By Roland Routh
WINDHOEK – The recently introduced new rules of the High Court while designed to shorten civil trials and in the process save costs, could very well do just the opposite.
This was the view of several legal professionals New Era spoke to.
They were all of the opinion that any litigant must now have ready cash to lodge a civil claim in the High Court since the inception of the new rules.
The new rules make it mandatory for legal representatives to be present at all stages of the trial, from its inception.
This includes case planning and case management conferences and status and informal hearings arranged by the managing judge.
The new rules also make provision that a judge be involved in all stages of the dispute. While the rules make provision for alternative dispute resolution – a step welcomed by all lawyers interviewed – it is only meant for some disputes. These include insurance claims, medical negligence claims, professional negligence claims against lawyers which will have a judge as mediator, building contract cases, disputes involving custody of and maintenance of children, spousal support, loan default and motor vehicle accident cases.
The Judge President recently accredited the first batch of court appointed mediators for this purpose. While in the past the control and management of civil cases mainly rested with the various lawyers or litigants, it now vests totally with the presiding judge.
The new rules give the managing judge the power to sanction a litigant or legal representative that does not adhere to any of the orders or deadlines set by the court.
These could include barring a litigant or legal representative from opposing or supporting any claims or defences, striking out a plea and dismissing a claim entirely.
The judge may also direct the non-compliant party or his/her legal practitioner to pay the opposing party’s costs caused by the non-compliance.
The new rules were introduced to give effect to the provisions of Article 12(1) of the Namibian Constitution that guarantees a fair and prompt trial.
The overriding objective of these rules is to facilitate the resolution of the real issues in a dispute justly and speedily, efficiently and cost effectively, it is stated in the rules.
This comprises, inter alia, ensuring that the parties are on an equal footing and save costs by, among others, limiting interlocutory proceedings to what is strictly necessary in order to achieve a fair and timely disposal of a matter.
The new rules also seek dealing with a cause or matter in ways that are proportionate to the value of the claim, the importance of the cause, complexity of the issues and financial position of the parties towards ensuring that cases are dealt with expeditiously and fairly.
It is also stated that the new rules recognise that judicial time and resources are limited and therefore directs the allotment to each cause an appropriate sh Johannes Geinamseb, 37are of the court’s time and resources, while at the same time taking into account the need to allot resources to other causes as well considering the public interest in limiting issues in dispute and in the early settlement of disputes by agreement between the parties in dispute. These are the extent to which parties have complied with any pre-trial requirements or any of the mandatory or voluntary pre-trial processes, the extent to which parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute.
The new rules of court and the practice directives issued by the Judge President provide for a court-driven process for the conduct of proceedings in the High Court, but where there is a conflict between a rule of court and a practice directive, the rule of court always takes precedence and litigants and legal practitioners must comply with all practice directives for fear of sanctions.
The new rules also make provision for the practice of cession. It says that if a person acquires a right of action through a cession, that person may not act on his or her own behalf in any cause or matter in the court under that cession, unless when he or she for the first time lodges any process in the cause or matter with the registrar, he or she at the same time files with the registrar a sworn declaration by the person who ceded the right of action to him.
This simply means that any person that transfers any claim to a third person must declare that he or she has no more interest in the cause.
To achieve this the cedent must declare under oath that the cession is a genuine transaction and that he or she did not cede the claim to enable the cessionary to act on his or her behalf in legal proceedings in return for payment and that the cessionary has not held himself or herself out as a person qualified to represent a member of the public in legal proceedings contrary to the law.