If, like many other businesspeople, you complain about the glacial pace of SA’s legal system, maybe you should count your blessings instead. A decision by the supreme court in Namibia on a water-rights dispute has just been delivered — more than 10 years after the matter was fully argued.
The prolonged legal wrangle over access to a shared water point began in 1999, when farmer David Bock won a high court order in terms of which his neighbour, Willem Bock, was to do certain things — allow David to have "peaceful and undisturbed" access to the water point, for example — and not do other things, such as leave gates open so cattle could wander onto David’s veld.
The order was served on Willem, but when he ignored it David went back to court and another order was issued: a four-month jail term would follow if Willem continued to disobey the court.
Despite this warning, however, Willem cut and removed fences so that even more cattle escaped to David’s land and he also destroyed the pipes taking water to David’s household.
Not surprisingly, David was soon back in court, and in May 2003 the court finally ordered that Willem go to jail for contempt of court. This spurred Willem into action. He launched an appeal against the prison term and in 2006 the court heard his challenge.
No-one could call this a difficult appeal, however, so why did it take 10 years for judgment?
It turns out the case is part of a continuing scandal in Namibia. For the past decade, chief justice Peter Shivute and a senior judge, Gerhard Maritz, have been sitting with an undisclosed number of backed-up judgments. Because of their seniority, it has been difficult for anyone to comment, criticise or take action against either of them.
Recently, however, Shivute at last brought his decisions up to date, while Maritz took early retirement with the understanding that he would complete his outstanding judgments.
That hasn’t happened. Over the past few months several long-overdue decisions have been delivered in cases where he should have written the judgment, but instead they have been written by one of the other judges who sat with him on the cases. All the decisions have incorporated an apology for the delay.
In this most recent matter, for example, deputy chief justice Petrus Damaseb, in delivering judgment, said Maritz was assigned the task of writing the decision after the matter was heard in October 2006. However, he had not presented a draft for consideration by the rest of the bench. "The health of our brother has been on the decline," Damaseb wrote, "and the situation now is that he has conveyed through the chief justice the message that he has been medically advised against undertaking strenuous mental concentration on matters such as the current one."
A series of fumbles
Damaseb thus wrote a majority decision, with the agreement of Shivute, the third judge who heard the matter, but without Maritz’s input.
This all raises the question: what should happen to Willem Bock, now that the court has upheld the original four-month jail term for contempt?
"The delay ... is a failure of justice," wrote Damaseb, and the court did not even know if Willem was still alive. He therefore said that the order jailing Willem should be stayed. However, if it turned out that Willem had continued with his unlawful behaviour, David could approach the high court for a new order of imprisonment.
You can just imagine David’s reaction. Perhaps people doing business in SA can console themselves with this thought: even though there are serious delays in getting cases heard, once matters have been argued a decision is almost always delivered within a few months.