Thursday, September 24, 2020

All must contribute to the preservation of rule of law

Execution, the process of giving effect to orders of court, is a process of court. By court the expression does not intend to suggest that the High Court and the Court of Appeal are divisions of the same court. The expression does not create concurrent jurisdictions for the High Court and the Court of Appeal in regard to execution of orders of court. The error in the recent case was in not properly understanding what the issue was about. An application for stay is an execution process.

It is not a stand alone action or claim separate in its existence from execution of orders of court. To put matters into perspective, would the Court of Appeal have had jurisdiction to hear the Union’s application for government to be held to be in contempt? The Court of Appeal would have maintained that it does not have jurisdiction to deal with execution of orders given by the High Court. Why then should it have jurisdiction to hear an application for stay of the same order that it has not given in the absence of a substantive appeal before it? In our law all judgments are presumed correct until set aside on appeal. This is a sound rule, for otherwise people will have the right to choose when to give effect to orders of court or not. This would undermine the relevance and integrity of the rule of law. A Court of Appeal cannot therefore assume jurisdiction over execution of an order given by the High Court in the absence of a substantive appeal before it. The Court of Appeal was therefore misdirected to hold that it had jurisdiction to hear an application for stay of execution of an order of the High Court. It seems to me also that the Court of Appeal and the lawyers failed to appreciate that jurisdiction had to do with the claim, not the consequences of giving effect to the order. The government’s claim was for an order staying execution of an order given by the High Court. The basis for the claim is irrelevant. The fact that giving effect to the order may occasion chaos is with respect not sufficient for purposes of determining whether the Court of Appeal has jurisdiction. The Court of Appeal is not a court of first instance. The fact that government could claim a statutory right not to give effect to the order for three months is also irrelevant. If the government had sought to get a declaration that it had such a right, the proper forum is the High Court, not the Court of Appeal. The Court of Appeal therefore could not rely on the claimed right to usurp jurisdiction. The idea that because someone has threatened to take another to court for contempt creates jurisdiction is also flawed. Ordinary people not trained in the law always receive letters from lawyers threatening them with court action. They do rush to the Court of Appeal. The Court of Appeal will reject such moves.

Every lawyer knows that threats of litigation are not grounds for giving a court jurisdiction. No lawyer shivers in his boots just because someone has threatened to take their client to court for contempt. We must also bear in mind that there was no Appeal before the Court of Appeal. The Court of Appeal has stated that the Notice of Appeal is not just a notice that can be dispensed with. A letter informing another party of an intention to appeal a decision of the High Court is not a Notice of Appeal, and does not place the matter within the jurisdiction of the Court of Appeal. Every lawyer knows that an appeal does not stay execution of an order of the High Court.

Effectively the Court of Appeal has allowed procedural steps of a court that does not have jurisdiction to stay execution of an order of the High Court. Convenience on its own cannot found jurisdiction. There must be another connecting factor. What is that factor in the instant case? None. There were at least 11 other High Court judges within a radius of 70km that could have been approached if Justice Dr. Dingake was not available. It is also not sustainable for the Court of Appeal to suggest that because it has heard a substantial portion of the matter it must continue with its error. Every lawyer knows that something that is a nullity cannot be cured. The question though is what to do about this mistake. The proper thing is to bury it. The Unions have accepted that the government has three months to give effect to the order of the High Court. The appeal is to be filed within a period of six weeks. This is shorter than three months. What is the point of arguing stay of execution before expiry of three months? The union can write to the government informing it that it does not intend to sue for contempt of court pending expiry of three months.

After all, contempt of court is not a civil offence but a criminal offence. This means the standard of proof is that of a criminal trial. The burden to prove contempt lies on the Union, and I do not see how given the concession on three months, the Union can hope to succeed. I know for a fact that Advocate Pilane knows about burying judicial mistakes. I have no doubt that he can explain to the instructing attorneys how this sometimes becomes necessary and how it is done. In the instant case the cost paid by the union to bury the mistake of the judiciary is well worth it. Should another litigant in future try to do what the government did I have no doubt that the judiciary will do the right thing. There are whispers that the judiciary is divided. This case gave the judiciary an opportunity to put this to rest. The Court of Appeal should have taken the opportunity to reassure the public of the unity of the judiciary. Justice Dr. Dingake is a High Court judge, and in terms of our constitution also a judge of the Court of Appeal, and given the position that an appeal does not stay execution of an order the Court of Appeal should have given credence to this by being thorough in determining the issue of jurisdiction. When the general public is given the impression that certain judges are pro-government and others anti-government it is incumbent on the legal fraternity to close ranks and to dispel these notions. At the forefront of these efforts should stand the President of the Court of Appeal, the Chief Justice and the Law Society. The President of the Court of Appeal cannot discharge the role of maintaining unity within the judiciary if he takes positions that are clearly not supported by the law. Divisions within the judiciary should not be given credence by the judiciary’s failure to operate within the rules of the game and by lawyers’ failure to offer the court the requisite assistance. We are a young country and cannot afford to have development of our jurisprudence tainted by what is convenient for particular litigants. Promotion of the rule of law requires that we all make our input.

Sometimes it might involve avoiding the courts making decisions on issues that we know are not properly before the courts, when the courts themselves lack the judgment to do the right thing, or are so far down the wrong path that they cannot extricate themselves. The lawyers must share part of the blame for what happened. It is the lawyers who formulate the issue in dispute, not the court. The government lawyers owe the courts a duty not to grab at any victory even if undeserved, and were wrong to treat application for stay as if it is different and independent from execution of orders of court. The arguments advanced were therefore of little assistance to the court. The Union lawyers were wrong to raise their client’s hopes in regard to contempt of court on the part of government. By not allowing the Court of Appeal to determine the application for stay the Union will effectively save the face of the judiciary inclusive of the lawyers. If the government lawyers want to be paid, were the union to pull back, then the union can still seek an order setting aside a costs order should the Court of Appeal award costs to the government. The issue of jurisdiction will arise and the matter laid to rest once and for all, that the Court of Appeal does not have jurisdiction in the manner held by the Judge President. I have no doubt that were the Union to take the route that I suggest, a full Court of Appeal will not hesitate to set the record straight, that the Court of Appeal has no jurisdiction over execution of orders of the High Court in the absence of a substantive appeal before it and a proper application for stay of execution. I have little doubt that given what I set out above the government will not be too keen to seek a costs order.

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