Windhoek
In a judgment he delivered in the Oshakati High Court recently Judge President Petrus Damaseb described as unacceptable that prison officials failed to produce appellants in custody for appeal hearings.
According to the Judge President a “great number” of appeals are pending at the Northern Division. Based on data provided by the court’s administration there are currently in excess of 80 appeals, that remain pending for one or other reason. Some of the appellants have been released while awaiting their appeals, “a sad commentary on our justice system”, the judge remarked.
The delay in the finalisation of the appeals can be attributed to either the failure by presiding officers in the magistrates’ courts to reconstruct records – even after court orders were made by the High Court – or the failure by the Directorate of Legal Aid to process applications for legal aid.
Other factors include the failure by prison authorities to bring convicted persons before court to prosecute their appeals, or failure by legal officers appointed by legal aid to appear at court to assist the prisoners.
Judge President Damaseb, in line with his duty to ensure the expeditious dispatch of the business of the High Court, directed the Registrar of the High Court to set down all pending appeals in the Oshakati High Court to allow the prisoners their proverbial day in court.
The first batch of 46 appeals was set down for case management on August 24 and 25, but prison authorities failed to bring the prisoners to court. The Registrar was then directed to serve notices on the Director of Legal Aid, the Ombudsman, the Chief of the Lower Courts, the Director of Court Services and the officers in charge of the 13 prisons countrywide to ensure no effort is spared in bringing the prisoners before court.
Damaseb said he had requested the heads of all prisons to assist in providing him with information as to the whereabouts of the 85 inmates in question, and if they were released, to indicate the month and year of their release.
However, to his astonishment, the “errant officials” at the prisons have explanations that the court finds unacceptable and not in keeping with the ethos of the Constitution.
For example, prison authorities gave non-service to the Deputy Sheriff, by merely saying that the said appellants are not held at their institution and might be in another prison, but could not say which one. “As I pointed out to the counsel for the State during the hearings, these responses are unacceptable. How can all 13 prisons be unable to account for the whereabouts of a prisoner received into the custody of Correctional Services?” the Judge President wanted to know.
According to Damaseb, any person who is sentenced to a term of imprisonment is lawfully detained and has no right to freedom, unless such term of imprisonment is set aside by a competent court. However, he said the right to challenge any conviction and or sentence is inviolable and no official or person, “however powerful”, has the power to frustrate that right.
The Judge President then made an order to compel the minister responsible and the Commissioner-General of Prisons to produce the following prisoners before court at 10h00 on October 9: Wendelinus Lomboleni, Timotheus Kristian Lungisha, Shuudifonya Showanya Nghikongwa, Shaetonghoko Josua, Ruvao Paulus Mupia, Peter Shilongo, Michael Shilongo, Linus Johannes Tjapa, Absalom Josef, Johannes Nghishekwa Justus, Komorana Kavari and Herman Kamujane.
He further enjoined the Ombudsman and the Attorney General in the order.