Promoting Access To Justice in The High Court of Namibia: First Report - The Case For Judicial Case Management

0.
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.’’
REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 2 of 120

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.

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

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

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)’’

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

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

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.
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

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.
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.
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

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

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.

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:

(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;

(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

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.

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.

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

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

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

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

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
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

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

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]
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].
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.

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
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.

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.
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
awaiting trial- a circumstance that is particularly unfair if the person
is acquitted at the end of the day.

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;

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

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)

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

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.
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:

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.

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;

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.

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
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

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.

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.
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.
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

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.
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

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.
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

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
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.

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

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.

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 :

(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

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

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

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

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].

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.
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.

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

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). ‘’

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

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.
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:

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.

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

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.
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

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,

practice directions and a menu of standard case management
directions.

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.

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

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

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.

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

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 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 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.

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

 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

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

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

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;

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.

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;

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)

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

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

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

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.
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.

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;

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;

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;

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
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
 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
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;
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
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
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.
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
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

 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
 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
 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.
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
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.
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.
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
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
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
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)

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
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
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
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

Promoting Access To Justice in The High Court of Namibia: First Report - The Case For Judicial Case Management

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Promoting Access To Justice in The High Court of Namibia: First Report - The Case For Judicial Case Management

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REPORT IN RESPECT OF THE JUDGE PRESIDENT’S

THE HON. MR JUSTICE PETRUS T. DAMASEB

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

and one that dispenses justice reasonably speedily.’’

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

Available on line: www.superiorcourts.org.na

Inquiries can be made to:

Chief Registrar: High and Supreme Courts of Namibia

Tel: +0264 61 292 1351

Fax: +0264 61 221686

Private Bag 13179, Windhoek, Namibia

First published 2010

the financial support of the Ministry of Justice.

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

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

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

the public interest.

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

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

judicial case management in E & W.

DJP Deputy Judge President of the North Gauteng High Court

E&W England and Wales

for 5 days or more

FCMC Further Case Management Conference

ICMC Initial Case Management Conference

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

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 5 of 120

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

Chancellor on the civil justice system in England and

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 6 of 120

REPORT: FAMILIARIZATION TOUR OF JUDGE PRESIDENT 2 – 16 MAY 2010 Page 7 of 120

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

1. PURPOSE OF FAMILIARISATION VISIT

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

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

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

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