Namibia SC | Extending liability to State for mala fide conduct of judicial officer may create far worse mischief than not extending it

Supreme Court of Namibia: The Three-Judge Bench of Shivute, CJ., Frank, AJ and Damaseb, DCJ. (dissenting), stated that making the State liable for individual acts of the judiciary poses a risk of undermining a foundational value of the Constitution.

The appellant has pleaded against the conduct of the judicial officer wherein the trial of the appellant was wrongful and unlawful and in consequence, thereof his liberty was curtailed otherwise than in accordance with procedures established by law under Article 7 of the Namibian Constitution for which as the appellant pleads to be compensated by the respondent. The respondent refused to own the liability which completely was for the judicial branch and contended that judicial officers were not in the employment of the State thus they were immune from their actions.

The Court basing its judgment upon the independence of the judiciary reiterated the fact that independence of the judiciary and the separation of powers militated against holding the State liable for the conduct of the judicial branch as they have no power over the judicial functions. Further, when there was a default in exercising that function the Constitution has also provided for an existing recognized right of recourse against the officer.

Thereafter new remedy in public law cannot be recognized against the respondents for the action of the judiciary. Accordingly, the appeal was dismissed.[Pieter Petrus Visagie v. Republic of Namibia, SA 34/2017 [2018] NASC 411, order dated 03-12-2018]

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