- September 8, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
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 in 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’s medical practitioner advised that he refrain from long travels, as the change in temperature and altitude, might hurt his health. The witness was not able to travel to any country with which Namibia has an extradition agreement, also because 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 the 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.
It was held that:
a) It is well established that the court has the inherent power to regulate and determine its 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.
b) 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 is to make an appropriate and enforceable order in the event of perjury being committed by the witness.
c) Receipt of evidence via video link should be provided either in the rules of court or legislation and should not be dealt with on an ad hoc 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.
d) At this stage, the court has the facilities but not the programme(s) to facilitate the receipt of evidence via video link.
e) 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.