Roland Routh

In a landmark judgment delivered yesterday, the Supreme Court of Namibia endorsed the right of the media to publish information that is in the public domain.

This comes after a High Court judge placed the entire proceedings of a damages claim by inmates against the minister of safety and security, prisons chief and the officer in charge of the Windhoek Correctional Facility, in-camera. Ben Willy Kazekondjo, Ashley van Wyk and Donovan van Wyk sued the three respondents for damages for assaults perpetrated against them by correctional officers.

On the day the trial was set to begin, Judge Herman Oosthuizen, who was presiding over the matter, was informed that the parties reached a settlement agreement that each of the complainants will receive damages in the amount of N$100 000 and requested that it be made an order of the court.

They further asked the judge to keep the terms of the agreement confidential and in-camera. The judge then placed the entire proceedings in-camera which made it inaccessible to the public.

Upon enquiry from a journalist, Judge President Petrus Damaseb sought reasons from Oosthuizen as to why he placed the entire proceedings in-camera. The judge responded the e-justice system does not make provision for only the terms to be made inaccessible. He also replied the interest of the journalist or the public is “outweighed and overshadowed” by the direct interest of the litigants to justice and confidentiality and in particular the interest of ‘impecunious’ plaintiffs to obtain an effective ‘pecuniary’ award.

Damaseb then approached Chief Justice Peter Shivute to invoke the Supreme Court’s review jurisdiction in terms of section 16 of the Supreme Act to determine whether the decision of Oosthuizen amounted to an irregularity or not.

The Supreme Court also invited the office of the attorney general to give its input. Judge of Appeal Dave Smuts, who wrote the judgment in concurrence with Justice Shivute and Acting Judge of Appeal Theo Frank, reasoned a court should not be mechanical in its adoption of a settlement agreement.

He further said that the practice of making agreements orders of court when parties settle has a long and well-established tradition in local courts. “Article 12(1)(a) of the Constitution, enshrining the right to a fair trial provides that all people shall be entitled to a fair and public hearing provided that such court may exclude the press or public for moral reasons, the public order or national security,” the appeal judge said.

“The open court policy has long been recognised as an inherent component of the rule of law which is a fundamental principle of our constitution.”

According to Judge Smuts, public access to courts, now guaranteed by the constitution, is thus not only an essential component of the right to a fair trial but ensures that the public have access to court proceedings to ensure that justice is not only done but seen to be done.

“The openness of the courts is central to their legitimacy and their independence and thus to the constitution,” he stressed. He further said that the exceptions to this principle as set out in article 12 are confined to reasons of morals, the public order, or national security as necessary in a democratic society.

However, the proceedings in this matter do not remotely relate to the exception. In this matter, the judge stated, the proceedings involved a damages claim against the correctional service, which raised abuse of inmates in a correctional facility, which is of national interest.

The judge stressed the principle of accountability, which is a foundational principle of the constitution, would emphatically preclude any basis for proceedings and court orders of this nature being made secret by a court at the request of parties.

“Part and parcel of the principle of open court proceedings entrenched in article 12 is the right of the public to know and have access to court proceedings and the concomitant right of the media to have access to the information in question.

He further said that the decision by the judge to place the proceedings in-camera was in direct conflict with the constitution and the rules of the High Court and amounts to an irregularity by the judge and it is plainly in the public interest for the order to be reviewed and set aside.

- rrouth@nepc.com.na