Judgment No. SC 18/18 Civil Appeal No. 137/16 In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA at pages 973H to 974C said: “The above matters are not crucial to the determination of this appeal. They are however, important because a frequent departure from counsel’s, more correctly the litigant’s case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not a judicial officer. It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the Judge’s point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel. To produce a wide –ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position. Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued? In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.” Before leaving this aspect of the appeal I consider it appropriate to refer to what was said by BHAGWATI J (as he then was) in M. M. Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India: “It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case”. (emphasis added) In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724 at 726 I to 727 A, PICKERING J commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence and submissions of the parties said: 12