PRESS RELEASE
08 August 2011

The Society of Advocates of Namibia ("the Society") has noted certain public criticisms of judgments and judges of the High Court of Namibia ("the Court"). This is an unfortunate trend, moreover where such criticism is neither accurate nor fair, and in circumstances where, as the Society has already stated in an earlier press-release, the judiciary cannot enter into public controversy and cannot reply to criticism levelled in this manner.

Two recent publications are of concern to the Society. The first publication relates to an interview published in the Namibian newspaper on 24 June 2011. Mr Hidipo Hamutenya was reported as stating of and concerning a judgement of the Court, and referring to the Judge President of the Court, that -

We look at the judgment of Damaseb and we conclude it was a political outcome and not a legal one. We are not surprised. The connection between Damaseb and SWAPO is well known. He may try to be impartial but how impartial can you be when your own party is being challenged?

The aforementioned statement is of a serious nature, crosses the bounds of reasonable criticism of a judgment and judge of the Court and is contemptuous.

The second publication of concern to the Society was made in the Namibian newspaper recently by a senior member of the legal fraternity, Mr Andreas Vaatz. Mr Vaatz is fully apprised of and able to initiate the appropriate mechanisms should he wish to legitimately challenge a Court judgment. A duty rests on all legal practitioners of the Court to assist in upholding the dignity of the Court. Mr Vaatz's aforementioned publication detracts from the dignity of the High Court and the legal profession at large, and is not to be encouraged.

ADV R HEATHCOTE, SC
PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA
8 August 2011

PRESS RELEASE
22 June 2011

In a recent media release issued by the Minister of Trade and Industry, Dr Hage Geingob ("the Minister"), criticism was levelled against an order handed down by the High Court of Namibia earlier this month concerning an application initiated by Wal-Mart Stores Incorporated, and to which application the Minister was joined as a respondent.

The Minister, inter alia, expressed disappointment with the order, and stated (and quoting verbatim from the media release provided to the Society of Advocates of Namibia ["the Society"]) that -

• "I am disappointed at the judgment, which has once again restated the non-importance in the eyes of the court, of the broader issues around SMEs, employment creation, local participation and the right of the Minister of Trade and Industry to safeguard local companies from undue completion (sic) in the retail industry as per the Government Gazette Notice 75"; and

• "The judgement which may be construed as a blanket sanction by the High Court to Wal-Mart Stores Incorporated to commence with operations by taking over all companies under Massmart Holdings ... without awaiting the appeal which we have lodged, may appear as a retention of the apartheid legacy"; and

• "However, I am a strong believer in our justice system and fair play, for which we fought and sacrificed our lives, so that the psychosis of apartheid cannot haunt us in this country after 21 years".

The Minister's criticism of the High Court order received wide media coverage (also on the international plane), and was levelled before the High Court handed down reasons for its order.

The Minister's criticism was not only unfortunately worded, but given the fact that it contained sweeping statements before the reasons for the High Court's order became available, also premature and irresponsible. His comments could be construed by the ordinary person on the street as implying that the High Court was somehow promoting the "retention of the apartheid legacy" and contributing to the "psychosis of apartheid". The seriousness of this matter is underscored by the fact that it is the paramount function of the High Court to uphold the Namibian Constitution, which very Constitution condemns the practise and ideology of apartheid in the strongest of terms.

The right to fairly and reasonably criticise a judgment avails any person - but such criticism should be accurate and fair, especially bearing in mind that the judiciary cannot enter into public controversy and cannot reply to criticism. Moreover, when a high-profile politician criticizes a High Court order he or she should appreciate that, if the words used are not carefully chosen, they may be taken out of context and published internationally, tarnishing Namibia's good name and reputation.

The High Court has served, and will continue to serve, a pivotal role in upholding the fundamental rights and freedoms enshrined in Chapter 3 of the Namibian Constitution and in impartially and independently administering justice. The Namibian Constitution expressly prohibits a member of the Cabinet from interfering with judges in the exercise of their judicial functions and all organs of the State are required to accord such assistance to the Courts as may be required to protect their independence, dignity and effectiveness, subject to the terms of the Namibian Constitution or any other law.

The Minister's criticism, in the respects highlighted above (and without commenting on the balance of the media release), was neither accurate nor fair, infringed the dignity of the High Court and is decried by the Society.

DATED at WINDHOEK this 22nd day of JUNE, 2011.
Adv R Tötemeyer, SC
VICE-PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA

PRESS RELEASE
1 June 2011

The Society of Advocates of Namibia notes, with grave concern, recent developments regarding the Southern African Development Tribunal (“the Tribunal”).

The establishment of the Tribunal was (and remains) a major event in the history of the Southern African Development Community (“SADC”) and heralded the establishment of the competent and independent tribunal, tasked with the administration of justice in respect of those matters falling within its jurisdiction, and, in so doing, also developed SADC law and jurisprudence.

The Tribunal fearlessly and impartially administered justice to parties who came before it, and in circumstances where certain of the litigants were left with no real alternative but to approach the Tribunal for relief.

Tampering with the Tribunal and its operations constitutes an attack on the judiciary and its independence. Judicial independence should be jealously guarded.

Recent developments at the SADC Heads of State summit, and relating to the interference of the operations of the Tribunal will serve to (until abated) deny persons the right to approach the Tribunal for relief – constituting a violation of the fundamental right to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law.

The Namibian Government is called upon to resist attempts to undermine the Tribunal, and to take all steps necessary to ensure that the Tribunal is rendered operational and efficacious.

ADV R TÖTEMEYER
VICE-PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA

Resolution

Bar Conference: Belfast 30th June 2008

• To deplore the defiance by the Government of Zimbabwe of its human rights obligations under domestic and international law;
• To call upon the secretariats of the Southern African Development Community, the African Union and the United Nations to initiate all steps necessary to procure the return of the rule of law to Zimbabwe and respect by the Government of Zimbabwe for the rule of law;
• To condemn the detention without trial of our colleague Eric Matinenga, Member of Parliament of Zimbabwe and leader of the Harare Bar and the defiance of the High Court order for his release granted on an urgent basis by the High Court on 14th June 2008;
• To call upon the members and secretariat of the Southern African Development Community to ensure that independent legal observers are permitted to be present in all courts in Zimbabwe throughout the trials of members of the legal profession who are being prosecuted for alleged offences;
• To demand that the lawyers of Zimbabwe be permitted without intimidation or penalty to perform their duty to represent and defend their clients and ensure the entitlement of their clients to basic human rights;
• To demand that the magistrates of Zimbabwe be permitted without intimidation to independently perform their duty's in accordance with the rule of law and to ensure the entitlement to basic human rights;
• To demand that the Attorney General of Zimbabwe independently and impartially exercise his powers to uphold the rule of law.