WHO would have thought that Namibians led such a hectic life? All this time I had imagined they enjoyed a laid-back approach you might associate with the rural parts of South Africa. Wrong, obviously. The pace of life there must be way more demanding than in, say, Johannesburg. How else to explain the sometimes astounding delay in delivering decisions seen repeatedly by Namibia’s superior courts?
The most recent example was handed down by Ms Justice Kato van Niekerk – wait for it – nine years and ten days after she heard the matter. Ironically this case deals with the issue of meeting deadlines and the consequences of not complying with time limits. And as I read her comments about how flexibly or otherwise we ought to approach the question of deadlines I squirmed.
But let’s start at the beginning. The person waiting all those years for judgment was George Simataa who had brought an action against the Public Service Commission and the deputy secretary of the Namibian cabinet.
Simataa was employed in the public service as an under-secretary in the office of the Prime Minister. During February 2002, Simataa got into trouble with his bosses and they prepared a charge sheet against him with allegations relating to tenders and ‘causing embarrassment and adverse publicity to the Office of the Prime Minister and/or the Tender Board’. He was also in trouble over his alleged failure to disclose the fact that he’d been moonlighting as well as being involved in ‘certain profit-making ventures’.
Having received notice of the charges Simataa formally denied them. He then received an official letter saying that in terms of the Public Service Act a disciplinary committee had been formed to conduct an inquiry into the charges against him and that the inquiry would be held ‘within 21 days’.
However, the authorities missed, by a day, the deadline to appoint the disciplinary committee; nor did the hearing take place within the stipulated period. There followed protracted efforts to find an alternative date for a hearing. And, once the parties gathered, the chairperson of the disciplinary inquiry said there was no point in continuing with the hearing because the inquiry hadn’t been established ‘within the limits’ of the law. So, she concluded, Simataa would have to be ‘re-charged’.
Simataa was therefore duly informed that the charges had been withdrawn and the next day he was charged a second time. Again he denied the allegation. Again a disciplinary inquiry was convened. Simataa objected to the legality of the gathering and after debate by members of the inquiry it was decided to adjourn the hearing and inform the deputy secretary of the cabinet that the matter could not continue. The deputy secretary signed the inquiry’s memorandum and sent the documents off to the secretariat of the Public Service Commission. They however were unhappy with the outcome, saying there had been a ‘serious dereliction of duty by the disciplinary inquiry’ and that a ‘serious miscarriage of administrative justice’ had resulted.
Withdraw the charges yet again, said the commission, and charge Simataa yet again. Which is what happened. But when the date was set for the third inquiry to begin, Simataa objected and took the matter to court. That application – to set aside the decision by the Public Service Commission to bring fresh misconduct charges against Simataa – was argued on 20 October 2004.
On 30 October 2013 Judge van Niekerk delivered her somewhat delayed decision. She found for Simataa and set aside the 2004 decision to charge him. On the way she made a couple of cringe-worthy comments such as this: ‘I would personally prefer to follow a more flexible approach to the time limits imposed’ than was taken in a case referred to during argument.
And later, explaining how important it is to deal promptly with misconduct inquiries, she said it was in the public interest to do so. It would also help ‘instil discipline, root out malpractices and set examples’.
In her view the inquiry’s non-compliance with the time limits set for establishing a disciplinary hearing meant that the ‘overall purpose of prompt and expeditious conducting of disciplinary enquiries … was not met.’
Judge van Niekerk is lucky. In South Africa a judgment delayed for so long could well result in impeachment. And, ironically, the disciplinary hearing into the matter might well decide to recommend impeachment for precisely the reasons she spelled out in Simataa’s case, namely that it would ‘instil discipline, root out malpractices and set examples.’