- 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 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 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.
Schimming-Chase J:
‘[32] It is indeed 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 to avoid or correct an injustice. This inherent jurisdiction must be exercised only in exceptional circumstances and where there are strong grounds to persuade a court to act outside its powers provided for in its rules. The courts have repeatedly stressed that it is a power to be invoked sparingly and only if satisfied that justice cannot properly be done unless that form of relief is granted.
[33] Counsel for Prime Paradise referred to a number of cases where the court received virtual evidence via video link. I mention two for the purposes of this judgment. The first is Uramin (Incorporated in British Columbia) (t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ) and MK v Transnet Limited t/a Portnet [2018] JOL 40248 (KZD).
[34] In both these cases, evidence via video link was permitted by the High Court in South Africa. Also recognized was the inherent jurisdiction of the High Court to regulate its procedures in the interests of justice to afford a remedy not contained in the rules and to prevent injustice. The main principle elucidated in these two matters was that oral testimony in civil proceedings should ordinarily be given in person, however with the advancement of technology, there is a possibility for direct evidence to be taken from a witness in another country and for cross-examination to take place whilst the witness is visible to all. Although South African law does not cater for instances where a person cannot properly testify in court, the granting of an order permitting receipt of evidence in such a manner is within the court’s discretion, the main consideration being if the evidence is placed before the court in this manner, justice is likely to be done.
[36] In the Uramin case, the evidence to be tendered via video link related to an employment agreement, and neither the employee who had concluded the agreement, nor another employee who had executed settlement agreements were in the employment of Uramin anymore and were resident outside South Africa.
[37] In the MK case the evidence to be led via video link related to the determination of the quantum of damages regarding the duty of support after an accident resulting in in the death of the deceased. The witness whose evidence was to be led was an octogenarian and it did not appear to be in dispute that the witness was in ill health and unable to travel. Two medical certificates were provided that set out the witness’s condition in some detail.
[38] Mr Niknafs’ evidence is of a different nature.
[39] In the Namibian courts, two cases have dealt with the issue. In National Fishing Corporation (Pty) Ltd v African Selection Fishing (Namibia) (Pty) Ltd & Others, Sibeya J dealt with an application for leave to lead evidence via video link from a fugitive from justice resident in South Africa who averred that it would be unsafe for him to come to Namibia to testify. After a thorough consideration of the judgments of international jurisdictions on the issue including the judgments in Uramin and MK, the inherent jurisdiction of the court to regulate procedure was reiterated. In addition, the value of evidence received via video link to bring the court in line with the significant technological advances in this sphere was similarly underscored. In this regard, Sibeya J stated the following:
‘. . . The doors of the courtroom should, however, not be shut to key witnesses who find themselves to be geographically beyond the jurisdiction of the court. 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 to ensure that 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 located.’
[40] He further opined that
‘The fact that the statutes, rules of the court, and the common law do not make provision for the trial court to receive evidence during the trial via video link, should not be a barrier to so receive 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. The application to adduce evidence via video link should not be had for the mere asking. Courts should, therefore, scrutinize the application on the basis of the surrounding facts in order to determine whether or not it will be in the interests of justice to grant the order sought.’
[41] Sibeya J still refused the application on the grounds that a case had not been made out for the relief sought on the grounds that it was not proved on a balance of probability that the witnesses’ safety would be compromised. Simply put, he held that it was not established that once extradited, the witness’ life and limb would not be protected by the police if kept in custody or when so required.
[42] In contrast, Ueitele J, as recently as August 2023 penned a judgment on the issue of leading evidence by video link. He set out his reasons for his respectful disagreement with the judgment of Sibeya J in Moongo v Moongo (HC-MD-CIV-ACT-OTH-2019/02608) [2023] NAHCMD 521 (22 August 2023). This case involved an application to lead evidence via video link in a divorce action. The applicant was unable to travel to Namibia to give evidence personally for a number of reasons set out in her founding papers and summarised by Ueitele J in his judgment.
[43] After considering the application Ueitele J held that:
‘[41] The circumstances in which to admit video-link evidence must be duly considered and constitutionally-mandated legislation as opposed to ad-hoc decision-making by individual Judges must be followed. I hold the further view that to, in the absence of statutory provisions, admit video-linked evidence is tantamount to bypassing the constitutionally required process of amending statutes and rules of court under the guise of regulating its own process. I equally have come to the conclusion that to, in the absence of legislative provision, admit or allow video-linked evidence overlooks and undermines the doctrine of separation of powers.
[42] As I indicated the ramifications for the introduction of such rule (to receive evidence by video link) are complex. The introduction thus requires a thorough investigation, considerations of resource allocation issues may need to be considered and determined by those persons constitutionally mandated to do so, before the question of when, if at all, and in what circumstances and subject to what requirements, video-link evidence might be permitted. The Constitution identifies the functionary who must when the necessity arises to modernize the courts’ procedure, initiate that process.’
[44] In consideration of the two diverging judgments, let me make it clear that I am in respectful agreement with the principle that technology has advanced to such an extent that the receipt of evidence via video link should be welcomed in our courts. However, I do not believe that the receipt of evidence via video link is simply a matter of procedure only. It also involves a consideration of the jurisdiction of this court. By way of example, for the court to have jurisdiction to make an appropriate order in the event of perjury being committed by the witness, or the witness simply refusing from the remote location to answer questions.
[45] Rule 93(4) is an example. The rule requires the judge to admonish the witness before the witness reads the statement into the record, inter alia as follows: ‘Because of the oath you have taken or the affirmation you have made, I want you to understand that once you have read the statement into the record that statement is your evidence given under oath or affirmation in the proceedings and that if anything is not true and you are aware of such fact, you may be liable for perjury.’
[46] Counsel for Prime Paradise submitted in this regard that in the unlikely event that the witness perjures himself, the court can simply disregard the evidence. This argument cannot be sustained, because there are consequences to perjury, and the court must have jurisdiction to impose those consequences on a witness. I am accordingly in agreement with the sentiments expressed by Ueitele J on this issue. This simply dilutes the powers of the court to impose the proper sanctions.
[47] Sibeya J also recognized this conundrum when he stated the following in his judgment:
‘[44] A few challenges with hearing evidence via video link come to mind and the list is by no means exhaustive. Lack of basic infrastructure, including well-functioning computers, uninterrupted internet, and electricity connections to ensure smooth recording of evidence are but a few. Furthermore, a witness who testifies via video link cannot be compelled to testify, and if compelled in any manner, including an order of court, such will be difficult for the court to enforce. A witness who testifies via video link while beyond the jurisdiction of the court, may abuse his or her geographical distance from the court and speak loosely knowing that he or she cannot be committed for contempt of court or perjury. Even if he or she is convicted for contempt of court or perjury, such may be an academic exercise as it cannot be implemented given the distance.
[45] I am of the view that in order to cater to the above scenario and put a safeguard that the witness will adhere to the rules of court, such witness should be allowed to testify via video link from a country that has an extradition treaty with our country or a country that is duly designated in terms of the Extradition Act 11 of 1996. This will ensure that although such a witness may be beyond the geographical jurisdiction of the court, he or she is not beyond the long arm of the law of the land where the trial takes place.
[48] In this regard, Mr Niknafs is unable to even make attempts to travel to a country that has an extradition agreement with Namibia, as traveling to these countries also involves long flights.
[49] In addition, and as part of the court’s jurisdiction and ability to receive evidence via video link, the court itself must be in possession of the necessary facilities and programs to receive the evidence in that manner, and not be placed in the position to have to rely on the facilities of one or both of the parties, or even to leave the seat of the court to hear the evidence. The court would have no control over Mr Niknafs while he sits in another room, whether supervised or not. In this regard, I am advised by the Registrar of the High Court that although the facilities are available, the program(s) necessary for this purpose are not as yet available.
[50] That said, and even if the facilities were indeed available, I am not satisfied, in any event, that Prime Paradise has made out a case for the relief sought for the following reasons. Firstly, this application was brought almost one year after Mr. Niknafs was deposed to a witness statement on 29 June 2022. Dr. Rashidi also examined Mr. Niknafs before the witness statement was finalised on 13 June 2022. Despite the fact that the parties agreed on a two-month period for the launching of this application, I cannot ignore the fact that Prime Paradise had ample time to explore receiving evidence from the commissioner in terms of rule 91, or terms of s 28 of the High Court Act. Prime Paradise provided the court with absolutely no time frame as to when these enquiries were made, especially given that it knew in advance that Mr. Niknafs may not come to Namibia to testify. Apart from the undated enquiries, there is only a cursory reference to this procedure not being cost-effective. Prime has been litigating extensively in this court and in the Supreme Court, and given the value of the claim, this argument does not hold merit.
[51] Secondly, Mr. Niknafs has also not shown on a balance of probability that he is too ill to travel and too ill to make use of wheelchair facilities, layover, and other facilities available to offset any negative impact on his health. This is evident from the opinion of the cardiologist Dr Horak, which is accepted. In light of the foregoing, I hold that the application must be refused.
[52] On the question of costs, it is trite that the costs follow the event. Both parties were in agreement that, despite the interlocutory nature of the application, the circumstances of the matter and the complexity thereof warrants an order exceeding the cap foreshadowed in rule 32(11). I am inclined to agree with the parties.
In the result, the following was 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.
- that, 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.
- that, 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 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.
- that, at this stage, the court has the facilities but not the program(s) to facilitate the receipt of evidence via video link.
- that, in any event, the applicant did not make out a case for the relief sought, had the program(s) been available.