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S v Scholtz

S v Scholtz

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Published by André Le Roux

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Categories:Types, Research, Law
Published by: André Le Roux on Dec 19, 2010
Copyright:Attribution Non-commercial

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12/19/2010

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CASE NO.
:
SA 6/94
IN THE SUPREME COURT
OF NAMIBIA
WINDHOEK, TUESDAY, 6 DECEMBER 1995'BEFORE THE HONOURABLE MR. JUSTICE MAHOMED, C.J.THE HONOURABLE MR. JUSTICE DUMBUTSHENA, A.J.A.THE HONOURABLE MR. JUSTICE LEON, A.J.A.In the matter between:THE STATE APPELLANTandGERT JOHANNES SCHOLTZ RESPONDENTCoram: Mahomed, C.J.; Dumbutshena, A.J.A., et Leon, A.J.A.Heard on: 1994/12/06Delivered on: 1996/02/06APPEAL JUDGMENT
 
- 2 -DUMBUTSHENA. A.J.A.: .This
appeal comes to this Court by leaveof the court
a
quo. That leave was granted on the
understanding 'that
only
one
ground of appeal
was
to be argued.
That ground is:"That the Honourable Judge erred in law to order thatcertain witness statements are not privileged
and
shouldbe made available to the defence".In this appeal the State is the Appellant and the Respondentwas the accused at the criminal trial. During the trial anapplication was made on his behalf for the disclosure, by the?rcsecutor-General to the accused of the witness statements ofthese witnesses who had not yet testified. Hannah, J, grantedthe order directing the Prosecutor-General to produce thespecified witness statements.In passing it is proper to mention that the Respondent has nointerest in the appeal. He was acquitted on one count ofmurder and one count of attempted murder and convicted forassault with intent to do grievous bodily harm. He wassentenced to 18 months imprisonment which was wholly suspendeden apprcpriate conditions. The court a, QUO ordered him to payto the complainant, Patricia Waters, the sum of one thousandRands
(R1000,00).
This appeal and the judgment thereof have wide implicationsand effects on the administration of justice and more so on
 
- 3 -the work of the Prosecutor-General's Department. It was forthis reason that after hearing argument this Court made and
handed
in a declaratory order. We did not want to delay theconsequences flowing from our judgment.
This is the order
we
made:"ORDER:A formal order upholding or dismissing the appeal would inthe circumstances of this case be inappropriate and willnot serve or fulfil the object of this litigation which isto provide helpful guidance in future prosecutions inwhich the accused seeks to obtain the contents of policedockets relevant to the prosecution on
a
particularmatter. The most useful course would be to make an orderin the form of a declarator.It is accordingly declared that:1. In prosecutions before the High Court, an accusedperson (or his legal representative) shall ordinarilybe entitled to the information contained in thepolice docket relating to the case prepared by theprosecution against him, including copies of thestatements of witnesses, whom the police haveinterviewed in the matter, whether or not theprosecution intends to call any such witness at the
trial.
2.
The State shall be entitled to withhold from theaccused (or his legal representative), anyinformation contained in any such docket, if itsatisfies the Court on a balance of probabilities,that it has reasonable grounds for believing that thedisclosure of any such information might reasonablyimpede the ends of justice or otherwise be againstthe public interest. (Examples of such claims arewhere the information sought to be withheld woulddisclose the identity of an informer which it isnecessary to protect, or where it would disclosepolice techniques of investigation which it issimilarly necessary to protect, or where suchdisclosure might imperil the safety of a witness orwould otherwise not be in the public or stateinterest.)3. The duty of the State to afford to an accused person(or his legal representative) the right referred toin paragraph 1 shall ordinarily be discharged uponservice of the indictment and before the accused is

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