120
traced. This also results in matters being postponed until the missing

documents are found.

2.8. LAY LITIGANTS

Litigants in- person are increasingly becoming part of the civil

litigation landscape in Namibia, not least because of the prohibitive

costs of legal representation. In addition we are experiencing the

growth of an unregulated "alternative representation” industry

which is not governed by any rules of ethics. These individuals now

appear in several cases on the basis of purported cession of rights

obtained from parties to litigation and relying on this to claim locus

standing. This has very serious implications for the early disposal of

cases as more often than not the judges are confronted with a

multitude of sideshows which do not address the merits in the case:

Week in and week out judges are saddled with interlocutory

application after the other often in the most acrimonious tones and

often resulting in impasse. I am aware of case files that just cannot be

finished and take up so much judicial time to adjudicate issues

concerning locus standing involving individuals from the

unregulated alternative representation industry.

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2.9. IMPROPER USE OF THE RULE 37 PROCEDURE

2.9.1. The purpose of the Rule 3715 procedure has been stated as

follows:

The rule seeks to facilitate settlement discussions and to

avoid unnecessary costs by requiring timeous consideration

be given to issues that may limit the length of the trial. The

rule is also intended to protect a party from costs required to

ward off an opponent who is unable to proceed to trial or is

not serious about doing so.16

2.9.2. The reality is however far from that. In practice Rule 37

conferences are conducted in the most perfunctory and

formulaic fashion without any serious effort being made to

narrow areas of dispute and to properly place beyond the

scope of trial those areas that are not in dispute or on which

admissions can be made. The Rule 37 procedure is often

treated as a means to an end (i.e. to obtain a trial date). The

problem is compounded by the fact that in practice, by the

time the Rule 37 conference is held, 17 the parties had not

made any discovery. As no witness statements are exchanged

in our system of civil procedure, the parties’ knowledge of


15
„‟37 Curtailment of Proceedings
(1) An attorney desirous of obtaining a date for the hearing of an action shall as soon as possible
after the close of pleadings and before requesting such date in writing request the attorneys acting
for all other parties to such action to attend a conference at a mutually convenient time with the
object of reaching agreement as to possible ways of curtailing the duration of such trial…’’
16 Lekota v Editor, ‘’Tribute’’ Magazine, and Another 1995 (2) SA 706 at 707G-I.
17 In terms of Rule 35 (1) a party may not call for discovery before close of pleadings except with

leave of a judge.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 33 of 120
each other’s case is limited to the averments in the pleadings

which invariably are drafted in very guarded terms to cater

for many alternatives. The entire edifice of the system is thus

so constructed as not to promote early settlement of

litigation.

2.10. ”DEAD WOOD”

A good number of civil and labour cases considered current in the

Court’s registry may be considered as “dead wood”. These are

matters which are recorded in the Court’s books as running matters,

but which have either already been finalized through out of court

settlement without the knowledge or involvement of the Court , or

are matters in which the party which is dominis litis has lost interest

but the case has not been removed from the Court’s pending List.

3. CONSEQUENCE OF PROBLEMS EXPERIENCED

3.1. The inexorable consequence of the present case backlog and our

inability to work it down is loss of public confidence in the

administration of justice as the system does not guarantee a speedy

and cost-effective trial process. Because the roll is always

overloaded, judges feel they are being overburdened. The

consequence of long delays and incessant postponements is a costly

litigation process.

3.2. Because of delay in obtaining early trial dates in criminal cases,

accused persons are often detained for very long periods while
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awaiting trial- a circumstance that is particularly unfair if the person

is acquitted at the end of the day.

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PART C: REMEDIAL MEASURES INTRODUCED

1. SPECIFIC MEASURES

As court administrators we have not been oblivious to the frustration

experienced by the public with the situation that has been described above.

Successive Judges President have taken certain measures to deal with the

problems. These include:

1.1. Introduction of the floating roll;

1.2. Appointment of more acting Judges;

1.3. Streamlining of the Consolidated Practice Directives;

1.4. More effective utilization of judges;

1.5. Guidelines for delivery of judgments;

1.6. Supplying judges with laptops, Jutastat and internet for purpose of

research;

1.7. Increasing the number of Appeal matters set down per term;

1.8. Providing continuous training to the Registrar’s personnel on

various subjects: i.e. preparation of Appeal records, High Court

Rules; taxation etc;

1.9. Re-organization of the Court’s registry to optimize staff potential;

1.10. Assigning specific tasks and responsibilities to members of the

Court Registry;

1.11. Team Building amongst personnel of the Registry;

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 36 of 120


1.12. Introducing a new diary for taxations: increasing the number of

taxations attended to from 6 per week to now 9-12 per week;

1.13. Introduction of Judges Retreats in an attempt to professionally

better equip judges;

1.14. Establishment of the Judge President’s Advisory Committee to

consult with the profession on how best to improve service delivery

at the High Court;

1.15. Encouraging ex tempore judgments in criminal appeals;

1.16. Informal introduction of a Criminal Division.

2. SUCCESS OF RESPONSE TO PROBLEMS EXPERIENCED

2.1. Save in respect of areas to be discussed below, on balance the

measures introduced have had positive outcomes: the floating roll

appears to be working well and more matters are set down than we

know judges will be actually able to handle but most end up being

settled as parties are forced by the reality of the impending trial to

weigh the strengths and weaknesses of their respective cases and

thus explore settlement.

2.2. The Registrar reports that she has seen (and the practicing

profession has commended) the remarkable improvement at the

Registrar’s Office. The informal introduction of a Criminal Division

brought about a more structured criminal roll, and this immediately

created more space- making possible the placement of more criminal

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trials than would otherwise be the case. Increasing the number of

Appeals set down per term brought the backlog on appeals down

from 3 – 4 years to 1 – 2 years.

3. PROBLEM AREAS REMAINING

3.1. CRIMINAL TRIAL ROLL

3.1.1. As stated above, not all criminal matters ready for listing find

their way on the roll in the shortest time possible. The CPD18

sets out guidelines for the narrowing of issues in criminal

trials. They empower the Court, amongst others, to enquire

into and give directions to limit disputes likely to arise during

trial; recording of admissions the accused intends to make at

the trial; the number and availability of witnesses for the

prosecution and defense; the estimated duration of the trial -

and generally to enquire into any other matter that in the

presiding judge’s opinion may curtail the duration of the trial.

Regrettably, these powers are not being effectively deployed

by us as judges (and I am no exception) to curtail criminal

proceedings.

3.1.2. The lax application of these powers is doubtless partly

responsible for the prolix criminal trials that have become so

much the norm in our jurisdiction. At present no serious effort

18 Consolidated Practice Directions of the High Court of Namibia, Para 35(1)(3)


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 38 of 120
is being made to narrow issues and to properly record

admissions and facts not in dispute and in that way to make it

unnecessary to call a multitude of witnesses to prove facts not

in dispute. The problem is also compounded by the way in

which the criminal pre-trial roll is currently organized: at the

moment all cases are placed on the same roll regardless of

whether they are for mere mention or for the diligent

adjudication of the pre-trial memoranda shared between the

state and the accused. Because the roll is so unwieldy, the

temptation is to not engage in a debate of substance having

regard to the responses to the state’s memoranda and the

defense’s reply thereto. This state of affairs must be put right

at once and practitioners acting on behalf of accused persons

must be reminded that they owe a duty to the Court as its

officers to help curtail proceedings in the public interest.

3.2 TOO FEW MATTERS GET ON FIXED CIVIL TRIAL ROLL

Perhaps the greatest problem in the organization of the term roll is

the listing of fixed civil trial matters - being matters expected to last

for 5 days or more. If every matter requiring more than 5 days were

to be assigned a judge during term we will be unable to have enough

judges for the purpose , or to give trial time to other matters. For this

reason I arbitrarily limit the amount of fixed civil trials per term and

the balance of the cases would have to await future enrolment. As if

this were not bad enough, experience has shown us that most

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matters set down on the fixed civil roll would either not proceed on

the dates allocated for trial as the parties would realize that they are

not ready to proceed ; would get settled19 , or would be removed

from the roll ”by agreement between the parties’’. Because often not

enough effort goes into properly estimating the time required to

complete a fixed civil trial matter, once commenced these would, as a

rule, become part-heard and would require re-enrolment and

because the judge concerned would in the meantime have become

otherwise occupied, it is difficult to find the earliest possible dates

for continuation of trial.

3.3 TOO FEW OPPOSED MOTION MATTERS GET ON THE ROLL

There is great demand for court time as far as opposed motions are

concerned. We have been unable so far to accommodate all requests

for the enrolment of opposed motions. Since our return from the

familiarization visit I had authorized the Registrar to introduce a

floating roll for opposed motions and she informs me that the new

approach has had desired results and that we are now able to

sufficiently meet the demand for hearing dates for opposed motions.

We will review the present arrangement at the end of this year and

see if other alternatives should be explored, especially if it places too

great a burden on the judges.

19
Not that a settlement is a bad thing. The point is the system does not encourage it early enough.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 40 of 120
3.4. TOO MANY JUDGMENTS REMAIN OUTSTANDING IN BREACH OF

GUIDELINES

I have demonstrated above that, sadly, the guidelines for the delivery

of reserved judgments are observed more in their breach than in

their observance. The judiciary needs to deal with this situation

urgently in order to restore public’s confidence in the administration

of justice.

3.5. INSUFFICIENT AND/OR INADEQUATE SUPPORT SYSTEM,

SPECIFICALLY WITH REGARD TO COURT RECORDS

We still operate an entirely paper-based filing and court record

management system at the High Court. This is time-consuming and

often results in documents being lost. That the time has come to

leverage IT properly to achieve an efficient litigation process is an

understatement.

4. POSSIBLE SOLUTIONS IDENTIFIED FOR INVESTIGATION

4.1. It is against the backdrop of the continuing concern about how best

to improve the Court’s performance so as to meet the public’s

demand that the familiarization visit was undertaken to see if some

of the possible solutions to solve our problems are sound. For some

time now we have been thinking of the following as possible long-

term solutions to our problems:

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4.1.1. Creation of Divisions;

4.1.2. Introduction of a Specialist Commercial Court;

4.1.3. Introduction of a Judicial Case Management System;

4.1.4. Introduction of a Floating Opposed Motion Roll;

4.1.5. Substituting the Analogue Recording system with a digital

recording system;

4.1.6. Introduction of a computerized case management system

with the possibility of E-Filing.

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PART D: OBSERVATIONS IN THE JURISDICTIONS VISITED

1. SOUTH AFRICA

1.1. The South African judiciary also experiences case backlog.

The problems experienced by South Africa’s NGHC, and the

responses thereto, are remarkably similar to the position in

Namibia: In much the same way we in Namibia have hitherto

approached the situation, South Africa has not yet undertaken

a whole scale rethink of the orthodox adversarial civil

process, rather contending itself with tweaking and tinkering

with the process to address specific pressing concerns in

order to deal with ever-increasing demands on judges’ time.

To deal with the increased work load, the NGHC has

introduced:

a. Special Civil Trials: a judge is assigned to preside over a

matter expected to last for a long duration and remains

with the case until it is completed;

b. Roll Call Procedure: introduced to call cases on a specific

day in the week to determine which cases are ready to

proceed and which ones not. Those that are ready to

proceed are then allocated to a judge to hear the matter;

c. Floating Opposed Motion Roll: this is the equivalent of the

floating civil roll in the case of motion proceedings;

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d. The Judge President in allocating work in a term reserves

places on the floating civil roll to accommodate matters

which need preference due to special circumstances;

e. Introduction of the 3rd Motion Court roll to accommodate

weighty and complex matters (of more than 500 pages

and oral argument expected to exceed 1 day);

f. The number of appeals and Opposed Motions actually set

down has been increased and are heard every day of the

week;

g. When matters become part-heard, practitioners are

required to submit a report to the Judge President to

explain how the time allocated was spent and why the

matter had not been finalised. This is necessary if new

dates are to be allocated for the continuation of the

matter and enables the head of court to keep an eye on

the optimum utilization of court time;

h. A Rule 37 conference before a judge has been made

compulsory in complex matters which warrant the

allocation of a special hearing date;

i. An application for a date on the Opposed Motion Roll

should be accompanied by an indication of the time

required for arguments.

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1.2. Although the NGHC has not yet implemented a case

management system20, there are strong indications that in

South Africa too, the orthodox adversarial process is seen to

have limitations in effectively addressing the problem of case

backlog. From our discussions with the JP and DJP of the

NGHC it became apparent to us that although only informally,

they are implementing some form of case management: If

parties want to obtain trial dates on preferential basis

because of the exigencies of the case, they approach the DJP

for a pre-trial conference. The DJP would then first determine

if there are likely to be any interlocutory applications and

those must be disposed off before the matter is assigned to a

judge for hearing. This procedure is clearly intended to make

sure that a case is ripe for hearing so that it does not get

bogged down with sideshows during the actual trial. We were

also informed that where cases become part- heard or do not

proceed on the dates allocated, the parties are required to

give reasons for the delay and specific directions are given for

the future conduct of the case.

1.3. From copies of documents handed to us by colleagues during

our visit to the NGHC, we established that some Provincial

High Courts have already implemented limited reforms in

20 Speaking to colleagues from South Africa we know that no other Provincial High Court has
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 45 of 120
respect of Rule 37 21 of the Uniform Rules aimed at

compelling litigants to properly narrow issues and ensuring

that the matter is ripe for hearing. In the South Gauteng High

Court, a practice direction has been issued to require

discovery to take place before the pre-trial conference.

Should discovery be made only after the holding of a pre-trial

conference, the parties are required to hold a further pre-trial

conference. A matter is only considered ripe for hearing and

therefore allocation to a judge if, at the roll call: (a) the parties

have seriously endeavored to narrow the issues and to

explore settlement; (b) there are no outstanding requests for

admissions or particularity and no outstanding requests for

documents; (c) where applicable the experts have met and

produced a joint minute, and the matter is ready to

commence and to run continuously until conclusion. Practice

Note 6.12, paragraph 3.4 states:

“If it appears the matter cannot run continuously to a


conclusion within five (5) days due to the prevention of substantial
compliance with Rule 37, the matter may be placed under case
management22 in the hands of a designated Judge as contemplated
in Rule 6.3 and may on application be granted a preferential trial
date when a new trial date is sought‘’ (My emphasis)

21 This rule is the same as Namibia’s Rule 37 , providing for the holding of a pre-trial conference
after close of pleadings and before requesting a trial date between the legal practitioners of the
parties (without a judge) in order to find ways to curtail proceedings. In South Africa too,
experience has shown that the Rule 37 procedure has become a mere formality and rarely any
serious effort is made to curtail proceedings by properly defining the issues or narrowing areas of
dispute.
22 ‘’ Case management ‘’ is not defined

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1.4. The practice directions also make it possible for a party to

request that a judge preside over a pre-trial conference. A

party is now also entitled to request the intervention of the

registrar in the fixing of a hearing date for a Rule 37

conference. In respect of experts, the practice direction states:

“a. Where there are overlapping experts, the experts shall


meet and produce joint minutes indicating their endeavor to settle,
and failing settlement, narrowly defining their differences; b. In such
a case the legal representatives shall, before commencement of trial,
hold a pre-trial conference to achieve the objectives of Rule 37 with
regard to the issue or issues arising between the overlapping experts.
‘’ 23

2. BOTSWANA

2.1. Although the case load in the High Court of Namibia is much bigger

than its Botswana counterpart, Botswana too experienced a serious

problem with case backlog. The civil procedure reforms in

Botswana geared to addressing their case backlog were actuated by

the length it took for cases to be finalized. It was recognized that the

delay in completing cases was due to the fact that litigants (and their

lawyers) controlled the pace of litigation.24

2.2. Botswana was faced with too many cases which officially were

considered to be pending before the Courts (the so- called dead

23 In Natal, Para. 29(f) of Practice directive 31 now requires that in RAF cases the parties’ experts
prepare in advance of trial a ‘’summary clearly and concisely setting out areas in which their
respective experts agree as well as areas in which they disagree’’.
24 Paper presented to the delegation by Mr. J. Manzunzu (Deputy Registrar, Legal administration

Division) on 5 May 2010.


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 47 of 120
wood) but had in reality become stale as the parties no longer had

interest actively pursuing them. There was also endemic

disappearance of court files because of the absence of a digital

recording and retrieval of files. Botswana was also plagued by

incessant postponement of cases resulting in there being too many

pending cases before the courts.

2.3. Botswana’s response to the above problems was the introduction of

a computerized court record management system (CCRMS) as a

precursor to the implementation of JCM. The CCRS enables the Court

to scan all documents received in hard copy to be stored in digital

form. This, we were informed, has made it possible for documents to

be retrieved with great ease and has the obvious advantage that

important file information is not lost. The Chief Justice stated to me

that implementation of JCM would not have been possible without

CCRMS.

2.4. With the introduction of JCM Botswana moved away from a

litigant/lawyer driven litigation process to one driven by the

judiciary and in which the judge assumes the role of an ‘’active case

manager’’. 25The system operates on the basis that every case filed

with the Court is assigned randomly to a specific judge (docketing)

who then manages the case until completion. The managing judge

25See Order 42(1) of the Rules of the High Court of Botswana: Statutory Instrument No. 40 of 2008,
supplement C Botswana Government Extraordinary Gazette dated 19th may 2008.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 48 of 120
advances the case by presiding over CMC’s and regularly entering

case management and scheduling orders. If any interlocutory

application is to be heard in the case the managing judge hears and

disposes the same.26 The judge also conducts the PTR and fixes the

trial date for the matter.

2.5. As soon as practical after entry of appearance to defend an action or

giving of notice of opposition in an application, the judge schedules

an ICMC with the parties and their counsel. Before the ICMC the

parties are required to ‘’confer’’ about the nature and basis of their

claims and defenses, the possibilities for a prompt settlement or

resolution of the matter and to prepare a joint case management

report concerning their discussions.

2.6. At the ICM the following issues are discussed amongst others: the

need for interlocutory motions and the dates for such motions; the

admission of facts and other evidence by consent of the parties; the

control and scheduling of discovery, expert evidence and

examination of witnesses; narrowing the field of dispute between

expert witnesses; the date for additional CMC’s and the final pretrial

conference; the possibilities of settlement or possible mediation.

26 Order 28 of the Botswana High Court rules deals with applications for directions generally.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 49 of 120
2.7. Mr. Manzunzu reported to us, and this much was confirmed by the

Chief Justice, that the introduction of JCM in Botswana has resulted

in disposal of dead cases; reduction of backlog 27; reduction of

waiting time; equal distribution of work amongst judges ; more and

more settlement of cases; reduction in legal costs and public

confidence in the administration of justice. The Botswana experience

with the implementation of JCM resulted in increased work load for

the judges and stretched the legal practitioners who are expected to

appear in separate courts at the same time.28

2.8. The other significant changes brought about in Botswana with the

new rules introduced in 2008 are the following:

2.8.1. Dismissal for want of prosecution

In terms of order 23 of the Rules of the High Court of

Botswana29where in any action no step has been taken by

either party for six months or more, a party may apply for its

dismissal. If neither party applies for such dismissal, the

registrar ‘’shall’, with notice to all parties, list it before the

judge on a motion day for dismissal for want of prosecution. If

the judge decides not to dismiss the case, the judge ‘’shall’’

impose conditions for the future conduct of the case and give

directions for its expeditious disposal.

27 According to Mr. Manzunzu, the High Court of Botswana ‘’cleared a total of 21074 cases for the
two divisions of the High Court from 1 February 2008 to 31 March 2010’’.
28 See: CIMS newsletter, March 2010, vol.3 issue 1.at p2.
29 High of Botswana Rules, supra

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2.8.2. Pleadings of substance

Pleadings are governed by Orders 24 - 26. The full statement

of the plaintiff’s claim is a ”declaration" and it is required to

not only state the relief the plaintiff seeks but to include (a)

an affidavit or affidavits by persons having direct knowledge

thereof and setting out the facts relied upon and (b) copies of

the documents to be relied upon .30 A claim in reconvention

is governed by the same rules. As far as the plea goes, the

defendant is also required to file with the plea affidavits by

persons having direct knowledge of the facts relied upon and

all documents relied upon for the defense. Where the judge is

of the opinion that any allegation of fact denied or not

admitted by the defendant ought to have been admitted, the

judge may make such orders as shall be just with respect to

extra costs occasioned by it having been denied or not

admitted.

2.8.3. Postponements are discouraged

In discussions the Chief Justice of Botswana informed us that

as a matter of judicial policy, postponement of cases is

30Rule 18 of the High Court of Namibia Rules of Court governs pleadings. Our practice prohibits the
pleading of evidence and only facts may be pleaded. Evidence is led at the trial when both the judge
and the opposing side hear it for the first time. A pleading must not be a preview of the evidence
proposed to be led at the trial: Moaki v Reckit and Colman (Africa) ltd 1968 3 SA 98 at102.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 51 of 120
frowned upon and is allowed only in exceptional

circumstances.

2.8.4. Trial

Although witness testimony is received viva voce at the trial,

a judge may for ‘’sufficient reason’’ order that all or any of the

evidence to be adduced at the trial be given on affidavit.

2.9 For the proper implementation of JCM, the following administrative

measures were introduced at the High Court of Botswana: For each

judge a mini (individualized) registry was created hosting all the files

under the management of the specific judge. A scheduling clerk was

appointed for each judge who receives all pleadings meant for the

judge to whom he or she is assigned, scan the same for digital filing

and bring it to the attention of the judge for action.

2.10. The judges of Botswana stressed to us that the new ethos of urgency

in disposing litigation speedily and with minimum delay and costs

runs the risk of being frustrated if the appellate judges do not give

support to the new case management philosophy. I was informed by

the Chief Justice of Botswana that a seminar was being planned with

judges of appeal to sensitise them about case management ethos and

the Appeal Court’s role in the process. A similar concern has been

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expressed in E & W where the Court of Appeal has been criticized31

for not giving leadership through consistent interpretation of JCM

rules so as to promote the values of case management. This led to the

Jackson Report recommending that the Court of Appeal’s bench,

when that Court is called upon to interpret CPR rules on JCM, to be so

constituted as to always include appeal judges with relevant

experience. (Jackson Report Ch.39 at 399 Para. 8.1(vii)).

3. MALAYSIA

3.1. Prior to the reforms introduced in Malaysia cases generally took long

to be finalized. They also had a high incidence of part-heard matters

- and the absence of computerization made the work of the court

registry very difficult. There were also too many postponements

resulting in matters taking long to be finalized. Because of the

absence of IT to support the work of the courts, documents were

manually generated, stored and retrieved. As a result there was a

high incidence of files going missing.

3.2. To address the problems that they faced, Malaysia embarked on a

large scale computerization of the Court system followed by the

introduction of JCM. Malaysia’s computerized case management

system is a recording of events, incorporating a diary. The

Commercial Division however includes a record management

31
See summary of the criticism by Prof. Zuckerman in the Jackson Report, Ch.39 at 387 Para.2.2.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 53 of 120
system, based on scanning of documents. Malaysia is at the present

moment working towards introducing e-filing. The Audio / Video

recording system introduced in Malaysia’s courts considerably

reduced trial time in that proceedings in court are captured on video

and can be played back at any time during or after the hearing ,

obviating the need for the judge to take down evidence in long hand.

Trial time was further reduced by requiring parties in civil

proceedings to exchange witness statements in advance of trial. At

the trial, the witnesses’ evidence in chief is received by means of

affidavit followed immediately by cross-examination and then re-

examination. We were able to attend a Court in session to observe

this and were able to see the saving of time brought about by this

innovation.

3.3. Once litigation is commenced in Malaysia, its progress is no longer

determined by the litigants or their lawyers but is driven by the

judiciary. Working under the supervision of a managing judge, the

registrar and his staff ( who are all legally qualified and hold judicial

appointments) schedule CMC’s with litigants and their lawyers to

narrow issues, hear and determine interlocutories and do get the

case trial –ready.

3.4. The function of managing cases rested originally with the judges but

was later relocated to the Registrar’s jurisdiction to achieve a

measure of uniformity as practice showed that judges’ approaches to


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 54 of 120
case management differed radically and thus producing inconsistent

outcomes which caused uncertainty. 32Although ordinarily CMC’s are

conducted by the professional registrars, that role is assumed by a

judge specially designated for the purpose in respect of matters of

some complexity.

3.5. There is no fixed number of CMC’s during the life time of a case. The

amount of CMC’s is determined by the complexity of the case and can

be scheduled either at the request of the parties or by the Court

acting of its own motion.

3.6. In Malaysia the case management process includes the registrar’s

office regularly calling upon the parties to report progress to comply

with directions intended to move the case forward.

3.7. The Malaysian judiciary is in the process of implementing measures

to make ADR compulsory. The message we received very clearly

from the discussions we had was that their experience has shown

that court –connected ADR is an important adjunct to court

processes. The President of the Law Society of Malaysia pointed out

to us the important role played by ADR in the quest to reduce case

backlog and cautioned that the court system would still be

32 This much was confirmed by the President of the Law Society of Malaysia
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 55 of 120
overloaded if in deserving cases resort is not had to ADR in the

resolution of disputes.

3.8. In the realm of criminal practice, Malaysia has codified plea

bargaining and are able to record a reduction in criminal trials

proceeding to trial as plea bargains are legally binding once

concluded and routinely result in many guilty pleas. We were

informed that the Malaysian judiciary conducts meaningful criminal

pre-trials to limit issues in dispute and to weed out the calling of

unnecessary witnesses that only prolong trial.

3.9. Malaysia also operates a strict protocol against postponement of

cases and only allows it in exceptional circumstances. We were

assured that when a trial date has been fixed in Malaysia there is a

reasonable certainty that it will proceed and be completed.

3.10. Malaysia has institutionalized various divisions of the Court

specializing in specific areas of the law. Judges are encouraged to

specialize and special care is taken to assign judges to areas of law

they show an interest in and aptitude for. Judges are normally left in

a division for 2 years whereafter they are rotated to another

division. We were informed that this type of specialization makes

judges productive and improved on their delivery of judgments.

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3.11. Similar to the position in Botswana , Malaysia too experienced that

lawyers were overworked in the immediate aftermath of the

introduction of JCM as more and more cases were being heard on a

continuous basis and thus stretching the resources of the

practitioners who had to make often conflicting appearances at case

management hearings and at trials. The President of the Law Society

of Malaysia confirmed this and cautioned that before we implement

a case management regime we should prepare the profession very

well for that.

4. SINGAPORE

4.1. We did not get a very clear answer whether or not the Singapore

judiciary practices specialization by judges. We were able to

establish though that there is a select group of judges who do

criminal trials. Certain judges are also seen as experts in particular

fields of law and are normally assigned cases involving their fields of

expertise.

4.2. Singapore operates a system of JCM. Unlike Botswana, in Singapore

CMC’s are centralized and are conducted by the registrar and the

staff who hold judicial appointments. The registrar and his staff hear

interlocutories and generally are involved in narrowing issues and

seeing to it that all preliminary issues are attended to before the

matter proceeds to trial before a judge. In rare cases a judge may

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conduct a CMC, and once that happens, such judge will not conduct

the trial.

4.3. A pool of judges is assigned to hear interlocutories. The pre-trial

process involves regular monitoring of a case to determine why

there are delays if any. If the case is not progressing, the parties are

called in to ascertain the reason for inaction and appropriate orders

and directions are given to advance the case. If no action is taken in a

case for a period of 12 months or more, the case is deemed to have

lapsed and can only be resurrected on good cause shown.

Postponements are discouraged and judges are required to report to

the head of court on why any postponement was granted.

4.4. If a case becomes part-heard, it is returned to the centralized pretrial

process to determine the true reason for the postponement.

Appropriate directions are then given for the future conduct of the

case and dates allocated for the hearing of the matter.

4.5. Singapore places a very high premium on ADR which is an essential

part of the system. Judges at the very early stage of the process

recommend to the parties to consider ADR if the judge feels it

desirable.

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5. OTHER COMMON LAW JURISDICTIONS: COMPARATIVE VIEW

Much of the reforms undertaken in E & W and other common law

jurisdictions were inspired by the seminal Woolf Report.33

5.1 AUSTRALIA

5.1.1. In Australia where they have long abandoned the adversarial

process in which litigants are the prime drivers of litigation

once commenced, the Court has said the following in defense

of JCM:

”In the past it has been left largely to the parties to prepare

for trial and seek the court’s assistance as required. Those times are

long gone…It is recognized by the courts that the resolution of

disputes serves the public as a whole, not merely the parties to the

proceedings’’.34

5.1.2. In the Federal Court of Australia35, JCM takes the form of the

Individual Docket System whose objective is stated pithily as

"the just resolution of disputes as quickly, inexpensively and

efficiently as possible’’. By means of the Rules of court and

practice directions issued thereunder, the Court, in

furtherance of the stated objective, has laid down rules and

principles to:

33 Lord Woolf Access to Justice : Interim Report to the Lord Chancellor on the Civil Justice System in
England and Wales (1995)
34 AON Risk Services Australia Ltd v Australian National University [2009] HCA 27 [113]
35 See the Practice Directions of the Federal Court of Australia : CM6 and CM 7 :

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(i) Facilitate the early identification and narrowing of

issues by requiring the parties to exchange relevant

documents and material evidence as early as possible

in the litigation process. The Court is given power to

direct that the parties’ experts meet with the aim to

reach agreement and if they are unable to agree to

specify the reasons for being unable to do so;

(ii) To control and minimize costs: by requiring experts to

meet as early as possible in order to identify areas of

agreement and of disagreement. The experts are

encouraged to prepare joint reports; by requiring the

parties to meet as soon as possible once litigation

commences so as to discuss and reach agreement

about the protocols to be used for the electronic

exchange of documents and generally other issues

relating to efficient document management in the

proceeding.

5.2 HONG KONG

5.2.1. In Hong Kong, Practice Directive 5.7 creates the “Long Cases”

List. In terms of it any case lasting for 15 days or more (the

parties are required to meet as soon as pleadings close and to

estimate the number of days required for the completion of

the matter) may be assigned to a managing judge 28 days

after close of pleadings. That case would then remain with the

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 60 of 120


managing judge until finalization. The managing judge takes

charge of the case management of the action and may give

directions and set a timetable for the conduct of the

proceeding as the judge sees fit.

5.2.2. The managing judge alone entertains all the interlocutories

arising in the case, unless to do so will cause undue delay or

other difficulty. The system makes provision for three CMC’s:

Initial case Management Conference; Further case

Management Conference, and the Pre-Trial Review. Three

days before the first CMC the plaintiff is obliged to file with

the Court a CMC bundle containing copies of the pleadings,

witness statements, expert reports and a draft index of the

document bundle. At that CMC the Court (a) reviews the steps

the parties have taken in the preparation of the case, in

particular their compliance with any directions that the Court

may have given; (b) decide and fix a timetable for the steps

which are to be taken by the parties to secure the progress of

the case; (c) ensure as far as it can that all admissions that can

be made and all agreements that can be reached between the

parties about the matters in issue and the conduct of the

claim are made and recorded; (d) ascertain the parties’

attempt or intention to undergo ADR. Counsel who will attend

to the matter at the trial are required to attend these

conferences and may only be absent with leave of the

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managing judge. It is the responsibility of the managing judge

to allocate the date (s) for the hearing of the action.

5.2.3. At least 3 weeks before the trial date, the parties are required

to file an agreed list of the issues which will fall to be decided

in the action and in default of agreement, each party is

obligated to serve on the other party (ies), with a copy to the

Court, a list of the issues that the party concerned considers

fall to be decided.

5.2.4. ADR is an important part of JCM in HK.36 Para. 1, Part A of

Direction 31 states:

“An underlying objective of the Rules of the High Court and


the District Court is to facilitate the settlement of disputes. The Court
has the duty as part of active case management to further that
objective by encouraging the parties to use an alternative dispute
resolution procedure (“ADR”) if the Court considers that appropriate
and facilitating its use …. The Court also has the duty of helping the
parties to settle their case. The parties and their legal representatives
have the duty of assisting the Court to discharge the duty in question
‘’. (My underlining for emphasis)

Para 4 states:

“In exercising its discretion on costs, the Court takes into


account all relevant circumstances. These would include any
unreasonable failure of a party to engage in mediation where this

36 See HK Practice Direction -31


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 62 of 120
can be established by admissible materials. Legal representatives
should advise their clients of the possibility of the Court making an
adverse costs order where a party unreasonably fails to engage in
mediation’’.

5.3. ENGLAND AND WALES

5.3.1. Following the acceptance of the major recommendations of

the Woolf Report, the Rules of Court (White Book) in that

jurisdiction were substantially revised in the form of the Civil

Procedure Rules (CPR) that have now formally implemented

JCM in E & W. The Woolf Report had stated that ‘’ there is no

alternative to a fundamental shift in the responsibility for the

management of civil litigation in this country from litigants

and their legal advisers to the courts’’ (Woolf Report, Ch.5.s2).

5.3.2. The CPR therefore made the management of cases filed with

the Royal Courts of E & W the primary responsibility of the

judiciary and no longer of the litigants and their lawyers.( See

Chapter 39 of the Jackson Report at 386 for how the system of

case management is likely to be further improved in E & W).

5.3.3. The Courts in E &W are now able to conduct CMC’s to limit

issues. Discovery procedures have been streamlined to

require parties to save costs by not engaging in unnecessary

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 63 of 120


discovery37. Detailed rules exist to limit costs associated with

expert evidence: in particular emphasis is being placed on

compelling parties to agree to joint expert reports. Parties are

required to file witness statements and generally new

jurisprudence is being developed to require litigants to

conduct litigation in a cost-effective way- the

‘’proportionality’’ of costs doctrine.

5.3.4. The proportionality of costs rule requires litigants to consider

carefully before incurring an item of costs in furtherance of

litigation whether there is a cheaper way of achieving the

same objective. For example, if a window of opportunity

exists to settle a matter or to seek mediation that should be

taken advantage of. As the Jackson Report states (Ch.3 at p.36

Para 5.4): ‘’ the principle of proportionality requires that the

costs burden cast upon the other party should not be greater

than the subject matter of the litigation warrants’’. 38

37 The Jackson Report states (Executive summary at xxiii Para.6.4): “Disclosure can be an expensive
exercise (particularly in high value, complex cases), and it is necessary that measures be taken to
ensure that the costs of disclosure in civil litigation do not become disproportionate.’’
38 For a judicial consideration of the proportionality of costs doctrine see: Lownds v Home Office

[2002] 1 WLR 2450 at [1] - [10] and [23] – [40].


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 64 of 120
PART E: NAMIBIA: THE WAY FORWARD

1 JUSTIFICATION

Even the most fervent adherent of the adversarial system such as ours in

which litigants and their legal practitioners play the dominant role, will

recognize that the system is easily manipulated to achieve delay. Experience

has shown that once the trial has started, invariably it takes too long to

finalize. The following excerpt from an address given by an Australian judge,

the Hon Murray Kellam AO in 2010 could just as well have been written

about present-day Namibia, and it is instructive to quote it at some length.39

”When I commenced practice nearly 40 years ago, civil justice operated much
as it had for the better part of nearly a century before that time. Writs were issued,
defenses were filed, requests for further and better particulars of pleadings were
exchanged, interrogatories were delivered, general discovery took place, and in due
course the matter would be listed for trial. At trial one would hear what the opposing
witnesses would say for the first time. There was no requirement for the parties to
exchange anything other than pleadings, and in some circumstances affidavits in
support of certain claims. There was no exchange of witness statements and in
particular expert witness statements. In many ways trial was by ‘ambush’ .Although
the timetable of pleading was dictated by the court rules, in reality the legal profession
controlled the process of the litigation. More often than not the case settled at the
court door. However if the matter did go to trial, counsel would be required to
commence the case with the assumption that the trial judge had done no preparation
and had little if any knowledge of the nature of the proceeding. I can well recall
standing and reading the pleadings to the trial judge at the commencement of a trial.
The tradition in Australia, as in the UK was an “oral” one and very little
documentation, apart from the pleadings, and perhaps affidavits in support, was
provided to the judge. Not surprisingly this process created substantial delay for the
parties, as well as incurring great cost for the litigants and also for the public purse.’’

39 “Delivering Justice – International trends in Civil Justice’’, Lecture delivered under the auspices of
the Helen Suzman Foundation at Country Club Auckland Park- Johannesburg -3 march 2010.
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2. DIRECTION OF REFORM: STRATEGIC OBJECTIVES DEFINED

The overarching recommendation in this report is the acceptance that the

focus should move from a litigant/lawyer driven litigation process to one

that is managed by the Court. The early disposal of litigation should be seen

as a strategic objective of great public importance and not just the concern

of litigants.

Against the above imperative, the overhaul of the litigation process in

Namibia must be informed by the following objectives:

2.1 Reform of the rules of Court relative to pleading to require litigants

to plead both facts and evidence, identify the main documents and

witnesses they will rely on in support of their case and to provide

summaries of the witnesses’ evidence. Parties must be encouraged

generally to explore settlement as early as possible by requiring

them to make automatic discovery as soon as a case has commenced.

2.2 To introduce changes to the rules to institutionalize case

management conferences presided over by judges, with specific

objectives aimed at narrowing issues, encouraging ADR , exploring

ways to limit costs , speeding up the process by means of regular

monitoring by the Registrar , and generally to curtail the trial

proceeding.

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3. SPECIFIC RECOMMENDATIONS

3.1 OF GENERAL APPLICATION

3.1.1. The objectives of JCM

(i) The objectives we seek to achieve with JCM must be

clearly spelled out in the Rules of Court and the

Practice directions: the creation of an efficient and

cost effective civil dispute resolution service

through a court-managed litigation process.

(ii) Upon the implementation of JCM, the management of

cases once filed with the court registry is the

responsibility of the judiciary and not the litigants and

their lawyers.

(iii) The various processes encompassing JCM must be

clearly spelled out.

(iv) The rules must clearly spell out that litigants and their

lawyers have an obligation to cooperate with the Court

to expedite litigation in the public interest.

3.1.2. Leveraging IT

3.1.2.1. 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

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and retrieval of court documents becoming a drag

on the effective functioning of the court processes.

3.1.2.2. The Jackson Report (Ch.43 at 436 Para. 3) sets the

following requirements for Civil Courts in the 21st

century and I would adopt them for the purpose of

this report as applicable to Namibia:

”3-1 The civil courts need an IT system which has


the following capabilities:

(i) Electronic filing for claim forms, statements of case,


witness statements, expert reports and other
documents lodged.

(ii) The ability to maintain all documents lodged by the


parties to a case or created by the court in a single
electronic bundle relating to that case.

(iii) The electronic bundle for each case should be


accessible to the parties, court staff and the judge by
means of an extranet with unique password.

(iv) Digital signature technology to authenticate


documents and correspondence sent by parties to the
court or to each other.

(v) A facility for online payment of court fees and all other
payments into court.

(vi) Scanning equipment at all courts, so that parties


without IT equipment can lodge documents at court.
A national database on which the electronic bundles
for each case are held (so that cases or hearings can
be ready without any need for transport of papers). ‘’

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3.1.2. Benchmarking

The LSN should initiate contact with their counterparts in

jurisdictions where JCM is being practiced so as to make

possible imparting of knowledge to the Namibian

practitioners on the workings of JCM.

3.2. OF SPECIFIC APPLICATION

3.2.1. Civil Litigation

3.2.1.1. Individual docketing:

It is proposed to adopt a system of docket allocation

to a particular judge in long cases (fixed trial

matters).

3.2.1.2. Adopt facilitative/dispositive measures

It is proposed to introduce provisions to the effect

that a case would lapse and can only be resuscitated

upon good cause shown if a party fails to take any

steps to prosecute it for 12 months or more.

3.2.1.3. Introduce Court-Connected ADR (diversionary

measures)

I propose that ADR should become an adjunct to our

civil process - initially voluntarily/ by consent and

eventually to be made compulsory through

legislative intervention. Resources should be

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mobilized to train mediators and arbitrators that

will be accredited to the Court to make it possible

for the court to introduce a court-connected ADR

process on a voluntary basis.

3.2.1.4. Reform of the Civil Procedure Rules

The following principles40 should underpin the new

civil litigation regime that is to be introduced:

(i) Spell out clearly the powers of the judge at

the various CMC’s, including the directions

that the Court may issue to move the case

forward.

(ii) Spell out clearly the range of sanctions that

the Court may impose for default of

compliance with the case management

directions.

(iii) Empower the JP to issue practice directions

to give effect to JCM and to issue a set of

standard directions that judges will have

handy for the purpose of case management.

(iv) Empower the litigants to explore ADR on a

voluntary basis before the matter is allocated

40These principles will aid in the interpretation of the new case management rules and will
hopefully be of assistance to the Supreme Court when it is called upon to sit on appeal against case
management decisions of the judges of the High Court.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 70 of 120
a date for a hearing: Either party to litigation

must enjoy a right to call upon the other(s) to

seek an amicable resolution of a matter,

including through ADR. Only if genuine

attempts at amicably resolving a civil dispute

are demonstrated to the Court, may the

parties proceed to set a matter down for trial.

(v) Require that a statement of claim be

comprehensive followed by a comprehensive

defense. Parties should plead both facts and

evidence and attach the main documents on

which the party’s case is based; list all the

main witnesses to be called and provide

summaries of the evidence they are expected

to give at the trial.

(vi) Introduce new rules on expert evidence to as

far as possible limit areas of disagreement

and encourage litigants to agree a joint

expert report and to prepare a report on

areas of disagreement.

(vii) Require discovery and exchange of witness

statements before the Rule 37 conference (or

equivalent CMC).

(viii) Require that the Rule 37 Conference (or

equivalent CMC) be presided over by a judge:


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 71 of 120
i.e. Initial Case Management Conference: The

ICMC will entertain any interlocutories and

for that purpose 3 clear court days before

that notices of any interlocutories must be

served on the other parties and on the Court.

The ICMC will also issue directions for the

cost effective conduct of the case. The ICMC

and any FCMC will seek to narrow issues and

will record all admissions and areas of

dispute.

(ix) Empower the Court and the parties to call for

FCMC’s for the disposal of any further

interlocutories or for seeking any further

directions; to vary any directions already

given; or at the request of the Court to

ascertain progress in the case.

(x) Make provision for a final CMC to be termed a

Pre-trial review presided over by the trial

judge to make sure the case is ready to

proceed to trial and to fix the trial date. The

PTR should give final directions regarding

what needs to be proved in the most cost

efficient way.

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3.2.1.5. Conduct of the civil trial:

Empower the Court to in appropriate cases order

(especially if the parties consent) that evidence-in-

chief to be received by way of affidavit and only to

be supplemented by viva voce evidence with leave

of Court.

3.2.2 Criminal Matters

3.2.2.1. Create a separate Criminal roll with dedicated

judges; generally encourage some form of

specialization if circumstances permit.

(i) Consideration should be given to the creation

of a separate criminal division at the High

Court manned with judges who show special

interest in criminal work. This is particularly

significant because we now have at the High

Court a good number of former senior

magistrates who have extensive experience in

criminal practice and are well equipped to

undertake such work on a fulltime basis.

(ii) The creation of a discrete criminal division

should lead to the docketing -out of criminal

cases immediately after pretrial procedures to

a bench of selected judges for case

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management until completion. This

arrangement is not intended to preclude the JP

from assigning other judges responsibilities in

respect of the criminal roll, nor would it

exclude him from allocating the judges

assigned to the criminal roll other work

unrelated to criminal cases.

(iii) The judge’s role in Namibia is predicated on

the notion of the “generalist” judge: the judge

is assumed to know every area of the law

relevant to the cases that come before him or

her. Specialization by judges is therefore

discouraged. There is no empirical basis either

in Namibia or abroad to support this view, in

fact, evidence elsewhere, points to the

contrary 41
.This demonstrates that very little

thought has gone into what delay is caused by

judges sitting on cases the substantive law of

which they are unfamiliar with. I know from

own experience that delay in finalizing cases is

at times attributable to a judge sitting on a

41
“Concern has been expressed that occasionally QB judges are asked to try cases in respect of
which they have no existing expertise (despite their excellence in other areas). For example, on
occasions at the start of a clinical negligence action brought on behalf of a child with serious
brain injury the judge has had to request some basic assistance because this type of litigation is
outside his or her experience.79 Costs are liable to increase when a judge is trying a case in an
area with which he is unfamiliar. On occasions this is inevitable and it must, of course, be
accepted. On the other hand, such a situation should be avoided where practicable. In my view
High Court judges, like other judges, ought to record their areas of expertise and interest.80 So
far as practicable, complex cases requiring trial by QB judges should be allocated to judges in
accordance with their specialist skill and experience”: Jackson Report , Ch.39 , p392, Para.4.5.
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 74 of 120
matter in an area of the law unfamiliar to him

or her. I am convinced that if the High Court

of Namibia is to become a value for money

institution, judges must be encouraged to

develop expertise in particular areas of court

work and that the allocation of work to judges

must have some relationship to either the

interest or expertise of the judge in a

particular area of court work.

3.2.2.2. Codify plea-bargaining

The PG must consider approaching the Minister of

Justice to enact primary legislation to codify plea-

bargaining in Namibia.

3.2.2.3. PG to consult JP on long cases

The PG is encouraged to engage the JP in respect of

cases expected to last for 30 days or more so that

(resources permitting) acting judges are appointed

to hear long criminal trials so as not to cause

disruption in the organization of the court roll.

3.2.2.4. Streamline criminal pre-trial hearings

Immediately reorganize the criminal pre-trial roll to

separate mere mentions (‘’Mentions Roll’’) from

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cases where pretrial memoranda have been

exchanged so that sufficient time is devoted to

narrowing issues and more accurately estimating

the days necessary to start and finish a criminal trial

( ‘’Pre-trial review’’).

4. STAKEHOLDER BUY-IN

4.1. The introduction of JCM in Namibia will require a complete

paradigm shift and its success will only be assured if all involved in

the process recognize that it can no longer be business as usual.

4.2. It is important that those who will be affected by the proposed

reforms buy-in, or, at the very least, understand what the envisaged

reforms are intended to achieve. For this purpose it is proposed to

hold a stakeholders conference to discuss the report and the

recommendations therein for comment and critique. The following

are possible stakeholders who should be approached to participate

in the stakeholders conference: the Namibian Police; LSN; Namibia

Law Association; Society of Advocates; Ombudsman; PG;

Government Attorney; Prison Service; Motor Vehicle accident Fund;

ADR body of Namibia; Law Drafters; Directorate of Legal Aid; The

Labour Commissioner and Government IT specialists. The

stakeholders’ conference should be followed by the appointment of a

drafting committee to assist the JP in drafting new Rules of Court,

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practice directions and a menu of standard case management

directions.

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PART F: NOTES OF INTERVIEWS WITH COURT ADMINISTRATORS
IN JURISDICTIONS COVERED BY VIST

1 SOUTH AFRICA, NORTH GAUTENG HIGH COURT

DISCUSSIONS WITH NGOEPE, JP:

JUDGES:

(a) Judge President –

As head of the Court no cases are assigned to the Judge

President. He is responsible for judges’ allocation on term roll,

without reference to specific cases.

(b) Deputy Judge President –

No specific cases are assigned to the DJP.

Responsible for execution of term roll compiled by JP;

Responsible for civil roll call and subsequent assignment of

matters to specific judges;

Responsible for roll management in general.

(c) 31 Permanent Judges and 13 acting judges that deal with roll at

any given point in time.

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1. JUDGES’ CLERKS:

Each judge has a Judge’s Clerk, not necessarily with any legal

background;

Judges’ clerks perform duties similar to private secretaries in

Namibia, but do not do any typing.

2. TYPING:

All done by stenographers;

JP and Deputy-JP each has an assistant

Stenographers type record in court as case continues, and uses

digital recording as backup to verify record afterwards

3. CASE & JUDGES DIVISION/ALLOCATION:

The JP stated that the idea of the Commercial Court was discontinued

because it was seen as elitist. He operates the policy that judges must

be generalists as confining judges to particular areas of work would

compromise their prospects for elevation to the Court of Appeal

where they are expected to be all rounded.

4. CRIMINAL TRIALS ARE CONDUCTED THROUGH:

Circuit Court and Matters set down at HC: North Gauteng and

South Gauteng

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Roll is compiled by Prosecutor General

Court provides the judges

A judges does criminal court for one term and is then moved to

the civil roll in order to stimulate professional growth

Partly heard matters are set down for the first available open

date on the case diary and dates are given through to JP in

order to make specific judge available to finalize part- heard

matters.

5. UNOPPOSED MOTIONS

Groups of judges attend to unopposed Motions

A judge remains on unopposed motion court for a two week

period

Group 1 does reading on previous Friday, Tuesday & Thursday

and sits in Motion court on Monday, Wednesday and Friday

Group 2 does reading on Monday and Wednesday previous

Friday, and sits in Motion court on Tuesday & Thursday

6. OPPOSED MOTIONS

Roll call is conducted on Monday at 14h00 by the most senior

judge of group of judges

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Judge responsible for roll call then assigns cases to judges,

taking into consideration the estimated duration of each case

Judges perform duty on opposed motion roll for a period of 1

week

7. 3RD COURT (LENGTHY OPPOSED MOTIONS)

Judge is assigned for 3rd court; and

Performs duty for a maximum of one week on 3rd court

Matters of 8 lever arch files and more are placed in 3rd court

Up to 3 matters per judge per week are placed on this roll

8. CIVIL TRIALS (SIMILAR TO OUR FLOATING ROLL)

A judges performs duty on civil trials for a two- week period

Every morning there is a civil roll call conducted by DJP, where

matters rolled over from previous day and matters set down

for specific day are called;

During Civil Roll Call matters settled are disposed of by making

settlement agreement an order of Court. Matters which are to

be postponed or removed from the roll are also disposed off in

that way and matters remaining on the roll are given to the

available judges to proceed with trial.

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9. SPECIAL COURT (SIMILAR TO NAMIBIA’S FIXED ROLL)

Matters expected to run for 5 days and more

A group of judges are assigned for this roll for a whole term

If matter does not finish within the set down period,

application is made to JP for continuation of trial at later stage,

but attorney must account for each hour of the initial set down

period.

Partly heard matters get preference to any other matter on the

roll

10. URGENT APPLICATIONS

One judge is designated for urgent applications alone

This judge also deals with semi-urgent applications

Hears up to 110 applications per week

Performs duty on urgent application roll for 1 week

11. APPEALS

Groups of judges, who sit every alternative day

Appeal duty in general follows civil trial duty,

Judges should do reading whilst doing civil trial duty

A judge performs Appeal duty for two weeks in a row

Group 1 sits in Motion court on Monday, Wednesday and Friday


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Group 2 sits in Motion court on Tuesday and Thursday

Appeals are set down for 5days in the week

Each judge will sit on 25 Appeals during his/her Appeal duty

session which will run for 2 weeks

12. TYPICAL TERM DUTY OF A SINGLE JUDGE ON CIVIL:

- Week 1 Civil Trials (our floating roll) – every day

- Week 2 Civil Trials (our floating roll) – every day

- Week 3 Appeals Monday, Wednesday & Friday

- Week 4 Appeals Tuesday & Thursday

- Week 5 Urgent Applications

- Week 6 Unopposed Applications, Tuesday & Thursday

- Week 7 Unopposed Applications, Monday, Wednesday &

Friday

- Week 8 3rd Court

- Week 9 Civil Trials (our floating roll) – every day

- Week 10 Civil Trials (our floating roll) – every day

- Week 11 Opposed Applications, whole week every day

Civil Trials are in general not set down for the last week in a term, in

an attempt to avoid matters becoming part-heard.

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13. RECESS DUTY:

Part-heard matters are set down for continuation during recess

periods but that does not count as recess duty. This practice is

discouraged because it has the potential to tie the JP’s hand in

assigning recess duty. Recess periods are utilized to write reserved

judgments.

DISCUSSIONS: VAN DER MERWE, DJP:

1. APPEALS –

 The norm for appeal matters allocated to judges are between 400 &

600 pages per sitting

 Assigning matters to judges using this norm ensures that appeals are

evenly spread amongst judges according to the number of pages

which will require reading.

2 MOTION -

 Previous Procedure vs. Current Procedure

 Previous procedure was abolished at Northern Gauteng, because

Judges being appointed from academia and the magistracy couldn’t

cope with the workload and pressure (e.g. 200 matters on

unopposed roll)

2.1 Previous Procedure:

2.1.1 Opposed & Unopposed Motion Roll

 3 Judges with 3 courtrooms allocated from Monday –

Friday

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 On Monday Judges would attend to unopposed motion

Court, including all opposed rule 43 & Summary

Judgments.

 If any unopposed and/or opposed rule 43 & Summary

Judgments remain on Tuesday morning, they would first

be finished.

 On Wednesday, Thursday & Friday judges on this roll to

the opposed motions

2.1.2 Urgent Roll:

In addition to the 3 judges mentioned hereinbefore, a fourth

judge would attend to all urgent applications during the same

period

2.1.3 3rd Motion Court:

 The 3rd motion court dealt with matters with more than

500 pages, and which will last for more than 1 day;

 Separate court and judge assigned to these matters, which

was set down from Monday - Friday.

2.2 Current Procedure

2.2.1 Unopposed Motion:

Unopposed Motion include all unopposed motions

Every day of the week; 3 courts and 3 judges

Try to set down not more than 50 per court per day, but

not always possible to limit matters

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2.2.2 Opposed Motion:

Judges in 4 courts on duty for 1 week

Court in session Monday to Friday

Heads of argument filed two weeks in advance

Files handed to judges 2 weeks in advance (in practice

doesn’t always work that way, as files / heads get to be

misplaced)

When application made for trial date, practitioners file

Practice Note stating:

o Nature of application;

o Names of practitioners and counsel

o Estimated time required for arguments

Example of Practice Note may be obtained from Van der

Merwe, DJP – WVDMerwe@justice.gov.za

All files must be properly indexed & paginated for opposed

motion roll and heads must be filed

Most senior judge checks files and divides amongst judges

50% of files do not proceed, due to withdrawal, settlement

and/or incompleteness of file.

Matters not proceeding are placed on separate roll, and are

dealt with by the most senior judge together with matters

settled and removed from roll and cost arguments

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3 SPECIAL COURT TRIALS-

 Special Court Trials is the equivalent of our civil fixed roll

 Preferential dates given by DJP on request in matters of public

importance, patents etc (commercial roll)

 10 spaces are left open on trial roll for DJP to utilize on matters

where preferential dates have been given

 Demand Rule 37 being held before judge, after provisional date given

but before permission granted to deliver set down

 In matters where there are a number of interlocutories to be dealt

with before matter may go on trial, a special date with a specific

judge is given to matter, for interlocutories to be dealt with

simultaneously

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2 HIGH COURT OF BOTSWANA, LOBATSE

2.1 COURT STRUCTURE IN BOTSWANA

Court of Appeal (Lobatse), Judges of Appeal appointed for each

session

High Court Divisions (Lobatse & Francis Town), Headed by Chief

Justice.

 Magistrates courts in various districts, Headed by Chief Magistrate

and 2 Additional Magistrates

 Currently busy erecting the Main Division High Court in Gaborone

1.2 PROBLEMS EXPERIENCED WHICH RESULTED IN REFORM

Courts in general experienced inter alia the following problems:

The length of time which cases took to be finalized;

The pace of cases was controlled by litigants;

Inaccurate statistics on finalized cases, due to settlements not

reported at court to be made final order of court

High incidence of missing and misplaced court files;

Loss and misfiling of Court documents;

Unnecessary delays in court process;

Lay litigants found it difficult to navigate litigation process

Insufficient Archive space;

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Records received from Magistrates’ Court, first need to be typed

(record compilation) by High Court Registry;

Litigants who live far from courts had difficulty accessing their

case files and obtaining information;

Litigants without a case number experienced problems making

enquiries on their court files.

2.3 INITIAL SOLUTION ATTEMPTS

Circuit Courts :

 Found to be very expensive

Built more court rooms:

 Most of problems not solved by increase of court rooms;

Appoint more court personnel

Most of problems still not solved by increase of establishment.

2.4 SOLUTION

The incumbent Chief Justice took the decision to computerize the

court system throughout, linking all courts to the system. Two

judges from America were approached for help.

It was decided to computerize court record management,

followed by the introduction of a Judicial Case Management

Procedure.

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2.5 PROCESS TO REFORM

2.5.1 CRMS: Case Record Management System:

 User Requirement Statement (2002) on CRMS;

 Approached Government for funding;

 Year Plan was approved;

 Developers appointed on tender;

 Needs Analysis

 Development

2.5.2 Roll Out:

 Training of CIMS (Computer Information Management

System) Team, consisting of 11 members;

 Change Management , Establishing various Committees, all

chaired by judges, who promoted, trained and inspired end

-users;

 Computer literacy training;

 Pilot sites;

 System training;

 2 teams on data capturing, team 1 captured live files

simultaneously while team 2 captured new files;

 Developed and Roll out to 2 High Courts and 15

magistrates, courts within 5 year plan;

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Magistrates’ Courts not rolled out, because court buildings

are not Government owned and computer network can’t be

installed.

2.6 JCM: JUDICIAL CASE MANAGEMENT

From the CRMS the transformation proceeded with the JCM,

which is not a computer software program, but a change in

business process, whereby the case is managed by the court

instead of by the litigants:

Advice of Judges from America was sought ;

Registrar’s benchmarked with District Court in Arizona during

2007;

Decision was taken to apply JCM in High Court and not in

Magistrates’ Courts;

Informal application was finalized in February 2007;

Formal Application was finalized and implemented in High Court

during February 2008. This implied:

 Registration of Cases and assignment of cases to judges;

 Re-assignment of live cases;

 Restructuring of registries; and

 Regular stakeholder review conferences.

Rules amended in May 2008 (Order 42)

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2.7 RESULT

Successful implementation of both a computerized case record

system, and a judicial case management system, which resulted in

the High Court of Botswana disposing of 21074 cases during the

period 1 February 2008 to 31 March 2010 (26 months).

2.8 CRMS – CASE RECORD MANAGEMENT SYSTEM

2.8.1 WHAT IS THE CRMS

 The Case Record Management System is a computerized

System which offers the following features:

 Scanning of all case pleadings, notices and documents;

 Report writing;

 Limited Information capturing by clerks;

 Diary;

 Automatic Judges’ allocation to new cases registered.

The Software was supplied by an American company and

adapted for specific needs by a South African IT Company.

2.8.2 BENEFITS OF CRMS

The system offers the possibility of saving space, in that

finalized case files, can be archived immediately after

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finalization. The system does not currently provide for e-

filing, but this is the next step in their development.

The system provides an accurate summary of each case,

including case status and all documents filed and/or

issued.

Accurate reports and statistics on specific cases and cash

flow in general are being generated, providing useful

information, such as amount of new cases registered, cases

finalized, judges’ work performance, etc.

Case information can be easily obtained, without the need

for an actual paper file.

Judges have immediate access to complete court file

2.9 REGISTRY

Implementing the CRMS & JCM, required the re-structuring of the

Registries

2.9.1 REGISTRY ESTABLISHMENT

The Registry establishment has 3 clear distinctions, namely

Registrar and Assistant Registrars

Judges’ Office

Registry Clerks

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2.9.1.1 Registrar & Assistant Registrars

The Registrar and Assistant Registrar mainly perform

the judicial, quasi-judicial and office administration

functions. There are two Assistant Registrars. The

one Assistant Registrar is head of Litigation and the

other is head of office administration.

2.9.1.2 Judges’ Office

Each Judge has his/her own chamber and court

room. Assigned to each judge are the following

clerks:

o Reporting Clerk

o Bench Clerk

o Court Room Clerk

The reporting clerk performs the function of

stenographer and typist. This clerk is tasked to

record the proceedings, and to keep a full

handwritten record of proceedings in court.

Typing of the proceeding record is the

responsibility of this clerk.

The Bench Clerk performs all interpreter’s,

registrar’s and clerical functions in court. Any

functions in general performed by a court orderly,

registrar, secretary and/or interpreter are

performed by the bench clerk, i.e. collecting of

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documents handed up in court, marking of

exhibits, interpreter’s functions etc.

The Court Room Clerk manages the Judge’s court

diary and act as liaison officer between the Mini

Registries and the judge. This clerk is inter alia

tasked with Collection of court file for judge’s

attention, ensuring correctness of court file,

checking of pleadings against rules, updating court

diary, compilation of day roll etc. This Clerk is the

link between the Registries and the Judges in that

he/she links court records at the registries to the

cases managed by the Judges.

2.9.1.2 Registry Clerks

In each Main Registry there are 5 or more clerks

assigned with specific duties to perform.

Clerk 1: Receive documents, open new cases on

CRMS and enter data of subsequent documents

received on CRMS;

Clerk 2: Scan all documents received;

Clerk 3: Scan all orders made in cases on CRMS

Clerk 4: Enter court order data, default judgments

and issued documents, i.e. Writs etc, on CRMS

Clerk 5 & 6: Quality Control and filing as well as

overall supervision.
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Clerks are to ensure that their tables are cleaned

of all work received on a specific day, before close

of business.

2.9.2 REGISTRIES & MINI REGISTRIES

Each Registry consists of the Main Registry and as many Mini

Registries as there are judges. A Mini Registry is merely a

cabinet containing all live court files belonging to that

Registry and assigned to a specific judge. Each Main Registry

has its own Mini Registries inside the particular Main Registry

Office. For ease of reference each judge received a colour and

all court case files assigned to a specific judge is marked with

a sticker of the corresponding colour.

The Main Registries are the following:

 Civil Applications;

 Civil Actions;

 Criminal Applications & Miscellaneous Applications;

 Criminal Trials;

 Appeals.

Due to the amount of work received and to be done in the

Civil Action Registry, this registry consists of 2 offices, with

scanning done in a separate office.

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2.10 RESULT OF INTRODUCTION OF THE CRMS, JCM & RE-
STRUCTURED REGISTRIES

Regular Stakeholder Conferences are being held for stakeholders

to raise concerns and problems, which are subsequently

addressed. This is a form of quality assurance, which ensures

improvement in the work and service quality;

Immediate disposal of dead cases. Initially each judge was

allocated 800 cases, roll calls were held on the cases assigned to

each judge and the result was that the majority of the cases were

dead cases, which have since registration been settled or

withdrawn without official notice to court;

Backlog as well as waiting time for finalization of cases has been

reduced drastically;

There is now Ownership of each case;

Work is being allocated equally to judges;

Since the systems has been introduced, more and more

settlements have been recorded;

There is an element of competition being detected amongst

judges, with the distribution of monthly statistics to judges on

complete and pending cases. Judges don’t want to be left behind;

Meaningful statistics can be produced without any effort.

The electronic statistics measure up with the physical cases in the

registries;

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Litigation costs has been reduced drastically, because of the

increased settlements and the reduction in court time;

Public confidence in the judicial system of Botswana has been

increased;

Staff has been empowered with increased responsibility.

2.11 CHALLENGES

Inadequate Resources, staff & hardware;

Lack of Legal knowledge and training with support staff (clerks);

Suffers from inadequate attorneys within the area. Same attorney

now find that they need to be in more than 1 court room at the

same time;

In the beginning there was an increased workload as existing old

cases had to be dealt with;

Inadequate office space for Mini Registries;

Change Management – Despite the success story, some people are

still resisting change;

Acting Judges appointed for short periods (less than 1 year) is not

an option for this system; Acting Judges appointed for at least one

year, whereafter appointees are made permanent judges if they

prove to be competent.

Practitioners are overstretched and put them under extreme

pressure;

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The system was introduced too fast, with too little time for proper

implementation;

No uniformity on working method of judges. Different styles of

application according to different personalities;

When Rules are changed, attempts should be made to stay in as

far as possible closely to old rules, specially with wording;

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3 MALAYSIA SUPERIOR COURTS

3.1 COURT STRUCTURE IN MALAYSIA

3.1.1 SUPERIOR COURTS

Federal Court: 11 Judges,

Appellate Division - Court of Highest Appeal

Court of Appeal: 23 Judges,

Court of Appeal from High Court;

Criminal – Right of Appeal;

Civil – Leave to Appeal

High Court: 95 Judges in 4 High Court Divisions

Criminal - Murder & Drug Trafficking

Civil – Claims exceeding MR250000

3.1.2 SUB-ORDINATE COURTS

Sessions Court: 108 Judges

Magistrates’ Courts: 175 Magistrates

3.2 COURT DIVISIONS

Commercial Courts

Civil Courts

Appellate & Special Provision

Criminal

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Family

3.2 ACTING JUDGES

Acting judges are appointed for a period of 2 years after which the

appointees are made permanent judges if they prove to be

competent.

3.3 JUDICIAL CASE MANAGEMENT

3.3.1 BACKGROUND

Judicial Case Management has been part of Malaysian r

procedure for many years. In terms of the previous

dispensation the Judges managed all cases from case

registration to trial. During 2009 case management by the

judges has been replaced by case management by a

dedicated Case Management Team, consisting of preferably

legally qualified, trained Registrars overseen by a Managing

Judge.

3.3.2 PROBLEMS EXPERIENCED THAT LEAD TO REFORM

 Missing Files

 Backlogs

 Unattended aging files

 Lack of Uniformity

 Insufficient court time for trial hearings

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 Too many adjournments

3.3.3 SOLUTIONS INTRODUCED

Introduced a Case Management System with limited E-Filing.

The E-Filing was only introduced in the Commercial Court,

where documents received are being scanned and forms part

of the computerized Case Record

3.3.3.1 SEPARATION OF FILES

Files for archive were separated from possible

running files;

Parties in running files were called upon to

indicate which files are still running and which

could be closed and archived;

3.3.3.2 CASE MANAGEMENT BY CASE MANAGEMENT


TEAM

Trained a Case Management Team consisting of

Registrar and Deputy Registrars, overseen by a

Managing Judge who attended to Pre-Trial Process,

including Pre-Trial Conferences;

Complex matters are assigned to a Judge for Pre-

Trial

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Parties are being called upon for progress in

matter and agreed time lines are set by means of

court orders

The ratio behind case management being done by

the CMT inter alia consist of the following:

 To achieve uniformity of approach as previous

experience showed that judges were not consistent

3.3.3.3 A & T DIVISION

Apart from existing divisions, a distinction is being

made between A (Affidavit) & T(Trial) Cases

Judges are divided between Affidavit Case Judges

and Trial Case Judges

3.3.3.4 NO ADJOURNMENT POLICY

Adjournments of properly set down cases are only

granted in exceptional cases

3.3.3.5 E-COURT PROJECT

The E-Court Project consists of 4 segments, namely:

Recording System

Case Management (Tracking) System

Queue Management System;

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 103 of 120
E-Filing System

3.3.3.6 RECORDING SYSTEM

A digital recording system was installed in all court

rooms, which includes both audio and video

recording. This reduced court time with at least

50%. Judges no longer need to keep handwritten

records during the trial / hearing proceedings.

The system leaves the option of flagging certain

main events during trial, i.e. cross-examination, re-

examination, Plaintiff’s Arguments etc. Flags are

listed on screen and upon clicking immediately

open the relevant part of the recording.

Records are only typed in case of appeal or where

specifically asked for. Soft copies of recording are

available to all parties, upon request. If

transcription is required, lawyers are to attend to

it.

The system includes:

o Auto-log (flagging of important events);

o Case Scheduler (segments for easy

transcription purpose);

o Case View

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 104 of 120
Apart from the cameras installed each court room

has 7 microphones with separation of voices

(sound) in 5 channels. (Mute 4 channels and listed

to one, for clear sound)

Data entry for purposes of flagging during trial can

be done prior to trial to avoid disruption of judge’s

attention during trial. This is a bookmark function

for important events in the recorded proceedings.

Recording can be logged into CD, DVD and/or Cam-

Drive

3.3.3.7 CASE MANAGEMENT SYSTEM

Case Management System has been computerized for:

Retrieval of info online;

Automatic Reporting;

Automatic Statistics;

Combined Diary;

Automatic upload of case on website(currently

only intranet) for retrieval of case Record

3.3.3.8 QUEUE MANAGEMENT SYSTEM

Help Desk kiosks were set up at strategic points at the

court. Once all parties are at court and ready to attend

the pre-trial proceeding, parties log onto queue

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 105 of 120
management system and queue number is allocated.

System will send SMS five minutes prior to required

attendance. This enables system to keep track of

matters attended to by each individual member of

CMT and affords lawyers opportunity to attend to

other issues while waiting.

3.3.3.9 E-FILING

A new Commercial Court was introduced in the

beginning of 2010, which includes all commercial

court matters filed from September 2009 onwards. E-

Filing was introduced in the New Commercial Court.

All documents are scanned or lawyers provide court

with soft copy which is copied into electronic file.

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 106 of 120
4 SINGAPORE

4.1 SINGAPORE LOWER COURTS AND SUPREME COURT

Alternative Dispute Resolution (ADR) is seen as First Line of


Defence: Based on the primordial instinct of finding local solutions
to problems

Justice in Singapore is service centered and the Courts have own


corporate video.

Original problem faced was case backlog of 5-6 years for


finalization of Cases. They soon realized that if the backlog
were to be reduced the judiciary had to get actively involved in
the management of litigation.

Court administrators recognized that efficient Courts had to be


part of an efficient government infrastructure.

That led them to think of the Judiciary as just another


organisation

2.2 DIVERSIONARY MEASURES: INTENDED TO STOP CASES COMING


TO COURT

ADR and traditional courts

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 107 of 120
2.3 FACILITATIVE/DISPOSITIVE MEASURES –

If nothing happens in a case it is deemed to have lapsed after the

effluxion of 1 year.

There should be strong leadership if measures are to be taken to


make courts efficient.

They conduct strategic planning for each year resulting in an


annual work plan.

 They have a planning unit ; and

 A training division

 There is continuous re-think of justice modules – the needs of the


parties in specific cases are different and require differentiated
solutions: i.e. family justice and juvenile justice are different to
criminal justice

 ADR operates as an adjunct to the Court system and the Courts are
seen as the last resort.

 There is also ‘Court- Dispute- Resolution’ -

 Voluntary submission – early neutral evaluation of cases -


mediation in criminal and family law

 Cross-border ‘Court- Dispute- Resolution’ - in cases with


international cross- border implications involving a foreign Judge

 Singapore operates differentiated case management procedures


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 108 of 120
 Night Courts, Special Courts, Traffic-, Coroner-, Commercial Trial-,

Community-, Neighbourhood- and Building Courts etc. Night

Court runs from 18h00 to 21h00 pm

 They seek to increase access to Courts

 By reducing barriers

 By setting up information centers at the Court to provide


advice, pamphlets, brochures, videos to the public

 By providing legal clinics – through Law Society at Court


premises

 By improving service levels by–


 Cutting and reducing on formalities and by maximizing IT
technology:

 Pay fines online - accessible from all over – all pre-court


process online-

 Computer video link to prisons - same for witnesses –


family service centers

 E- Courts: all papers filed electronically

 They have an IT department : IT companies are invited to


demonstrate new technology on a regular basis on how court
procedures can be improved

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 109 of 120
 They try building bridges through:

 Engaging local communities


 Networking with international judiciaries and bodies –
Australia/U.S.A to acquire best practices
 Through feedback from public perception surveys

 They also apply JCM in the form of a centralized pre-trial process


run by professionally qualified registrars as a first line of defence,
while a dedicated group of judges attend to interlocutories.

 They implement rotation /deployment of judges based on wishes


or need. Singapore judiciary operates a strict protocol against
adjournments once a case is listed for hearing.

 The various reforms led to elimination of backlog: At the


Subordinate Court, hearing dates are allocated within 4 weeks of
request in criminal cases and within 3 weeks in civil cases. In their
experience, speed of date allocation puts enormous pressure on
lawyers who normally need more time for preparation.

4.2 VISIT TO CRIMSON LOGIC: IT DEVELOPER AND PROVIDER TO


SINGAPORE COURTS

 They emphasized the benefits of IT for process efficiency and


cost saving

 It promotes transparency of Government service

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 110 of 120
 And promotes national competitiveness and improved
legal/judicial services which enhance business operating
environment which in enhances the country’s image
internationally and makes it more investor friendly.

 IT usage is an alternative to paper processes. Because of IT


application, case files are electronically created and use of paper
is nearly obsolete in the process.

 Crimson Logic is the developer of the computerized court


software, including e-filing by attorneys, of all Courts in
Singapore.

 They have recently developed a similar program for Mauritius,


which was successfully implemented.

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 111 of 120
PART G: APPENDICES

1 TRAVEL PROGRAM

Delegation:

- The Honourable Judge President, Mr. Justice Petrus T. Damaseb;

- The Honourable Mr. Justice Louis C. Muller, Judge of the High Court;

- Ms Elsie Schickerling, Chief Registrar High & Supreme Court;

- Adv Harald Geier, President of the Law Society of Namibia

Sunday 2 May 2010:

07h00 Depart from Hosea Kutako International Airport to Oliver Tambo

International

Accommodation Garden Court Hotel, corner of Park & Hill Street,

Arcadia – recommendable

Monday 3 May 2010: High Court of South Africa, North Gauteng

09h00 Briefing session with the Honourable Judge President, Mr. Justice

Ngoepe

09h30 Briefing session with the Honourable Deputy Judge President, Mr.

Justice van der Merwe

10h00 Attend Civil Roll Call

11h00 Tea with judges

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 112 of 120
12h00 Tour of the Palace of Justice

13h00 Lunch at Judges Boardroom with Honourable Judge President, Mr.

Justice Ngoepe and Honourable Deputy Judge President, Mr.

Justice van der Merwe

14h00 Discussions on Judicial divisions and term roll with Honourable

Judge President, Mr. Justice Ngoepe

16h00 Meeting adjourned

Tuesday 4 May 2010: High Court of South Africa North Gauteng

07h15 Discussions with the Honourable Deputy Judge President, Mr.

Justice van der Merwe

09h30 Meet Ms Mandy Jansen van Rensburg (Court Manager) and Mr.

Dave Pietersen (Chief Registrar)

10h30 Depart from High Court for Airport

19h45 Arrival Gaborone, received by His Excellency Hishongwa,

Accommodation Grand Palm Peermont Hotel

Wednesday 5 May 2010: High Court of Botswana, Lobatse

08h00 Depart for Lobatse

09h00 Arrival at High Court & Welcoming by Registrar

09h15 Courtesy Call on Chief Justice

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 113 of 120
09h35 Overview on CRMS (Case Report Management System) by the

Hon. Justice Lesetedi

10h00 Overview on JCM (Judicial Case Management) by the Hon. Justice

Makhwade

10h30 Presentation on CRMS (Case Report Management System) by

CIMS Team (Court Information Management System Team)

11h00 Presentation on JCM by Mr. Manzunzu (Assistant Registrar)

12h00 Questions & Comments

12h30 Lunch Hosted by the Hon. Chief Justice

14h00 Tour of Registries

15h30 Visit New Magistrates’ Court

16h00 Depart for Gaborone

Thursday 6 May 2010

10h00 Group discussion and summary on South African & Botswana visit

by delegation at Hotel

14h00 Courtesy visit to Permanent Secretary by Hon. Judge President,

Damaseb

Friday 7 May 2010

Travel Gaborone – Johannesburg – Kuala Lumpur

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 114 of 120
Saturday 8 May 2010

05h15 Arrival Kuala Lumpur, Received by High Commissioner, His

Excellency Kandanga and support Staff.

Accommodation Impiana KLCC Hotel & Spa

Sunday 9 May 2010

15h00 Delegation Discussions on Pro’s and Con’s of Countries visited to

date and discussions in Preparation to visit of Malaysian Courts

19h00 Dinner, High Commission Residency, Hosted by His Excellency

Kandanga

Monday 10 May 2010

9h30 Visit to Commercial Division

Briefing on Commercial Divisions

Briefing on Tracking System and Case Management System

Briefing Court Recording and Transcription

2h30 Visit Federal Court of Malaysia, including Judicial Museum and

Library

16h00 Courtesy Call to The Right Honourable Tun Dato’ Seri Zaki bin Tun

Azmi, Chief Justice of Malaysia

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 115 of 120
Tuesday 11 May 2010

9h30 Courtesy Call to Mr. Ragunath Kesavan, President of Malaysian

Bar

12H00 Delegation Discussions on observations in Malaysia

Wednesday 12 May 2010

9h00 Depart to KL international Airport for flight to Singapore

Thursday 13 May 2010

9h30 Sub-Ordinate Courts Singapore

14h00 Supreme Court Singapore

Friday 14 May 2010

10h00 CrimsonLogic – Software developers for Computerized Systems in

Singapore Courts

2 LIST OF PEOPLE INTERVIEWED

SOUTH AFRICA:

The Hon. Mr. Justice Bernard Ngoepe, Judge President of Gauteng High
Court

The Hon. Mr. Justice Willem Van Der Merwe, Deputy Judge President of
North Gauteng High Court

Ms Mandy Jansen van Rensburg (Court Manager)

Mr. Dave Pietersen (Chief Registrar)


REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 116 of 120
BOTSWANA:

The Hon. Chief Justice, Mr. Justice Maruping Dibotelo

The Hon. Mr. Justice Gabriel Rwalengera

The Hon. Mr. Justice Lesetedi

The Hon. Mr. Justice Makhwade

Mr. Manzunzu, Assistant Registrar

Mr. Godfrey Ntlhomiwa, Master and Registrar of High Court

J D Williams, Admitted Attorney

MALAYSIA:

The Right Hon. Chief Justice Tun Dato’ Seri Zaki Bin Tun Azmi

President of Malaysian Bar: Mr. Ragunath Kesavan

Sahul Hameed, Cam Vision Camera IT & Audio

CEO, Malaysian Bar – Mr. Rajen Devaraj

SINGAPORE:

Mr. Hoo Sheau Peng, Registrar – Subordinate Courts:

The Hon. Mr Justice May Mesenas District Judge

Saifulakmal Bin Said, Special officer to the Chief Registrar

Tan Wen Hsien, Assistant Registrar, Supreme Court, Singapore

Sim Kian Huat, Nigel, Deputy Director Corporate Communications,


Supreme Court, Singapore

Lim Tanguy, Direcor Law Society Singapore, Barrister of Law

Tan Sian Up, Vice President Crimson Logic

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 117 of 120
3 DOCUMENTS COLLECTED

SOUTH AFRICA:

See Natal Practice Directive No 31 – copy provided to delegation

Suzmann Article – copy provided to delegation

Johannesburg pre-trial procedure

Appraisal Performance evaluation: Senior Private Secretary for Judge

Term Roll Example North Gauteng

BOTSWANA:

Rules of the High Court, including Order 42;

User Guide on Significant changes made on old rules to new rules

Print out of complete civil case done on Judicial Case Management –

Default Judgment

Structure and Duty sheets of registry clerks

List of Computer Generated Custom Reports

Report on number of cases registered in High Court per year

Example of Case Summary Report

Example of Monthly Magisterial Return of Pending Cases, Mochudi

Court

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 118 of 120
SINGAPORE:

Annual Report, Singapore Subordinate Court (2008)

Annual Report, Singapore Supreme Court (2009)

Subordinate Courts Workplan 2010, Access to Quality Justice for All

Singapore’s Approach to Governance

Crimson Logic: Spark the Change

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 119 of 120
GENERAL BIBLIOGRAPHY

Reports and Court website

1 The Hong Kong Final Report on Civil justice Reform:


http://www.civiljustice.go.uk

2 Review of Civil Litigation Costs: Final Report -14 January 2010, Sir
Rupert Jackson-http://www.judiciary.gov.uk/about_judiciary/cost-
review/reports.ttm

3 Woolf Access to Justice: interim Report to the Lord Chancellor on the


Civil Justice System in England and Wales (1995)

4 Federal Court (Australia), Individual Docket System-


www.fedcourt.gov.au/how/ids.html

5 Supreme Court of Singapore, Annual Report 2009

6 Enhancing the Public Value of Justice, Subordinate Courts of Singapore,


Annual Report 2008

Books

1 Zuckerman on Civil Procedure: Principles of Practice


2nd edition, Sweet & Maxwell 2006. ISBN: 9780421919105

2 Adrian A. S. Zuckerman (ed), Justice in Crisis - Comparative


Perspectives of Civil Procedure OUP 1999, ISBN: 0-19-829833-1

3 A. A. S. Zuckerman (ed), Reform of Civil Procedure - Essays on 'Access


to Justice' OUP 1995, ISBN: 0-19-826093-8

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 120 of 120