Constitutional Law

Nowaseb v The State (HC-MD-CRI-APP-CAL-2019/00046) [2020] NAHCMD 78 (06 March 2020);

Flynote: 

Constitutional Law – Human Rights – Right to legal representation – Fundamental right – Right not absolute – Imposing limits only in exceptional circumstances – where reasonable to limit such rights.

Constitutional Law – Human Rights – Right to fair trial – Article 12 (1) (e) Namibia Constitution – Accused to be afforded time and necessary facilities - Facilities including disclosure  to witness statements and other documentary evidence – Such right essential to a fair trial – Court’s failure to order state to provide disclosure – Amounts to ignorance of notions of justice and basic fairness.

Headnote and Holding: 

The appellant sought a postponement to secure the presence of his legal representative to attend trial. The right to legal representation is a fundamental right. The court refused a postponement on the grounds that the matter has been on the roll for a long time and it has been postponed several times to afford the appellant to get a legal representative. Furthermore, the court ruled that counsel for the appellant undertook to be in court but he failed to do so. The court proceeded in the absence of the appellant and his legal representative. Although the right to legal representation is not absolute as it is subject to certain limitations, such limitations should only be imposed in exceptional circumstances where it is reasonable to limit such rights. The limitation of such right was not reasonable in the circumstances.

Right to a fair trial. The appellant informed the court that he could not proceed with the case in the absence of his legal representative because he had paid him to represent him. Furthermore, the appellant argued that he was not able to proceed with the trial because he was not in a position to cross-examine witnesses as he was not provided with a disclosure. The right to a disclosure is essential for proper enforcement of appellant’s right to a fair trial. Article 12 (1) (e) that provides for accused to be afforded adequate time and facilities, not only refers to physical facilities but includes access to witness statements and other documentary evidence. By not ordering the state to provide the appellant with disclosure, the court ignored the notions of justice and basic fairness. There has been a misdirection on the part of the court. The appellant was deprived of a fair trial. The nature of the irregularly vitiates the proceedings.