Judiciary feels Kora heat

Lawyer Eben de Klerk has requested the Law Society of Namibia to take a public stance and ensure that investigations are carried out by the appropriate bodies in order to get to the bottom of why the Kora matter was marked “in camera”.

15 October 2019 | Justice

Pressure is mounting on the judiciary after a bizarre attempt to mark documents linked to the N$23 million Kora scandal as “in camera”.

Among the documents which were restored to the e-justice portal last week after legal threats was an explosive affidavit by Kora All-Africa Awards founder Ernest Adjovi, which placed President Hage Geingob at the centre of the signing of the agreements to bring the awards show to Namibia. Adjovi also lifted the veil on his friendship with the president, which he said had resulted in the agreements being signed.

Geingob late last week rejected the claims made in court papers that he had influenced the decision by the Namibia Tourism Board (NTB) to pay N$23.4 million to Adjovi's company.

However, the dust is refusing to settle on the judiciary's role in removing the court documents from public scrutiny, with calls for investigations into why the matter was blocked in the first place.

The matter between the Namibia Tourism Board and Mundial Telecom Sarl is being heard in the High Court.

Lawyer Norman Tjombe told Namibian Sun that since there was not even a formal application for the matter to be heard in camera, the move should be investigated.

He said in terms of Article 12 of the Namibian Constitution, the press/public can be excluded from a trial for reasons of morals, public order or national security.

“For instance, when children are testifying the public and media are normally excluded from the courtroom or at times the court will give direction that the child's identity must not be disclosed while the court remains in session.”

Tjombe pointed out that the Kora case is far from any of these.

“So far as we know, it is an ordinary case of a contractual dispute of non-performance. That can never pass as a candidate for a secret trial, no matter how embarrassing some details may emerge from documents and or testimonies of witnesses.”

Tjombe said an investigation was necessary to avoid a repeat.

“Without an investigation as to what really happened it will be speculative as to what actions should be taken.”

The Office of the Judiciary said in a media statement last week that no court proceeding can take place in camera unless it meets the criteria stated in Article 12 of the constitution.

“Parties engaged in litigation are, however, entitled, when engaged in settlement discussions, to keep aspects of those discussions secret, including details of any settlement reached.

“The parties in this matter had expressed such wish to the presiding judge whilst engaged in settlement discussions,” said the statement.

Lawyer Eben de Klerk of ISG Namibia referred to Section 13 of the High Court Act, which states: “Save as is otherwise provided in Article 12 (1) (a) and 1 (b) of the Namibian Constitution, all proceedings in the High Court shall be carried on in open court.”

He said for a court to decide whether Section 12 of the High Court Act can be ignored, a court must be convinced that at least one of the grounds for jurisdiction as contained in Article 12 of the Namibian Constitution is present and the secrecy is justifiable.

He said that would require a formal application to the court as well as a formal ruling on such application. According to him, a court would have to give reasons for not complying with the clear duty contained in Section 13 of the High Court Act.

“From the pleadings now available, it appears there was no formal application to have this matter heard in camera, and therefore to refuse public access to the court file, and for the court to override Section 13 of the High Court Act,” said De Klerk.

“Settlement negotiations are always confidential and do not affect the pleadings. It is therefore absurd to say that the pleadings needed to be removed from the public domain for settlement negotiation.”

De Klerk said the judiciary therefore admits that it breached, or at least knowingly allowed a breach of, Section 13 without any justification as there was no order on in-camera proceedings.

De Klerk said he had requested the Law Society of Namibia to take a public stance on this matter and to ensure that investigations are conducted by the appropriate bodies.

He said if no such investigations were done, the Law Society must investigate the matter itself.

“The scope of the investigation needs to include multiple actions and parties as not only was the judiciary statement incorrect and at best aimed to mislead the public, this statement was made on which our president and current justice minister find themselves in the centre of a very controversial civil claim, with potential criminal consequences.”

De Klerk therefore said the investigation needs to access fully who in the judiciary was involved in breaching Section 13 of the High Court Act and also who gave the judiciary instructions to breach this section and then mislead the public.

“It is unfathomable that the judiciary would have done so out of its own volition and if it did, the prejudice to the rule of law is even more severe.”

De Klerk pointed out that the withholding of the pleadings was effected by the registrar of the High Court, seemingly without a court order to that effect.

“This is because the registrar's office is the custodian of the e-justice system which is the system used to file and disclose pleadings. Without a court order to that effect, why were the pleadings purposefully removed by the registrar? Who gave the registrar instructions to remove such pleadings?”

De Klerk also wanted to know if there somehow was a court order, which for some reason was not made public, why it was not made public, and how such order could be given without a formal application.

“For now it appears that one or more of the parties involved in the administration of justice, and very possibly the judiciary itself, may have been complicit in committing the crime of corruption.”

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