- October 21, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
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.
Therefore, it was held that:
a) 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 given 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.
b) 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 interests of justice to grant such order and further that another party will not be unfairly prejudiced thereby.
c) 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.
d) 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 utilized, the reliability of the audio-visual equipment sought to be used, and the connectivity thereof.
e) 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.
As a result, the applicant’s application was refused.