- December 6, 2022
- |Law Everyday
COURT DECORUM ON DISPLAY
The use of television cameras in the Namibian courtroom can be traced back to 2010 when the High Court and
Supreme Court granted such access to media houses to cover the election challenge in the RDP & Others v
Electoral Commission of Namibia case. Such access was notably granted in line with sections 13 of the High Court
Act, 1990 (Act No. 16 of 1990) and section 6 of the Supreme Court Act, 1990 (Act No. 15 of 1990), which provides
that court proceedings be held in open court. Judgments in criminal cases on the other hand must be given in
public, as per Article 12 (1) (c) of the Namibian Constitution, save where there are compelling circumstances not
to. In this regard, the Judgement in the Treason case was televised.
Since then, media access, subject to conditions, has been granted in many matters before the Superior Courts
of Namibia. It will suffice to state at this point that, with such access came the opportunity for the public to
witness first-hand how court proceedings are conducted, and how the different players in the courtroom
conduct themselves.
Fast-forward to August 2022, the proceedings of the various bail applications brought by the Fishrot accused
persons have been covered in like manner as described above and so was the Amushelelo bail application. It is
of no surprise that video clips from these proceedings often trend on social media. In one such video, which
appears to be a clip from the Fishrot bail proceedings of 24 August 2022, the applicant is heard telling the State
Prosecutor that a certain amount is significant ‘to you’, and in another video, which appears to be a clip from
the proceedings of 25 August 2022, applicant is heard telling the State Prosecutor that‘you must have manners’,
after which the presiding judge is heard calling upon the parties to ‘calm down’. The applicant is seeking bail
and has been under cross-examination by the State.
A few days before these video clips surfaced, on 22 August 2022, the High Court delivered an appeal judgment
in Amushelelo v S. In that judgment, the learned Justices stated the following:
“Coming to the testimony of the first appellant, this court will undoubtedly fail in its duty if nothing is
said about the attitude of the appellant displayed during cross-examination by the state. The appellant’s
demeanour smacked of arrogance and his answers to questions relevant to the enquiry, too often, were
sarcastic and clearly intended to insult the person of the prosecutor. At some point the court appropriately
issued a warning to the appellant and advised him to rather focus on the questions posed and which he was
required to answer. Such behaviour by a witness when giving evidence is unnecessary, unacceptable and must
be discouraged in the strongest terms. Not only does it erode the decorum of the court, it is simply not in the
interest of justice to allow such behaviour in a court of law. It should therefore be nipped in the bud by presiding
officers the moment it raises its ugly head.”
There are two important points to take from the dictum above. The first one is that court decorum is an
important aspect of the court system. Decorum simply means proper behavior. According to
https://www.lawinsider.com, proper behavior in a trial means behaving formally with an emphasis on courtesy.
This includes treating everyone in the courtroom with courtesy and respect, not reacting negatively by facial
expressions, eyerolling or comments to testimony or arguments you disagree with, among other things. The
second one is that presiding officers have a duty to maintain the decorum of the court and, in doing so, they
can reprimand a witness whose attitude tends to erode the decorum the moment it arises.
Both these things are aimed at focusing on the proper questions which a witness is required to answer. I like to
say that courts are truth-seeking institutions. Therefore, when questions are asked to a witness in a trial and or
any other proceedings, they are intended to find the truth. Subject to all their rights in law, it will be good for
such witness to answer the questions, or not, without being sarcastic or arrogant. This also means that the
legal representatives must also ask truth-seeking and honest questions. In other words, be courteous to one
another. It is in the best interest of justice. These aspects of decorum cannot be more emphasized now that
court proceedings are often streamed live.
In respect of legal practitioners observing the decorum of the court, I would like to refer to the conduct of one
Advocate Teffo in the Meyiwa trial in South Africa which left many spectators of that trial dumbfounded. The
Advocate’s Oscar worthy performance included swearing and accusing the presiding judge of practicing
witchcraft. This often led to heated exchange of words between the Advocate and the presiding judge, and, in
this age of social media, the Advocate’s televised antics left him a meme Lord (talk about unintended
consequences!), as a cherry on top of mounting charges of unprofessional conduct.
All these things played right in front of our eyes, on social media, live streaming channels, television and or
podcasts. Court decorum on display! The point is this, a courtroom should not be turned into a show of wits, or
a spectacle. The decorum and all it entails must be observed by all and sundry, especially now that it is on
display.