- December 26, 2022
- |Law Everyday
On 16 April 2014, a new set of Rules for the High Court of Namibia made under section 39 of the High Court Act, 16 of 1990 came into force, to regulate the conduct of the proceedings in that court. The Rules also introduced new features, most notably the e-justice system. E-justice is a web-based platform which offers law firms and court users a single access point for commencement and active management of case files throughout the litigation process. Users can input information directly into e-forms, which is then used to auto populate court documents. It also provides functionalities and related services that streamline the litigation process, thereby helping to improve efficiency and enhance access to justice. To understand how that system works, let’s look at some definitions in the Rules.
Rule 1 defines e-justice as the internet-based system for delivering process and maintaining court case files in the court. File means to file with the registrar and process includes any official court document and pleadings. Registered user means an individual in his or her capacity as sheriff or a legal practitioner or a firm of legal practitioners to whom or which has been issued a login and password by the registrar for e-justice to electronically generate, deliver and file process and maintain court case files in the court. The same system also allows individuals who wish to lodge cases in the High Court to do so on their own. This is what has become to be known as ‘self-actors” or “in person” litigants.
In terms of Rule 135(2), every party who wants to lodge a civil or labour matter in the court must file the original commencing documents electronically with the registrar through the e-justice system. In terms of rule 135(3) the filling of any court process, notice or document must be done by a registered user (lawyer) or through the service bureau (by an individual). In practical terms, the system works like this. A legal practitioner (lawyer) registers themselves on the e-justice system and upon approval, they are issued a login and password (Rule 135(4)), which allows them to generate, deliver, file, and maintain court documents electronically on the system for their clients. Individuals who would like to lodge such matters can do so through the “service bureau” which
is the administrative unit established by the registrar to assist individuals who are not registered users to carry out litigation with the e-justice system at their own cost.
In terms of rule 135(5) the service bureau serving any division of the court must be situated at that division. There are two divisions of the court situated at Oshakati and Windhoek and so should be the service bureaus. Rule 131 (11) further allows a party to a matter and a person having interest in the matter to, with permission of the registrar and upon payment of an amount, examine such court process, notice or document filed at the service bureau, and against payment of a fee, make copies thereof.
Having established that individuals can lodge matters at the High Court on their own, it is important to know that such individuals must still comply with the requirements of the Rules and failure to do so has dire consequences. For example, rule 131 requires that all typed court documents must be in Arial font 12 points with 1.5 line spacing, and further comply with the provisions of sub rule (1)(a) – (d), and sub rules (2) – (10)). Failure to comply with the requirements of rule 135 may result in the registrar rejecting the document or the matter not being heard, and an appropriate order of costs being made against the individual filing such documents.
Therefore, proper attention must be given by individuals who wish to file and litigate on their own, particularly because in litigation, a party stands and fall on their papers. This principle was applied in Ntemwa v NCRST (HC-MD-CIV-MOT-GEN-2022-00290) [2022] NAHCMD 363 (8 July 2022) where the applicant filed the case on her own via the service bureau. Due to the [bad] state of the papers, the managing judge had to consider whether the papers met the requirements of the Rules before the other party filed an answer and found that the papers did not meet the requirements of the rules and struck the application from the roll with costs (for lack of urgency not property set out and prayed for in the papers).
However, this should not detract from the overriding objective of the Rules as stipulated in Rule 1(3): to facilitate the resolution of the real issues in dispute justly and speedily, efficiently and cost effectively as far as practicable by, among other things, save costs and deal with matters expeditiously and fairly.
Having said that, I must recognize the possibility or temptation of individuals consulting anyone with a legal background to draft court documents for them and sound a warning to them. In Andrews v Standard Bank Namibia Limited (SA 90-2020) [2021] NASC (15 October 2021) where court documents were prepared by a self-styled paralegal, the Supreme Court cautioned the public against acting upon the [wrong] advice given by unqualified persons professing knowledge about the law and dismissed the application with costs.
Download Law Everyday – Volume 5 – 26 December 2022
Fedden Mainga Mukwata – Legal Pundit