CIVIL PROCEDURE ‒ APPLICATION TO TESTIFY USING 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 ‒ CONSTITUTIONAL SUPREMACY OVER JUDICIAL DISCRETION ‒ ARTICLE 78 (2) OF THE CONSTITUTION ‒ DOCTRINE OF SEPARATION OF POWERS ‒ THE GENERAL POLICY OF THE COURTS TO ACKNOWLEDGE AND ADHERE TO THE DOCTRINE OF SEPARATION OF POWERS ‒ THE MAIN OBJECTIVE OF THE DOCTRINE TO PREVENT THE ABUSE OF POWER WITHIN DIFFERENT SPHERES OF GOVERNMENT. Moongo v Moongo NAHCMD 521 (22 August 2023)

This was an interlocutory application brought by Ms Moongo, seeking an order authorizing her to, at the trial of this matter give her evidence from Liverpool in the United Kingdom using 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 using 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 authorize her to give evidence from Liverpool in the United Kingdom using 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.

Therefore, it was held that:

a) The doctrine of separation of powers is part of our constitutional design. The courts must 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.

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

c) 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.

d) 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.