Since October 2022, the High Court has on three occasions adjudicated and ruled on applications for leave to lead evidence of a witness in another country (jurisdiction) at trial by way of video link. The issue has been that, whereas the rules of the court do not provide for leading evidence during trial via video link, should the courts allow such on an ad hoc basis, or should this be left to the lawmakers to make the rules, taking into consideration the advancements in technology?

The three cases are briefly summarised below:

National Fishing Corporation (Pty) Ltd v African Selection Fishing (Namibia) (Pty) Ltd & Others (HC-MD-CIV-ACT-OTH-2021/01143) [2022] NAHCMD 580 (21 October 2022)

Flynote

Civil procedure – Application brought on Notice of Motion for leave to lead the evidence of a witness in another country (Mr. de Klerk) at the trial by way of video link – Leading evidence via video link during the trial is not provided for in the rules of court – A court can, in the exercise of its discretion, where it is in the interests of justice, on good reason proffered for non-attendance in court, allow a witness in a foreign country to testify via video link, provided that other parties will not be unfairly prejudiced. The applicant is found not to have shown that it is in the interests of justice to lead the evidence of Mr. de Klerk via video link. The applicant further failed to show good reason why Mr. de Klerk cannot be in court attendance to physically testify. The application to lead evidence via video link is refused.

Summary

This was an interlocutory application, where the issue for determination was whether the applicant should be granted leave to lead the evidence of Mr. Maren de Klerk, who is outside the jurisdiction of the court and who is said to be in South Africa, via video link, as he is not willing to attend court in person for safety reasons.

Held that:

The doors of the courtroom should not be shut to key witnesses who find themselves to be geographically beyond the jurisdiction of the court, particularly in view of the purpose of the courts, which is to deliver justice. It is incumbent on the courts to ensure not only that justice is delivered to those in physical court attendance, but also that all persons have access to justice. This includes enforcing a person’s right to a fair trial, which encompasses the right to call witnesses wherever they may be.

The fact that the statutes, rules and common law do not make provision for the court to receive evidence during the trial via video link, should not be a barrier to receiving such evidence via the said video link where, on application, good cause is shown that it is in the interests of justice to grant such order, and further that another party will not be unfairly prejudiced thereby.

Held further that the administrative and technical facilities and arrangements made at the place where the witness is expected to give evidence should be laid bare for the court to satisfy itself with the process that it is about to approve.

Held further that: The applicant failed to set out the details of the proposed video link. The court is in darkness as to the nature of the technology sought to be utilised, the reliability of the audio-visual equipment sought to be used, and the connectivity thereof. 

Held further that: The applicant failed to establish that it is in the interests of justice to grant leave to lead the evidence of Mr. de Klerk at the trial via video link. The applicant further failed to show good reason why Mr. de Klerk cannot be physically present in court to give viva voce evidence.

As a result, the applicant’s application was refused.  

Moongo v Moongo (HC-MD-CIV-ACT-OTH-2019/02608) [2023] NAHCMD 521 (22 August 2023)

Flynote

Civil procedure ‒ Application to testify by means of video link – Not provided for by the Rules of the High Court, Statute or Common Law principle ‒ Absence of statutory provision or a common law principle ‒ Ad-hoc decision-making by individual Judges. 

Constitutional law ‒ The Constitution is the supreme law ‒ Article 78 (2) of the Constitution ‒ Doctrine of separation of powers ‒ The general policy of the courts is to acknowledge and adhere to the doctrine of separation of powers. The main objective of the doctrine is to prevent the abuse of power within different spheres of government ‒ Courts to observe the limit of their own power ‒ The application to testify via video link is refused. 

Summary

This was an interlocutory application brought by Ms. Moongo, seeking an order authorising her to, at the trial of this matter, give her evidence from Liverpool in the United Kingdom by means of a video link, because she was unable to travel to Namibia. 

The plaintiff’s application in terms of s 28(1) of the High Court Act of 1990 for the issuance of a letter of request to be issued to the competent court in the United Kingdom, requesting said court to appoint a particular person to act as a commissioner to take evidence of the plaintiff by means of interrogatories, was granted on 10 March 2021. The execution of this court order has remained problematic. Ms. Moongo, frustrated by the stalling of the trial, approached this court, seeking an order to authorise her to give evidence from Liverpool in the United Kingdom by means of a video link.

Ms. Moongo claimed that she is unable to travel to Namibia because she is the primary caretaker of her ill parents. If she travels to Namibia for the trial, she will have to travel with her children who will miss out on their schoolwork, and there will be no one to take care of her parents. She finds herself unable to work and as a result, she does not have the financial means to afford to travel to Namibia.

Held that:

The doctrine of separation of powers is part of our constitutional design. The courts have a duty to acknowledge and adhere to the doctrine of separation of powers. The objective of the doctrine is to prevent the abuse of power within different branches of government.

In our  Constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, but they also have the duty to do so. The courts must also observe the limit of their own power, and that the injunction by the Constitution to respect and uphold the Constitution also binds the judiciary. 

Held further, that the introduction to receive evidence by video link requires a thorough investigation, issues that require to be determined by those mandated to do so by the Constitution, which is the legislature and not individual judges.

Held furthermore that to, in the absence of legislative provision, admit or allow video-linked evidence overlooks and undermines the doctrine of separation of power and the Constitution, which is the supreme law of the country.

As a result, the plaintiff’s application was refused.

Wilmington Savings Fund Society FSB v Prime Paradise International Limited (AC10 /2021) [2023] NAHCMD NC 558 (8 September 2023)

Flynote:

Civil procedure – Oral Evidence – Adducing of evidence by way of video link procedure – Court not having the necessary programme(s) in place to receive evidence – Court not amenable to permitting one or both of the parties to manage the facilities and programme for the adducing of evidence via video link.

Jurisdiction – The High Court has an inherent power to regulate and determine its own procedures in the proper administration of justice. The power has been exercised in exceptional cases to afford the parties a remedy not afforded in the rules to avoid or correct an injustice.

Jurisdiction – receipt of evidence via video link is not simply a matter of procedure, but also of substance – Cementing the court’s jurisdiction and competence to ensure compliance with its orders. 

Summary

In an interlocutory application, the interested party in an admiralty action set down for trial from 18 September to 6 October 2023 applied to lead the evidence of one of its main witnesses via video link. This witness is a national of and resides in the Islamic Republic of Iran. 

The grounds for the application, launched two months before the trial date, are that the witness suffered a heart attack during 2019. The witness was examined by a medical practitioner on 13 June 2022, and his witness statement was delivered on 29 June 2022. On 2 October 2022, the witness’ medical practitioner advised that he refrain from long travels, as the change in temperature and altitude might have a negative effect on his health. The witness was not able to travel to any country with which Namibia has an extradition agreement, also on the grounds that the flights were too long. 

The application of the interested party was opposed by the plaintiffs, who contended inter alia that the applicant failed to make out a case for the relief sought. They further argued that in any event, the evidence of the witness’ ill-health was not properly supported or explained by his medical practitioner, and that he failed to place before court an explanation for possible alternatives other than testimony via video link, such as arrangements for Mr Niknafs to fly medically-aided and at short distances to offset any possible negative impact to his health.

Held that:

It is well-established that the court has the inherent power to regulate and determine its own procedures in the proper administration of justice. This power has been exercised in exceptional cases to afford parties a remedy not afforded in the rules, or to correct an injustice.

The receipt of evidence via video link is not simply a matter of procedure only, but also one of substance related to its jurisdiction and competence to exercise some form of control over the witness during the receipt of evidence, if this is called for. By way of example, the jurisdiction to make an appropriate and enforceable order in the event of perjury being committed by the witness. 

Receipt of evidence via video link should be provided for either in the rules of court or legislation, and should not be dealt with on an ad hoc basis. It should be dealt with in a manner that enables the court to exercise proper jurisdiction and control. Leaving this aspect to one or both of the parties is not sufficient.

At this stage, the court has the facilities but not the programme(s) to facilitate the receipt of evidence via video link.

In any event, the applicant did not make out a case for the relief sought, had the programme (s) been available. 

As a result, the interested party’s application to lead the evidence of Mr Masoud Niknafs via video link was refused.

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