S v Scholtz (2) (SA 6 of 1994) [1996] NASC 2 (6 February 1996)

S v Scholtz (2) (SA 6 of 1994) [1996] NASC 2 (6 February 1996)

The Supreme Court held that, under Article 12 of the Namibian Constitution, an accused in the High Court is ordinarily entitled to disclosure of information in the police docket, including witness statements, regardless of whether the prosecution intends to call those witnesses. The common law privilege over such statements is inconsistent with the constitutional right to a fair trial and equality before the law. However, the State may withhold information if it satisfies the court that disclosure would impede justice or be against the public interest. The timing of disclosure should generally be before plea, but may be deferred if justified. The court issued a declaratory order to...

Citation
[1996] NASC 2
Parties
Appellant: The State; Respondent: Gert Johannes Scholtz
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
6 February 1996
Case Number
SA 6 of 1994
Procedural Posture
Criminal Appeal / Appeal Judgment From High Court Order on Disclosure of Witness Statements
Outcome
Declaratory order issued; appeal neither upheld nor dismissed in the traditional sense.
Legal Topics
Disclosure of Evidence, Witness Statement Privilege, Right to Fair Trial, Public Interest Immunity, Interpretation of Constitutional Rights
Source Language
English
Criminal Law Constitutional Law Criminal Procedure Disclosure of Evidence Witness Statement Privilege Right to Fair Trial Public Interest Immunity Interpretation of Constitutional Rights

Case Brief

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Parties

The State

Appellant

Gert Johannes Scholtz

Respondent

Procedural Posture

Criminal Appeal / Appeal Judgment From High Court Order on Disclosure of Witness Statements

Legal Issues

  1. 1 Whether the accused is entitled to disclosure of witness statements in the possession of the prosecution prior to trial
  2. 2 Whether the common law privilege over witness statements survives under the Namibian Constitution
  3. 3 Whether public interest immunity justifies non-disclosure of certain materials

Ratio Decidendi

The Supreme Court held that, under Article 12 of the Namibian Constitution, an accused in the High Court is ordinarily entitled to disclosure of information in the police docket, including witness statements, regardless of whether the prosecution intends to call those witnesses. The common law privilege over such statements is inconsistent with the constitutional right to a fair trial and equality before the law. However, the State may withhold information if it satisfies the court that disclosure would impede justice or be against the public interest. The timing of disclosure should generally be before plea, but may be deferred if justified. The court issued a declaratory order to...

Court Disposition

Declaratory order issued; appeal neither upheld nor dismissed in the traditional sense.

Orders

  • It is declared that in High Court prosecutions, the accused is ordinarily entitled to information in the police docket, including witness statements, whether or not the prosecution intends to call such witnesses.
  • The State may withhold information if it satisfies the court on a balance of probabilities that disclosure would impede justice or be against the public interest.