WINDHOEK – A state witness in an ongoing murder and robbery trial yesterday refused point-blank to give testimony immediately after being sworn in as a witness, telling the prosecution: “Let me stop you right there, as I wish to withdraw as a witness.”
State Advocate Ethel Ndlovu had just started to question the witness, Ricardo Lincoln Scholtz. A dumbfounded Ndlovu then turned to Judge Naomi Shivute for intervention, but the stubborn Scholtz stuck to his guns. Not even a few minutes break could change Scholtz’ mind, who returned only to inform the judge about his constitutional right not to testify if he does not wish to. “Your Honour,” he said, “this case is interfering with my private life and I already told the Prosecutor General (sic) last year during consultation that I will not testify.” Scholtz is one of the state witnesses in the ongoing murder and robbery trial, in which Toivo Kashipolo, Willem Valombola and Fillipus Shishiveni Nomongula are accused of killing Andries Petrus de Jager in an attempt to rob him of a briefcase containing N$172 488 in cash.
All suspects already pleaded not guilty to all charges at their first court appearance. Scholtz still refused to testify even after Judge Shivute informed him about the possibility of going to jail for a maximum of two years for refusing to give evidence. “If I am to be sent to jail for doing nothing, then so be it,” he said, adding that he is not a criminal and that he is just exercising his ‘right’ not to testify. The judge then advised Scholtz of his rights and he immediately chose to defend himself, since according to him “this is not so serious as to warrant a lawyer.” Judge Shivute then strongly advised him to consult a lawyer or to apply for legal aid and told him that she, although hesitant, could invoke the provisions of Section 189 of the Criminal Procedure Act, which gives her the right to send him to jail for two years for being recalcitrant.
Scholtz would however not be moved by the judge’s explanation and said if someone can be sent to jail for doing nothing then the justice system and the constitution itself needs to be re-written. At that stage defence lawyer Monty Karuaihe, who is representing Kashipolo, jumped to his feet and requested Judge Shivute to rather postpone the testimony of Scholtz to a later date to give him an option to either consult a lawyer or really think about his situation. “My Lady, I don’t think the witness has grasped the severity of the situation. Maybe it would be better to remand his testimony to another day to give him an opportunity to really think about his decision and to get some legal advise he said,” he said.
Advocate Ndlovu later also informed the judge that she will have another consultation with Scholtz to try and impress upon him the seriousness of his decision. The judge further informed Scholtz that she will give him another chance and remanded his testimony to next week Tuesday.
By Roland Routh