Judge lays down the law for psychologists to testify

22 February 2019 · Carmel Rickard

FOR as long as anyone can remember psychologists from SA, called to give expert evidence in the courts of their Namibian neighbours, have been able to do so without a problem. But no longer. A new high court decision, delivered as part of what appears to be a bitterly-contested divorce dispute, has held that no psychologist may give expert evidence in court unless registered with Namibia’s professional council – and that includes practitioners from just over the border.

This article first appeared in LegalBrief.

WHEN an unnamed couple began divorce action in Namibia no-one could have foreseen that it would result in new law, changing long-standing norms about who may give expert psychological evidence in that country.

At the heart of this particular element of the couple’s dispute was the question: when a psychologist from another country gives evidence in Namibia, does it amount to ‘practising’ there?

The court was faced with an urgent application on this issue in the course of its dealing with the divorce. A clinical psychologist from SA, properly registered in that country, had been called by one of the two parties to give evidence in the main matter as an expert witness. Both sides had agreed to his being called and being allowed to prepare and submit an expert report. The husband had had a consultation with the psychologist that was to form part of the report. The psychologist had prepared his report and had even been paid for the work. Then, without warning, the husband’s legal team challenged whether the psychologist could be lawfully heard by the court. The challenge was based on technical legal grounds, namely that he (the psychologist) was not registered with the Social Work and Psychology Council of Namibia as required by the Social Work and Psychology Act, 6 of 2004.

The wife’s legal team argued that the husband and his lawyers ‘knowingly consented’ to the expert’s involvement. They said the psychologist could not be said to ‘practise’ in Namibia if he testified as part of a ‘once-off’ specialised function. They also argued that the Namibian courts had previously accepted the evidence of experts from SA, who ‘testify in our courts on a regular basis’. Also, had the objection been made earlier, an application could have been brought to register him for practice in Namibia.

The husband’s lawyers told the court that, in arguing for the psychologist to be allowed to testify, the other side was effectively saying the court should permit an illegality. Unless the expert was registered in Namibia he was not entitled ‘to practice’ as a clinical psychologist there. In the view of this team, the word ‘practice’ included ‘any act pertaining to (his) profession, which includes drafting a report and testifying in court as an expert'. If he were to ‘practice’ without being registered, he would be committing a criminal offence.

The wife ‘should have been aware of the possibility’ that the expert would not be allowed to testify if he was not registered, and the husband could not be blamed for only raising an objection after his initial agreement

Judge JS Prinsloo, who heard the matter, said: ‘The burning question that this court must answer is whether (the psychologist) needs to be registered (albeit temporarily) with the council in order to testify as an expert witness in this court.’

After trawling through the meanings of the words used in the law, the judge said, 'The practice of a clinical psychologist includes reporting and testifying in a court as an expert.’ When he testified and produced his report in court, the intended witness would be doing so in the course and scope of his ‘practice’ and he therefore had to be registered with the Namibian council.

What about the fact that SA psychologists had been ‘accepted without any problems by our (Namibian) courts’ and that both parties had agreed to the expert’s report? The court was bound by statute, said the judge, and could not go beyond the law. Thus, regardless of whether the parties had agreed to the report of the expert witness ‘the court cannot accept that he testifies and hands in his report if it would mean that this court would act ultra vires’.

The judge accepted that SA expert witnesses in this field had previously testified in the Namibian courts, but the issue (of registration) had not been raised in earlier cases.

Even if both sides had agreed to calling the witness, it was the duty of the wife to ensure the ‘status’ of the witness she wanted to call and costs in this application were awarded against her.

So what does all this mean? In the case before court it will surely lead to further acrimony, delays and costs. For the profession? Not difficult to imagine more SA psychologists wanting to sign up to the professional councils in their neighbouring states.

C S v C S (HC-MD-CIV-ACT-MAT-2017/00179) [2018] NAHCMD 236 (9 August 2018)

Carmel Rickard

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