2
REPUBLIC OF NAMIBIA
REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 56/2014
In the matter between:
RICHWELL KULISESA MAHUPELOPLAINTIFF
and
MINISTER OF SAFETY AND SECURITY 1ST DEFENDANT
PROSECUTOR GENERAL 2ND DEFENDANT
GOVERNMENT OF THE REPUBLIC OF NAMIBIA 3RD DEFENDANT
Neutral citation:Mahupelo v The Minister of Safety and Security(I 56/2014) [2017] NAHCMD 25 (2 February 2017)
Coram:CHRISTIAAN AJ
Heard:03, 04,07,08,09 NOVEMBER 2016
Order released:02 February 2017
Judgement released:10 February 2017
FLYNOTE: DELICT – Delict – Elements; Malicious prosecution;instigation or continuation of prosecution; whether the police orprosecutor acted without reasonable and probable cause – Plaintiffacquitted of offence charged – proof of animus iniuriandi-Prosecutor had no personal knowledge of the facts underlying thecharge – whether the prosecutor did not honestly form the view thatthere was a proper case for prosecution or whether the prosecutorformed that view on an insufficient basis.
DELICT – Development of the common law; malicious prosecution-maintaining prosecution without reasonable or probable cause oranimus iniuriandi where prosecution is no longer justified –liability when the proceedings are maintained thereafter. Whetherprosecutor acted maliciously – whether the sole or dominant purposeof the prosecutor was other than the proper invocation of thecriminal law- Public rather than private prosecution.
STATUTE - Section 39 (1) of the Police Act 19 of 1999 - anamendment of the particulars of claim adding a new cause of actionbased on same facts does not warrant the issuance of a new noticein terms of the said Act.
ETHICS – Ethical duty of the Prosecuting counsel in criminalmatters- prosecutors were under a constitutional duty to act fairly, independently and professionally in the performance of theirduties -
SUMMARY: Plaintiff sued the defendants jointly and severally fordamages for malicious prosecution – alternatively, constitutionaldamages based on same facts – Plaintiff was arrested, detained andcharged with the offence of high treason, sedition, murder andother serious charges – but found not guilty and discharged at theclose of the State’s case..
Held – That in cases where a notice in terms of section 39 (1)of the Police Act has been issued in respect of certain factsalleged, an amendment of the particulars of claim adding a newcause of action based on same facts does not warrant the issuanceof a new notice in terms of the said Act.
Held - that the first defendant did nothing more than placeevidence and statements before the second defendant for the latterto make a decision whether or not to prosecute and therefore is notculpable regarding the claim of malicious prosecution.
Held further – there is a need to develop the common lawregarding the delict of malicious prosecution by extendingliability to cases where although the initiation of the proceedingswas bona fide, it however becomes apparent in the course of theproceedings that no reasonable or probable cause still exists tocontinue the proceedings.
Held further – that although the initiation of criminalproceedings was bona fide, it became clear, at a certain pointthat, the evidence against the accused could not sustain aconviction and that the continuance of the criminal trial afterthat realisation was actionable and that malice could be inferredtherefrom.
Held – prosecutors are under a constitutional duty to actfairly, independently and professionally in the performance oftheir duties and that they should be acutely aware that theirdecisions in criminal trials may have debilitating consequences onaccused persons’ rights to a fair trial and may affect the exerciseof other human rights and freedoms.
ORDER
Having regard to all the foregoing issues and findings, theorder issued on 02 February 2017 is amplified with the followingorder:
1. The point in limine regarding the alleged non-compliance withSection 39(1) of the Police Act No. 19 of 1990 is dismissed.
2. The action against the first defendant for maliciousprosecution is dismissed with costs.
3. The claim against the second defendant for institutingcriminal proceedings against the plaintiff is dismissed.
4. The plaintiffs’ alternative claim based on maliciouscontinuation of the prosecution without reasonable and probablecause is upheld.
5. Costs are granted in favour of the plaintiff against thesecond defendant and the third defendant jointly and severally, theone paying the other to be absolved: consequent upon the employmentof one instructing and two counsel
6. The matter in relation to the 2nd defendant is postponed to14 February 2017 in chambers at 14h15 for direction regardingcontinuation and finalisation of the matter on the quantum.
JUDGMENT
CHRISTIAAN AJ:
Prologue
[1]On 2 February 2017, I delivered an order in this matter andindicated that the reasons therefore would be rendered in duecourse. Those reasons follow below. The order I issued on the dateof delivery thereof has been reproduced above in an amended fashionso as to lend to clarity and precision, without changing theessence thereof. It is for that reason that the order recorded inthis judgment may not appear to be couched word for word with theearlier one.
Nature of the case
[2]On 02 August 1999 various installations and governmentinstitutions were attacked with weapons of war. These included theKatima Mulilo Town Centre, the Katima Mulilo Police Station, theWenela Border Post, the Kautonyana Special Field Force Police Base,the Mpacha military base and the Namibia Broadcasting Corporationbuilding. As a result, various people were killed; some sustainedserious injuries and motor vehicles and buildings were alsodamaged.
[3]Plaintiff and other accused persons were indicted on 18 May2001, for their alleged role in the attack in what became known asthe Caprivi Treason Trial. The charges against the plaintiffincluded high treason, sedition, public violence, murder androbbery. The charges against the plaintiff were based onallegations of common purpose and conspiracy to commit the saidoffences. A State of Emergency was declared by the President in theCaprivi Region on 03 August 1999 and it ended towards the end ofthe same year.
[4]The Caprivi Treason trial was distinctive and unprecedentedin the legal history of this country. This could be related fromthe fact that 126 accused persons were charged on 278 counts, basedon the doctrine of common purpose and conspiracy. There were 379witnesses who testified on behalf of the State and more than 900witness statements had to be considered. The duration of the trialwas estimated to be about 10 years.[footnoteRef:1] During thisperiod the accused were detained in custody and some of the accusedand witnesses have died. [1: Pleadings bundle p. 180 para 57.]
Introduction
[5]The matter in question is a consequence of the arrest anddetention of the plaintiff by the officials of the Ministry ofSafety and Security and the subsequent prosecution of the plaintiffby officials of the Prosecutor General’s office, on suspicion thatPlaintiff was guilty of High Treason, Sedition, Murder and otherserious crimes.
[6]The principal claim is brought against both the first andsecond defendants for malicious prosecution under the common law inrespect of the period of 16 March 2000 to the end of March 2006,alternatively the end of November 2011. The alternative to theprincipal claim is only against the second defendant and/or heremployees, for damages based upon the alleged wrongful andmalicious continuation of the prosecution as from March 2000,alternatively November 2011, for the crimes set out in theindictment.
[7]In addition, to this, the plaintiff brings an alternativeclaim for constitutional damages on the same facts, based upon thewrongful, unlawful and negligent violation or infringement of theconstitutional rights by the defendants, or their employees, inarresting the plaintiff on 16 March 2000 and/ or prosecuting theplaintiff thereafter for high treason and the further charges inthe indictment. The plaintiff’s alternative claim is based on theviolation of Art 7, 8, 11, 12,13,16,19 and 21 of the NamibianConstitution. He claims damages as contemplated in Art 25(3) or 25(4) of the Namibian Constitution. The alternative claim based onconstitutional damages is brought in the event that the claim basedon malicious prosecution fails.
[8]The liability and quantum were separated by agreement betweenthe parties. This trial concerns the liability only. At this pointit is safe to mention that the total claim amounts to N$15,321,400. In the event that liability is established, the courtwill proceed and hear evidence on the quantum.
[9]The particulars of claim were amended on two occasions byapplication, firstly, with regards to the alternative claim forconstitutional damages and secondly, based on the alternative claimto the principal claim after evidence came up duringcross-examination of the second defence witness. Both theseapplications were successful and the particulars of claim were dulyamended.
[10]A pre-trial conference was held in which issues of fact andlaw to be addressed during the trial and in this judgment wereidentified and a draft pre-trial report was made, which was made anorder of court on the first day of trial. The trial commenced andfour witnesses were called to testify.
Observation and approach
[11]I would like to point out that this case raised novel andcomplex issues, some of which have never been decided by ourcourts. This includes not only the proper interpretation to begiven to the requirements for malicious prosecution, but alsowhether the continuation of a prosecution beyond a certain datewhen there is no longer a reasonable and probable cause, would alsoconstitute malicious prosecution in terms of our common law.
[12]I will deal with the issues in sequence. First I willaddress the preliminary issues and legal contentions raised in thepleadings. Secondly, I will chronicle of the facts which gave riseto the dispute between the parties and deal with the legalprinciples regarding the delict of malicious prosecution. Inrespect of each of the issues above, I will apply the facts to thelegal principles immediately after I have discussed such legalprinciples.
Preliminary issues and legal contentions
[13]Two preliminary points and legal contentions were raisedduring the pleading stage, but one of the legal contentions dealingwith the aspect of prescription was abandoned by the defencecounsel. I will therefore not continue to discuss the point on theaspect of prescription and I will say no more about it.
Point in limine
Section 39(1) notice of the Police Act[footnoteRef:2], No.19 of1990 [2: No. 19 of 1990]
[14]The point taken by the defendant that gave rise to the legalcontention is the alleged failure by the plaintiff to give thefirst and third defendants notice in terms of section 39(1) of thePolice Act on the alternative claim for constitutional damages.This according to the defendants prevents the plaintiff from bringsuch a claim.
[15]It is expedient to set out the relevant provisions of s 39(1) of the Police Act in order to address the point taken by thedefendant. I suggest the issue taken in limine be set out beforereference is made to the Police Act. Section 39 (1) of the PoliceAct reads:
’Any civil proceedings against the State or any person inrespect of anything done in pursuance of this Act shall beinstituted within twelve months after the cause of action arose,and notice in writing of any such proceedings and the cause thereofshall be given to the defendant not less than one month before itis instituted: provided that the Minister may at any time waivecompliance with the provisions of this subsection.’
[16]It is clear from the reading of s 39 of the Police Act thata proper and timeous notice of intention to bring proceedings is apre- condition for the institution of a civil action under thePolice Act. The question that would arise from the reading of thissection would point to the purpose of this notice.
[17]The purpose of the notice in terms of s 39 of the Police Actwas expounded in a number of judgments in the Namibian and as wellas the South African jurisdictions. This is what the courts had tosay in the case of Minister van Polisie en Ander v Gamble en ‘nAnder[footnoteRef:3]: [3: 1979 (4) SA 759 (A) at 769H.]
’The object of the notice required under s 32(1) is, as had beensaid often enough, to inform the State sufficiently of the proposedclaim so as to enable it to investigate the matter. The notice neednot be as detailed as a pleading.’
[18]It has further been stated[footnoteRef:4]: [4: Groepe vMinister of Police, 1979 (4) SA 182 (E) at 184H.]
’The purpose for which the notice is required to be given is ofimportance. That purpose is to ensure that the State, or the personto be sued, receives warning of the contemplated action and isgiven sufficient information so as to enable it or him to ascertainthe facts and consider them.’
[19]The Section 32(1) notice referred to in the South Africancases is the equivalent of our s 39 notice. There is thus no doubtthat the same principles in South Africa would be applicable in ourlaw. Counsel for the defendant in his arguments further stated thatas a result of the plaintiff’s non-compliance with the provisionsof section 39 of the Police Act, the claim for constitutionaldamages can only be brought against the Prosecutor-General.
[20]Further support for the abovementioned is found in theDefendant’s heads of argument, where counsel for the defencesaid:
‘95. Section 39(1) requires the claimant to give notice of theproceedings to be instituted and the cause of such proceedings.
96. A consideration of the notice by the plaintiff makes itplain that the constitutional cause of action is not mentioned. Forthese reasons we submit that the plaintiff cannot pursue the claimagainst the first defendant.’[footnoteRef:5] [5: Para 95 of theDefendants heads of arguments.]
[21]It is clear that the defendants take issue with the factthat the s 39 notice sent to the Police did not include thealternative claim, thus the plaintiff does not have a basis onwhich to stand regarding this claim as there was no compliance withthe provisions of s 39 of the Act.
[22]In the case of Moroka v Minister van Polisie en ‘nAnder[footnoteRef:6], the same issue was canvassed and the undermentioned was the response of the court to the argument raised bythe defendant: [6: 1984 (2) SA 325 (W).]
’ . . . an amendment was allowed to the plaintiff’s particularsof claim changing certain detail concerning the assault which hadbeen notified in the s 32 (1) notice. It had been contended onbehalf of the defendant that the plaintiff was required to givefull particulars of its claim in the s 32(1) notice in the sameform as was now sought to be included in the amended pleading. TheCourt held that sufficient particularity had been given, as Iunderstand it, to investigate the matter. There was no prejudice tothe Minister in the proposed amendment, which in any event accordedwith the evidence that had already been given and against which noobjection had been raised’. (my emphasis)
[23]I now refer to paragraph 6 of this judgment in which I havestated that the alternative claim for constitutional damages wasbrought on the same facts as the principal claim. In paragraph 8 ofthis judgment, I have further stated that the alternative claim wasbrought by way of an amendment to the particulars of claim. Theabsence of the alternative claim in the s 39 notice, does not addanything to the investigation which would have had to be carriedout, and there was no likelihood of prejudice andsurprise.[footnoteRef:7] There is no difference between the causesof action, as they are based on the same facts. [7: Minister ofJustice, Police, and Prisons, Ciskei, and Another v Ntliziwana 1989(2) SA 549 (CkA).]
[24]The cause of action remained the same during the amendment,as the plaintiff only amplified legal issues applicable to thefacts and the circ*mstances upon which the claim is based. Itcannot be regarded as a new cause of action.
[25]Based on the abovementioned, I am of the opinion that thenotice given to the Police served its purpose and was sufficient toenable the defendant to investigate the claim. The defendant’sargument that the alternative claim can only lie against theProsecutor – General cannot stand and is dismissed.
[26] This brings me to the next assignment, which is to give abrief description of the facts which gave rise to the disputebetween the parties. In doing this, I will rely on the pleadingsand the evidence that was presented in court.
The pleadings
Particulars of claim and the defendant’s plea
[27] The plaintiff was arrested on 16 March 2000 by one or moremembers of the Namibian Police and detained for 4716 days withoutthe granting of bail.
[28] The cause of action is framed in the particulars of claimas follows:
A. PLAINTIFF’S PRINCIPAL CLAIM
Date of arrest
[29] Plaintiff claims that he was arrested on 16 March 2000 bymembers of the Namibian Police at Lishulu road or near KatimaMulilo in the Zambezi’[footnoteRef:8] [8: Pleadings bundle, p.3,para (7).]
[30]The date of arrest is denied and the defendants plead thatthe plaintiff was arrested on 29 April 2000 by members of theNamibian Police and not on 16 March 2000 as alleged by theplaintiff. The defendants further plead that the arrest was basedon reasonable suspicion that the plaintiff had committed theoffence of high treason and other offences referred to in annexure1 to the particulars of claim.[footnoteRef:9] [9: Pleadings bundlep. para 5.]
Instigation or setting the law in motion
[31] The plaintiff claims that members of the Namibian policewrongfully and maliciously set the law on motion by laying falsecharges against him. He claims that the charges were based on falseinformation given to the first and second defendant, in an attemptto implicate him of high treason and other serious charges. Theplaintiff further claims that in doing this, the members of theNamibian Police had no reasonable belied in the truth of theinformation they relied on.[footnoteRef:10] [10: Pleadings bundle,page 3, para 8 and 9.]
[32]The defendants admitted that the members of the Namibianpolice set the law in motion by instigating prosecution against theplaintiff for high treason and related charges. The defendantspleaded further that the members of the Namibian Policeinvestigated the 2 August 1999 attack and placed the witnessstatements and information they had obtained in the course of theinvestigation, before the second defendant to decide whethercriminal proceedings should be instituted against theplaintiff.[footnoteRef:11] [11: Pleadings bundle, page140, para6.4.]
Decision to prosecute
[33] In addition that plaintiff claims that the second defendantand or her employees wrongfully and maliciously set the law inmotion against him and continued to do so by prosecuting him ofhigh treason and other serious charges.[footnoteRef:12] [12:Pleadings bundle, page3, para 10.]
[34]The defendants pleaded that the second defendant decided inaccordance with the powers, in terms of Art 88 of the NamibianConstitution, after an objective consideration of the statementsand other relevant evidence relating to the attack on 2 August1999, to indict the plaintiff on high treason and the chargescontained in Annexure ‘1’.
Information on which the decision to prosecute is based
[35] The plaintiff further claimed that when the seconddefendant and or her employees set the law in motion or continuedwith his prosecution, they have done so without having sufficientinformation at their disposal, which could substantiate the chargespreferred against him. And that the second defendant have done sowithout having any reasonable belief in the truth of theinformation, which could implicate the plaintiff of high treasonand the commission of other serious charges.’[footnoteRef:13] [13:Pleadings bundle, p.4.para 10.1 and 10.2.]
[36]The defendants plead that the evidence collected against theplaintiff, provided sufficient grounds for the members of the firstdefendant to hold a reasonable belief that the plaintiff committedthe offences contained in Annexure ‘1’. The second defendant pleadsthat, based on the available evidence which included witnessstatements and other evidence relating to the attack, seconddefendant had the reasonable grounds to believe, on a prima faciebasis, that the plaintiff committed the offences contained inAnnexure ‘1’, or that responsibility could be attributed to theplaintiff on the doctrine of common purpose andconspiracy.[footnoteRef:14] [14: Pleadings bundle. P152.para10.]
[37]The under mentioned alternative claim of maliciousprosecution set out under paragraph 10 has been introduced by wayof an amendment to the plaintiff’s particulars of claim.
Continuation of prosecution
[38] The plaintiff claims that the second defendant and or heremployees wrongfully and maliciously continued to prosecute himfrom March 2006 and or November 2011 for high treason and othercrimes as set out in the indictment.
[39] The plaintiff claims that when the second defendant and orher employee continued to prosecute him, the testimonies of allwitnesses who testified against him and all the evidence that couldhave implicated him was led by March 2006 and or November 2011. Hestates that despite this fact, the second defendant or heremployees continued to prosecute him.
[40] The alleged continuation of the prosecution, according tothe plaintiff was without reasonable and probable cause and itcontinued in circ*mstances where:
39.1 The second defendant and or her employee could invoke theprovisions of section 6 of the Criminal ProcedureAct[footnoteRef:15] and stopped the proceedings; or [15: 51 of1977]
39.2 could have closed the state’s case and requested the courtfor the plaintiff to be discharged or the release from prosecutionat the end of March 2006 and or November 2011 or within areasonable time thereafter, in order to avoid violation of theplaintiff’s constitutional rights.[footnoteRef:16] [16: Pleadingsbundle, p.4 and 5, par 10A.3 (a-c). ]
[41]The defendant pleaded that the alternative claim based onthe conduct and the omission by second defendant has no foundationin law. The second defendant states that as from March 2006,neither second defendant nor her employees knew that all theevidence that could implicate plaintiff had been presented and thatall witnesses that could implicate the plaintiff had completedtheir testimony.
[42]Second defendant further pleads that she could not stop theprosecution against the plaintiff; neither could she close thestate’s case against the plaintiff from March 2006 nor at anytimethereafter other than on 07 February 2012, for the reasons listedhereunder.
41.1 Second defendant was not in a position to know whether allthe evidence which could implicate the plaintiff was led or whetherall the witnesses have completed their testimony.
41.2 The employees of the second defendant did not do anappraisal of the evidence continuously during the course of thecriminal trial. The reason for this was that it was humanelyimpossible, considering the number of witnesses that testified thenumber of accused persons before the court and the complexity ofthe matter.
41.3 The second defendant claim that it would have beenprejudicial to the State’s case, because of the fact that witnessescould implicate accused persons they did not refer to in theirwritten statements. And also because there was a possibility thatwitnesses called after March 2006 could implicate theplaintiff.
41.4 The second defendant was of the view that they haveestablished common purpose and conspiracy from the availablewitness statements and the evidence presented in court. And alsobecause there was a possibility that the state’s case could bestrengthened by the defence case.
41.5 Second defendant’s employees have done an appraisal of theevidence in November 2010 before the close of the State’s case,during which the police was requested to carry out a furtherinvestigation with respect to all the accused persons. Furtherevidence was gathered by the Police and the defence objected to thenew evidence and the court sustained the objection of the defenceon 17 February 2011.’[footnoteRef:17] [17: Pleadings bundle,p.153-154, para 10.]
[43]Further to the abovementioned the second defendant pleadsthat the plaintiff had a remedy in terms of Art 12(1) (b) of theNamibian Constitution, to move for his release from prosecution anddetention by November 2007 or any time thereafter.
Separation of trials
[44]I must immediately mention that after further evidence waselicited during the cross-examination of Mr Taswald July; plaintifffiled an application for amendment of the particulars of claim tointroduce new sub-paragraphs 10.3 and 10.3A.3 (d). The courtexercising, its judicial discretion, granted the application andthe amendment is noted hereunder:
‘10.3
10A.3 (d) Further alternatively, reasonably ought to haveseparated the trials of the accused between the group of accusedreferred to by the second defendant and/or her employees as the“attackers” and the further group identified by the seconddefendant and/or her employees as the “ leadership and/or supportgroup”, the plaintiff being in the latter group, which would haveresulted in the closing of the State’s case against the plaintiffat a much earlier date than February 2013 and the consequentdischarge of the plaintiff under section 174 of the CriminalProcedure Act, No.51 of 1977 at a much earlierdate’.[footnoteRef:18] [18: Plaintiffs Heads of Argument, p50-54.Para130-142.]
[45]The defendants, in response to this new amendment, informedthe court that the plaintiff was legally represented and had theright in law to apply for the separation of trials, if he had abasis for doing so. The defendants further contended that theplaintiff did not give any evidence as to why he did not apply forsuch separation. The defendant further argued that it would havebeen difficult to separate the trial, where the offences werecommitted pursuant to common purpose and conspiracy as alleged bythe state.[footnoteRef:19] [19: Defendant’s supplementary Heads ofArgument, p 8 and 9, para 19-23.]
Continued detention and trial within a reasonable time
[46]I will now continue to refer to the remaining paragraphs ofrelevance in the particulars of claim:
[47] The plaintiff claimed that he was prosecuted and tried forhigh treason and other crimes in the Magistrate’s Court and HighCourt of Namibia and as a result, detained at different Policestations and Prisons at different occasions[footnoteRef:20]. [20:Pleadings bundle. 5 and 6,para 11 ]
[48] The plaintiff remained in custody from 16 March 2000 until11 February 2013, until he was found not guilty of the chargesagainst him and released. The plaintiff alleged that he wasdetained for 4716 days in total.
[49] The plaintiff further claimed that as a result of theaforementioned, the second defendant or her employees violated theconstitutional right to a fair trial within a reasonable time asprovided for in Article 12 (1) (b) of the Namibian Constitution andthat the alleged violation warrants a claim for damages ascontemplated by Article 25(3) or Article 25(4) of the NamibianConstitution.[footnoteRef:21] [21: Pleadings bundle, p.5 and 6 para11-13.]
[50]The defendants admit that the plaintiff was arrested on 29April 2000 and that he was detained at Grootfontein Prison from 29April to 5 May 2000 and that the plaintiff was further detained atWindhoek Central Prison from 25 October 2005 to 11 February 2013.The plaintiff appeared and was tried in the Magistrate’s Court andthe High Court of Namibia.[footnoteRef:22] [22: Pleadings bundlep.155-156,para 11-13.]
[51]The defendants plead that the plaintiff does not have aclaim in law against the defendants in respect of the period ittook to finalize the trial, in circ*mstances where the courtexercised its discretion in terms of s 68 of the Criminal ProcedureAct.
[52]Defendants further deny that the trial did not take placewithin a reasonable time, if regard is had to the number of accusedpersons before the court, the complexity of the case which resultedin numerous applications, necessary postponements, theuncooperative attitude of the plaintiff, logistical challengesrelating to securing the attendance of witnesses at court and manyother factors.
[53]The second defendant further pleads that if it is found thatthe trial did not take place within a reasonable time, it is deniedthat the second defendant was solely responsible for any delaysthat occurred during the conduct of the criminal trial. The seconddefendant pleaded that the plaintiff was also responsible for suchdelays.
Violation of Article 12(1) (b) of the Namibian Constitution
[54] As stated earlier in the opening paragraphs of thisjudgment, the constitutional claim for damages will only beinstituted in the event that the court finds that the plaintiff’sclaims are not adequately covered by the common law.
[55] The plaintiff claims that the violation of hisconstitutional rights guaranteed under Articles 7,8,11,12,13,16,19and 21 of the Constitution was occasioned by the arrest of theplaintiff by the employees of the first defendant and subsequentdetention and prosecution and undue delay of the trial by theemployees of the second defendant. Plaintiff claims that as aresult of this violation of his constitutional rights, he sufferedloss and damages and that he is entitled of an award in terms ofArticle 25(3) and Article 25(4) of the NamibianConstitution.[footnoteRef:23] [23: Pleadings bundle.p9-11, para17-23.]
[56]The defendants deny that a violation of Art 12 (1) (b) isactionable in terms of Art 25(3) and 25(4) of the Constitution.They argued that Article 12 (1) (b) has its own remedy where atrial does not take place within a reasonable time, namely that itentitles the accused to apply for his release. The defendantsargues that the plaintiff failed to apply for his release on thatbasis, and an award for damages would be inappropriate, even if thecourt would find that the trial had not taken place within areasonable time.[footnoteRef:24] [24: Pleadings bundle, p 157-158,para17-22.]
The Evidence
[57]The plaintiff, Mr Richwell Mahupelo testified on his ownbehalf at the trial. Advocate Walters, gave evidence after he wassubpoenaed on behalf of the plaintiff. The defendants, for theirpart, called Detective Chief Inspector Evans Simasiku, a member ofthe investigation team in the treason trial, to testify on theirbehalf. They also called Mr. Taswald July, based on his involvementas part of the prosecution team in the treason trial.
[58]A number of witness statements and exhibits were handed inat court during the course of the criminal trial. The witnessstatements that were referred to form part of the docket in respectof the charges brought against the plaintiff.
[59]Having accepted the onus to begin and prove his case, theplaintiff testified in support of his claim. Salient portions ofhis evidence are captured below.
Evidence of Richwell Kulesesa Mahupelo
[60]The plaintiff stated that he was 57 years old when hetestified, and 40 years of age at the time of his arrest on 16March 2000. He was married at the time of the arrest and had a son.When he was arrested, he was travelling in a motor vehicle drivenby Aggrey Simasilu Mwamba, who ran a taxi business in KatimaMulilo. He was on his way to Sangwati area, Samudono Village wherehis wife resided. He was arrested by members of the Special FieldForce and the Namibian army. There was a third person in thevehicle, whom he later came to know as Bennet Mutuso.
[61]At the time of his arrest, he was ordered out of the motorvehicle, told to lie on the ground and was blindfolded with his ownshirt. He later found himself at the Katima Mulilo Police Station.The plaintiff testified that he was diabetic and was denied to takehis medication. He was given no food and water and was told torelieve himself, where he was.
[62]On 18 March 2000, he was taken to Grootfontein Army base. Hewas kept there for one month and 18 days. On 29 April 2000, he washanded over to the Namibian Police. He was thereafter taken toGrootfontein prison and appeared in the Grootfontein Magistrate’sCourt on 02 May 2000 for the first time since his arrest.
[63]After his appearance, the plaintiff was taken to Olunoprison, and detained there until he was taken to a WindhoekHospital on 23 October 2000 because of his diabetes. He wastransferred to Grootfontein until October 2005 when the matter wastransferred to Windhoek.
[64]The plaintiff further testified that he remained in custodyuntil 11 February 2013, when he was released following a successfulapplication in terms of s 174 of the Criminal Procedure Act by HisLordship Mr. Justice Hoff.
[65]The Plaintiff testified that he did not apply for bailduring his incarceration. He indicated that he could not afford topay for a lawyer to bring a bail application. He also did not applyfor bail at a later stage as his co-accused who applied for bailwas unsuccessful, due to the serious nature of the charges.
[66]The plaintiff further testified that he was married at thetime of the arrest but his wife left while he was in prison. Hisson did not finish school because there was no financial andmaterial support at the time.
[67]He testified that he never took part in any meeting whichplanned to secede the Caprivi from the rest of Namibia. Theplaintiff referred to a number of witness statements provided bythe Defendants as statements which were used to formulate a caseagainst him.
[68]These witness statements referred to were made by thefollowing witnesses:
(a) Brendan Machinda Luyanda[footnoteRef:25] [25: Exhibit A tothe record of proceedings.]
[69]He referred to the statement of Brendan Machinda Luyandamade on 13 June 2000 in which the witness refers to a conversationhe had with me. The plaintiff commented by saying that he was notpresent when the conversations were made between Mutuso and Luyandaand denies that he was actively assisting anyone who was a memberof the Caprivi Liberation Army (CLA) rebels in carrying out anylawful activities. He further denied that he influenced anyone inassociation with the aims and objectives of the CLA in the Capriviregion. He indicated that this statement could not be the basis ofhis arrest as it was made after he was arrested.
(b) Sergeant Evans Simasiku[footnoteRef:26] [26: Exhibit B tothe record of proceedings.]
[70]The plaintiff further referred to the statement of SergeantEvans Simasiku. He admits having been asked to identify a pair ofshoes which is part of this statement, but cannot see how thisstatement can serve as a basis for his arrest, detention and trialof over 277 charges.
(c) Given Earthquake Tubaleye[footnoteRef:27] [27: Exhibit D andE to the record of proceedings.]
[71]He further referred to the statement of Given EarthquakeTubaleye which was made on 18th March 2000. The plaintiff indicatedthat this statement could also not form the basis of his arrest asit was made a few days after his arrest and also because thisstatement refers to Shaini Tubaguza as the person from which thegoods had been collected and does not relate to him. GivenEarthquake Tubaleye made a further statement on 03 May 2002 inwhich he denies the allegation concerning him as this could alsonot be the basis for his arrest and subsequent detention withoutappearing in court.
(d) Malilo Kenneth Tubakunge[footnoteRef:28] [28: Exhibit F andG to the record of proceedings.]
[72]The plaintiff confirmed the content of the statement made byMalilo Kenneth Tubakunge. This statement referred to the allegationthat the plaintiff had a relationship with Bennet Mutuso andindicated that Bennet Mutuso did not come to visit theplaintiff.
[73]This statement according to the plaintiff’s testimony showsa variance with the version made by Tubeleya, yet the members ofthe first defendant chose to investigate in relation to aspectswhich implicated the plaintiff. The plaintiff remarked further thatif the members of the first defendant investigated more fairly,they would have known that he is innocent of the charges.
[74]The plaintiff further testified that Tubakunge made afurther statement on 10 August 2001. In this statement, Tubakungestated that the plaintiff is related to Aggry Mwamba
(e) Fanuel Kandela Mwambwa[footnoteRef:29] [29: Exhibit H to therecord of proceedings.]
[75]The plaintiff confirms the content of the statement made byFanuel Mwambwa and agreed that he was arrested whilst in a taxidriven by Aggrey Mwamba and paid him N$200 to be transported. Theplaintiff further confirmed that Aggrey Mwambwa took anotherpassenger in Katima Mulilo, and he later came to know him as BennetMutuso.
[76]The plaintiff referred to the second statement of FanuelKandela Mwambwa and confirms its content, but further added that hepaid to be transported by Aggrey Simasiku Mwambwa on the date ofhis arrest.
(f) Highness Chakusiya Lubinda[footnoteRef:30] [30: Exhibit J tothe record of proceedings.]
[77]The plaintiff testified that Highness Chakusiya Lubinda washis customary law wife, who left him whilst he was in prison. Shemade a statement on 12 July 2001 and she testified against him inthe criminal trial. He further testified that this statement couldnot be the basis for his arrest and subsequent trial on 277charges.
(g) Hamlet Muzwaki[footnoteRef:31] [31: Exhibit K to the recordof proceedings.]
[78]The plaintiff referred to the statement of Hamlet Muzwakiwhich was made on 11 May 2000, after his arrest. In this statementthe plaintiff indicated that he was implicated for supplying foodto the rebels. The plaintiff denied this allegation and furtherstated that it was strange that he is linked with the Caprivirebellion after it occurred in August 1999.
(h) Sinjabaa Hobby Habaini[footnoteRef:32] [32: Exhibit M to therecord of proceedings and page 203-205, para 27 -31 of thepleadings bundle.]
[79]The plaintiff testified about the statement Habaini made on16 February 2003 and indicated that he was already three years incustody when this statement was made. The plaintiff said that hecould not explain why this statement was not made before hisarrest.
[80]The plaintiff testified and denied that he was ever involvedin a conversation with Habaini as alleged by him in his statement.The plaintiff justified his denial by saying that he was alreadyarrested mid March 2000 and could thus not be seen with Habaini inApril 2000. The plaintiff further denied the statement in so far asit implicates him having been involved with Bennet Mutuso.
(i) Major General Shali[footnoteRef:33] [33: Exhibit N to therecord of proceedings and page 205, para (32-33) of the pleadingsbundle.]
[81]The plaintiff testified that he considered the statement ofMajor General Shali and was advised that it consist of hearsay. Theplaintiff admits that he was unlawfully arrested whilst on his wayto his village. He further testified that he paid Aggrey MwambaN$200 for the trip. The plaintiff said that he did not know BennetMutuso and had no knowledge of what he was carrying with him as hehad no association with him.
[82]The plaintiff further referred to the occurrence book whichwas disclosed and denied that he was arrested on 29 April 2000 asalleged. His evidence was that he was arrested and detainedunlawfully as from 16 March 2000 up to the date of his courtappearance on 02nd of May 2000. He further stressed that hisdetention was unlawful up to the time he appeared in court.
[83]The plaintiff further pointed out that only four of thepeople who gave statements to implicate him in the commission ofthe offence testified against him in the trial and three of themcould not identify him in court. The people who testified againsthim are Hamlet Muzwaki, Given Earthquake Tubaleye, Hobby SinyabataHabaini and Judith Lubinda.
[84]In concluding his testimony, the plaintiff made it clearthat the members of the first and third defendant arrested himwrongfully without a warrant and detained him unlawfully form 16March up to 02 May 2000. The plaintiff testified that this amountedto a gross violation of his constitutional rights.
[85]The plaintiff further added that the members of the firstand third defendants assaulted him and subjected him to humiliatingand degrading conduct in an attempt to extract a statement in whichhe had to implicate himself.
[86]Regarding the conduct of the second defendant, the plaintiffconcluded his testimony by saying that the office of the seconddefendant did not have sufficient information at its disposal,which substantiated the 277 charges and consequently justified hisprosecution. He further stated that the second defendant ought tohave known at the end of March 2006 that there would be no furtherwitnesses available that could implicate him in the commission ofthe offences. Despite knowing this, he concluded, the seconddefendant prosecuted him beyond November 2011, when the lastevidence had been tendered which concerned him.
[87]The cross-examination[footnoteRef:34] of the plaintiff bythe defendants’ counsel, centred on the general and specificevidence and this is a summary of the information: [34: Transcribedrecord of proceedings. 102 -139]
‘86.1It was put to the plaintiff that he had a general complaintregarding the witness statements, that his complaint is most ofthese statements were made long after he was arrested. TheInspector would tell the court that they were collectinginformation long before the plaintiff’s arrest and this informationimplicated him that he was supplying food to the rebels. Theplaintiff said it was total lies.
86.2A question was put to the plaintiff regarding the content ofthe witness statement by Mr. Given Earthquake Tubelya, which was aconfirmatory statement made in support of the information receivedfrom the informers. The plaintiff said that the content of thisstatement was based on lies.
86.3A number of questions were put to the plaintiff on theaspect of the general evidence relating to the planning andsubsequent attack of 2 August 1999, and the plaintiff informed thecourt that he heard about the attack on the radio, but he does notcarry personal knowledge of the information.
86.4The plaintiff was asked about his connection with BennetMutuso and he denied having any relationship with him or beinginvolved with him, but confirms that he was his co-accused in thetreason trial, and he heard that he was sentenced for High treasonand other charges. Plaintiff, under cross-examination denied thecontents of witness statements that linked him with Bennet Mutusoand stated that they were based on lies.
86.5Plaintiff was asked why he never applied for bail, and heresponded by saying that he did not have the money to pay for alawyer or if granted bail, the bail amount required and furtherbecause his co-accused unsuccessfully applied for bail.
86.6Plaintiff was further asked about his relationship withJudith Lubinda, who made a statement, Exhibit J to the record.Plaintiff confirmed that the said witness was his wife and that sheleft him whilst he was in custody. He further stated the content ofher witness statement was based on false evidence. The plaintifffurther informed the court that Judith Lubinda testified againsthim in the trial, but failed to identify him.
86.7The plaintiff was further invited to give an explanation asto why he said the evidence in the witness statements was based onlies. The plaintiff informed the court that all the statements werebased on lies and fabricated information. He was not there when thestatements were made and could not say why the witnesses lied underoath or why the prosecution could not perceive that thesestatements were based on lies.
86.8Asked about his arrest and the fact that Mr. Bennet Mutusowas also a co- passenger in that vehicle, the plaintiff admittedthat Bennet Mutuso was a co- passenger in the taxi of Agri Mwamba,which he paid N$ 200 to take him to Sikubi area. The Plaintiff saidhe did not have anything to do with the fact that Bennet Mutusopaid Agri Mwamba and about the luggage he carried, as it hadnothing to do with him.
86.9The plaintiff was further invited to respond to theallegation by Mr. Muzwaki, that he was very much active in takingfood to the rebels. The plaintiff said that a lot of lies andfabrications had been made, and that he does not know Muzwaki, Heonly saw him in the witness box when he came to testify.
86.10Asked about the allegation made by Mr. Haibani that he alsosupplied food to the rebels, the plaintiff said that Mr. Haibani isa liar and that he failed to identify him in court, after he, Mr.Haibani testified against the plaintiff.
86.11The plaintiff was asked, whether the matter was sometimespostponed by the presiding judge and he responded in theaffirmative.’
Evidence of Advocate John Walters
[88]As indicated above, Advocate Walters testified on behalf ofthe plaintiff on subpoena. His evidence can be summarised asfollows:
‘87.1He testified that he is currently the Ombudsman of Namibiafor the past 12 years. He also informed the court that he is awareof the Caprivi treason trial as he acted as the Prosecutor-Generalof Namibia from 01 December 2002 up to the end of December 2013. Heindicated that he was a career prosecutor since January 1981 up toDecember 2002, and that he has 11 years’ experience as aprosecutor.
87.2Asked about the Constitutional role of theProsecutor-General and the staff, he answered by saying that theyoccupy an important position in a constitutional democracy likeNamibia. He further testified that they derive their powers fromArt 88 of the Namibian Constitution and more specifically Article88 (1) and (2) thereof. Advocate Walters specifically referred tothe delegation of power in which the Prosecutor-General isempowered to delegate the power to prosecute to various prosecutorsprosecuting in the courts of Namibia.
87.3Advocate Walters pointed out in his testimony that the powerderived from the constitution, requires of the Prosecutor-Generalto execute their prosecutorial functions independently and withoutfear, favour or prejudice.
87.4He was further asked to elaborate on the statement that theprosecution is dominus litis. He testified that in his view dominuslitis means that the prosecution is to control the proceedings, butthat control is subject to the constitution and the law and it alsomeans that you should prosecute without fear or favour. He furtherstated that the prosecution would not be held in secrecy, as theprosecutor has the duty to reveal if there is any evidence whichfavours the accused. Prosecutors should be transparent and shouldexercise their powers lawfully and must not act arbitrarily, headded.
87.5Various statements were put to Advocate Walters regardingthe duties of a prosecutor and the under mentioned were hisresponses to the statements by the counsel for the plaintiff.
87.5.1The duty to pay attention to the police docket- underlyingthis duty was to look carefully at the evidence as this was thesource of information of evidence from which the indictment has tobe drawn up. The dockets should be disclosed to the defence counselto enable them to prepare. Contradictory statements should bepointed out because they render a prosecution impossible, and ifthere is a need, the matter should be withdrawn. If there isinsufficient evidence against an accused before plea, the caseshould be withdrawn and sent back for further investigations. Ifyou realise there is insufficient evidence after the plea, theproceedings have to be stopped.[footnoteRef:35] The docket will besent to the Prosecutor-General to ask for permission to stop theproceedings. He further added that the prosecutor dealing with thedocket must be active in doing this. It would be expected ofprosecutors in complex and lengthy trials to review the docket fromtime to time and to inform the Prosecutor General about changesthat occur in the evidence, which will render the prosecution of anaccused unnecessary. [35: Page 152- 153 of the record ofproceedings.]
87.5.2Duty to be aware of constitutional provisions - AdvocateWalters further testified that prosecutors should be aware of theconstitutional provisions of a fair trial. Prosecutors should bemindful of arbitrary arrest and detention. [footnoteRef:36] [36:Page 154-155 of the record of proceedings.]
87.5.3Duty not to obtain convictions, but to see to it thatjustice is done - Advocate Walters said that there is no duty towin the match, but one must play a fair game. A prosecutor must actin a manner which is responsible and fair towards theaccused.[footnoteRef:37] [37: Page 155- 156 of the record ofproceedings.]
87.5.4Duty that all relevant information must be placed beforethe court – Advocate Walters testified this that it is the ethicalduty of both the prosecution and defence counsel. This duty, heagrees, is based on the ground that the prosecution has all theresources of the state including finances at itsdisposal.[footnoteRef:38] [38: Page 156 of the record ofproceedings.]
87.6A further aspect on which Advocate Walters testified was hisrole in the Caprivi Treason trial. He pointed out that he wasserving as the Acting Prosecutor General when the 2 August attackstook place. He testified that a state of emergency was declared. Healso confirmed that an indictment was prepared by the Prosecutionin 2001 and a further indictment with additional charges was signedby him.[footnoteRef:39] [39: Page 161-162 of the record ofproceedings.]
87.7On the point of the indictment, Advocate Walters testifiedthat it involved 278 charges of serious crimes of high treason,public violence, murder, unlawful possession of weapons, attemptedmurder, malicious damage to property and theft. The accused werearraigned on all those charges.[footnoteRef:40] [40: Page 162 ofthe record of proceedings.]
87.8Advocate Walters admitted that if he was given anopportunity he would have come up with another decision, realisingit took ten years to finalize the matter. He also added that hewould have dropped the less serious charges and only proceeded onthe more serious once. He added further that a separation oftrials, would have been one of the options to beconsidered.[footnoteRef:41] To this he added that it was on afterthought he had after the fact. [41: Page 163 of the record ofproceedings.]
87.10Advocate Walters also indicated that he signed theindictment, and after he was appointed as Acting-ProsecutorGeneral, the prosecution team that dealt with the matter resignedand he had to put together a new team, which consisted of twomembers, Advocate January, and Mr.Taswald July. He further addedthat it crossed his mind to increase the number of Prosecutors, butthey did not have enough prosecutors at that time.
87.11Advocate Walters further testified that he left theposition as acting Prosecutor-General during the start of the trialand joined the prosecution team at a later stage as a consultantfor a period of six months on the request of the PermanentSecretary at the Ministry of Justice. At that stage he workedclosely with the prosecutors at their base in Grootfontein.
87.12When asked by the plaintiff’s counsel about the hierarchyof decision- making as far as prosecutorial decisions areconcerned, he had the following to say; the docket was assigned toa particular prosecutor to peruse it to see whether there issufficient evidence to proceed with the matter. That prosecutorwould draft the indictment and indicate in which court the accusedwould be arraigned, but the ultimate decision to prosecute lay withthe Prosecutor General.[footnoteRef:42] [42: Page 166 of the recordof proceedings.]
87.13Advocate Walters further informed the court that the leadProsecutor in the Caprivi Treason trial was Mr. July and that hewas working with Mr. January and Mrs Barnard. He further admittedthat it was impossible for him to personally peruse the volumes ofstatements in the Police docket, but that he read the indictmentand he picked up that a Zambian National was indicted and he theninformed the prosecution team to have a further look at theindictment and the evidence available. Advocate Walters indicatedthat he informed the prosecution team to peruse the evidence in thedocket and if there was no evidence against any accused, that aninstruction to withdraw the matter be made.[footnoteRef:43] [43:Page 166-167 of the record of proceedings.]
87.14When asked to elaborate on the control of the docket oncethe investigating officers have handed the docket over to theprosecutor, Advocate Walters testified that the docket remains theresponsibility of the Prosecutor. If there is a need for furtherevidence to be obtained, the prosecutor would give furtherinstructions to the investigating officer to obtain moreevidence.[footnoteRef:44] [44: Page 171 of the record ofproceedings.]
87.15Advocate Walters further testified about the responsibilityof the prosecutor in the event that the prosecution does not have areasonable belief in the truth of the information after consultingwith witnesses. On this aspect he commented that if this isrevealed during consultation, the witness would not be called butmade available to the defence to call as a witness.[footnoteRef:45][45: Page 173- 174 of the record of proceedings.]
87.16On the aspect of Art 12, which provides that a trial shouldtake place within a reasonable time, Advocate Walters said that ifhe is the, prosecutor he makes sure that a trial takes place withina reasonable time, by giving instructions to the investigatingofficer to respond to the request for further investigations withina specific period of time. He also acknowledged the fact that thecirc*mstances may differ in the case of a long trial, as there aremany factors which can influence the duration of the case. Hespecifically referred to the Caprivi Treason trial, whereunforeseen things happened, that prompted the defence andprosecution to request for postponements.’[footnoteRef:46] [46:Page 175 of the record of proceedings.]
Defence Case
Evidence of Sergeant Simasiku
[89]Sergeant Simasiku was the first defence witness in thetrial. He was a police officer employed by the Ministry of Safetyand Security as a Detective Chief Inspector and was stationed atthe High Treason and Counter Terrorism Unit in Windhoek.
The following is the evidence by Sergeant Simasiku:
‘88.1That he was one of the investigating officers appointed tothe High Treason Unit. He also informed the court that he was oneof 22 investigating officers appointed to investigate the matter inwhich the plaintiff appeared.
88.2He indicated during his testimony that his engagement withthe Caprivi Treason trial started on 02 August 1999, after theattack on government installations and other installations atKatima Mulilo in the Caprivi Region. At that stage, SergeantSimasiku was a member of the Criminal Investigation Unit in theCaprivi Region and held the rank of Detective Sergeant.
88.3After the attacks of 2 August, the investigation teamlaunched an operation and came up with strategies to investigatethe high treason matter in order to stabilize the securitysituation in the region. They reinforced their patrols through theregion. During this time, they received information that CapriviLiberation Army rebels were moving throughout the region. Theinformers were sent back to the villages to verify the informationthat was in the investigators’ possession and to obtain newinformation.
88.4During this process the investigators received informationthat after the said attacks, the plaintiff was buying food toassist the rebels that were still at large after the 2 Augustattacks. According to the testimony of Sergeant Simasiku, thisinformation was supported by the statement of Given EarthquakeZikinyeho. He indicated that the plaintiff was giving food to CLArebels. The food was transported with a sledge to the borders ofNamibia and Zambia.
88.5The witness further informed the court, that because therewas information that the CLA rebel commander Bennet Mutusotravelled to Zambia, they had a fear that the rebels might escapeto avoid arrest; they closely monitored his movement and also thatof the plaintiff.
88.6The witness informed the court that the plaintiff wasarrested on 16 March 2000, but before his arrest he was seen inKatima Mulilo Town buying food and got onto the vehicle of AgreySimasiku Mwamba. They drove to Sikubi area and were joined byBennet Mutuso. The vehicle drove to the Liansulu area.
88.7Based on this information, they put up an emergency roadblock at Lizauli area where the plaintiff was arrested togetherwith Agrey Mwamba and Bennet Mutuso. An AK 47 rifle and food werefound in the vehicle in which they were travelling. They wereapprehended by armed forces and brought to Grootfontein anddetained at the military base until 01 may 2000 and they wereescorted to Oluno prison.
88.8The witness also informed the court that the plaintiff isknown by the names Richwell Shaini Mahupelo in the Caprivi regionand this was confirmed by the plaintiff undercross-examination.
88.9The witness further stated that he interrogated theplaintiff regarding his involvement with Bennet Mutuso at Olunoprison and that he indicated that Bennet Mutuso used to visit himat his house. The plaintiff denied this under cross-examination andsaid that those are lies and that he was not interrogated by thewitness and the witness did not ask anything. He further testifiedthat further witness statements were obtained by police officialsafter the plaintiff’s arrest as part of the on-goinginvestigations.’
Evidence of Mr Taswald July
[90]Mr Taswald July testified and informed the court that he wasthe Deputy-Prosecutor-General when the Caprivi Treason trialcommenced, but is no longer employed by the office of theProsecutor-General.
[91] He testified regarding his contribution in the formulationof the decision to prosecute and informed the court that he waspart of a team that consisted of Advocate January and AdvocateBarnard and they formulated the charges.
[92] Mr July further testified that a request for furtherparticulars by the accused persons on 6 May 2003 prompted a reviewof the charges against the plaintiff and the further particularswere given during September 2003.
[93] He pointed out that there was no objection by the plaintiffand his legal representative to the further particulars given bythe prosecution team and the plaintiff also did not tender a pleaexplanation in terms of section 115 of the Criminal Procedure Act51 of 1977.
[94] Mr July further added in his testimony, that theprosecution team considered the evidence against the plaintiffbased on the indictment signed in 2001, and the prosecution wassatisfied on a prima facie basis that the plaintiff committed theoffences alleged.
[95]The grounds for prosecuting the plaintiff according to MrJuly were based on the evidence in the police docket and theexhibits. He further added that the decision to prosecute was inline with the prosecutorial function in terms of Article 88 of theConstitution.
[96]According to Mr July, the following were the witnessstatements considered and they are stated in sequence as it wasdiscussed in his testimony.
a) Brendan Machinga Luyanda’s – Exhibit A
b) Detective Sergeant Evans Simasiku’s statement - Exhibit B
c) Given Earthquake – Exhibit D and E
d) Malilo Kenneth Tubakunge’s – Exhibit F and G
e) Fanuel Kandela Mwamba’s – Exhibit H
f) Hamlet Muzwaki’s statement – Exhibit K
[97]Mr July testified further that, after the decision toprosecute the plaintiff was made, further information and witnessstatements were obtained implicating the plaintiff in thecommission of the crimes set out in Annexure 1. These statementsare listed hereunder:
g)Highness Chakusiya’s – Exhibit J
h)Sinjabata Hobby Habani – Exhibit M
i)Major General Marthin Shali – Exhibit N
[98]Mr July testified that the evidence contained in thesestatements established on a prima facie basis that the plaintiffsupported the rebels by transporting them and by providing food tothem. He further added that this conduct of the plaintiff showedhow he associated himself with the actions of those who had the aimof seceding the Caprivi from the Republic of Namibia.
‘
[99]The abovementioned according to Mr July was the basis forthe decision to prosecute the plaintiff.
[100]Mr July also testified about the discharge of the plaintiffin terms of s 174 of the Criminal Procedure Act. He confirmed hisevidence that the plaintiff was released in terms of s 174. This iswhat he had to say in his testimony:
‘55. The case against plaintiff failed not because of a lack ofreasonable and
probable cause when the prosecution was instituted against him,but because the
witnesses Hamlet Kachibolwe Muzwaki and Hobby Habaini Sinyabatawho in fact
gave testimony that implicated the plaintiff in the crimes inannexure 1, failed to
identify plaintiff. To this the Court said: “When she was askedto identify her former
husband in court, strangely, she stated that she would be unableto do so” since
long time has lapsed.’
[101]Mr July testified that there was no reason for the seconddefendant to maliciously prosecute the plaintiff as all decisionswere taken in good faith and based on an honest belief that therewas a prima facie case against the plaintiff.
[102] On the issue of the undue delay in prosecuting theplaintiff, Mr July had the following to say in his testimony:
‘57. The Caprivi treason trial was exceptional, and itsmagnitude unprecedented in the legal history of this country: 126accused persons were charged on 278 counts, most of them beingserious, based on the doctrine of common purpose/conspiracy, 379witnesses testified on behalf of the State and more than 900witness statements had to be considered. All this contributed tothe length of the duration of the trial.’[footnoteRef:47] [47:Pleadings bundle,p180,par 57]
[103]He further testified that most of the time leading up tothe commencement of the trial was taken up by pre –trialproceedings and bail and legal aid applications. A special courtwas established to deal with the case and it was scheduled tocommence on 6 May 2003, and they could not continue as theplaintiff and his co-accused filed applications for furtherparticulars and this was in respect of 122 accused persons. Theresponse was only granted during September 2003. The trial wasscheduled to start on 27 October 2003 and the plaintiff and hisco-accused gave notice that some accused intended to challenge thejurisdiction of the High Court to hear the matter. The High Court’sdecision was delivered and the state appealed and the Supreme Courtdelivered judgment on 21 July 2004.
[104] There were numerous other reasons for the delay and theyare quoted as follows:
‘67. Delays were caused by request for postponements for variousreasons at the instance of the State and the defence. Request forpostponements were made to the Court and carefully considered bythe court. Other delays were caused by witnesses who were collectedfrom villages and transported from Katima Mulilo to Grootfonteinand then later to Windhoek. At times witnesses were unavailable forvarious reasons; accused persons became sick and unable to attendproceedings; withdrawal of defence counsel and appointment of newcounsel who had to study the court record caused further delays;appointment of counsel for undefended accused persons; court recessand the hearing of the section 174 applications.’
[105]Mr July further added on the abovementioned reasons andtestified that there were numerous applications on questions of lawwhich needed extensive research and the consideration by the courtand some of these arguments raised by counsel could sometimes onlybe re solved by trial within a trial and it took time. High Courtproceedings were stayed sometimes to wait for the outcome ofappeals from the Supreme Court. Mr July further added upon that inan attempt to expedite the finalisation of the case, the statebrought an application to extend the court hours, which was opposedby all defence counsel.
[106]Another reason which further enhanced the delay accordingto Mr July’s testimony was the unforeseen motor vehicle accident inwhich one prosecutor lost her life and the two were criticallyinjured, leaving the investigating officers incapacitated.Furthermore witnessed died before the case could be finalized andothers fled to Botswana because of the fear of intimidation.
[107]Mr July concluded his testimony by denying that the Statewas guilty of wrongful delays on the basis of which plaintiff canclaim.
Law of Malicious Prosecution
[108]Much of the argument advanced by both sides centred on theclaim for malicious prosecution. It is thus dealt with first.
In Akuake v Jansen van Rensburg[footnoteRef:48] Damaseb JPstates the following at p.404F: [48: 2009 (1) NR 403 (HC).]
‘To succeed with a claim for malicious prosecution, a claimantmust allege and prove that:
(i) That the defendant actually instigated or instituted thecriminal proceedings;
(ii) Without reasonable and probable cause; and that
(iii) It was actuated by an indirect or improper motive (malice)and;
(iv) That the proceedings were terminated in his favour; andthat
(v) He suffered loss and damage.’
[109]The onus to prove these requirements rests on theplaintiff.[footnoteRef:49] The fourth and the fifth requirementsquoted above are common cause; the fifth requirement will be dealtwith should the matter proceed to the determination of quantum. Thefollowing requirements are in issue: [49: Akuake v Jansen VanRensburg 2009 (1) NR 403 HC para 3.]
108.1Whether the Namibian Police instigated or instituted thecriminal proceedings;
108.2If it is found that the Namibian Police instigated orinstituted the criminal proceedings, the question is whether theywere actuated by an indirect or improper motive and withoutreasonable and probable cause;
108.3Whether the Prosecutor General acted with malice andwithout reasonable and probable cause in prosecuting theplaintiff?
[110]The principal claim is thus brought against both the firstand second defendants based on malicious prosecution under thecommon law in respect of the period 16 March 2000 to the end ofMarch 2006, alternatively to the end of November2011.[footnoteRef:50] [50: Page 2 of Plaintiff’s heads ofarguments, para 5.]
Instigation or Institution of Proceedings
[111]The plaintiff must allege and prove that the firstdefendant instigated the proceedings, or that he or she set the lawin motion. That is, the first defendant actually instigated orinstituted them.
[112]In the matter of Minister of Justice and Others vMoleko[footnoteRef:51], this is what the court had to say withregard to the liability of the police: [51: 2008) 3 ALL SA 47(SCA),para11.]
‘With regard to the liability of the police, the question iswhether they did anything more than one would expect from a policeofficer in the circ*mstances, namely to give a fair and honeststatement of the relevant facts to the prosecutor, leaving it tothe latter to decide whether to prosecute or not.’ (myemphasis)
[113]The mere placing of information or facts before the police,as a result of which proceedings are instituted, isinsufficient.[footnoteRef:52] On the other hand, an informer whomakes a statement to the police to found the claim which iswillfully false in a material respect instigated a prosecution maybe held personally liable.[footnoteRef:53] [52: Akuake v Jansen VanRensburg para 4.] [53: Akuake supra.]
[114]Instigation will only be established, if the plaintiffproves (as alleged) that the police knowingly placed falseinformation before the Prosecutor-General, and that the plaintiffwas prosecuted as a result of such falseinformation.[footnoteRef:54] [54: Akuake supra]
[115]The defendants in their amended plea admitted that theNamibian Police set the law in motion by instigating theprosecution of the plaintiff. The defendants pleaded that theNamibian Police placed witness statements before the seconddefendant, who decided to prosecute the plaintiff.[footnoteRef:55][55: Pleadings record p.151, para 6]
[116]It is clear from the evidence of Detective Chief InspectorSimasiku that the Police acted on information they had receivedfrom informers that the plaintiff supported the CLA rebels withfood. Informers were instructed to follow up this information tosee whether by supporting them it holds truth. He further testifiedthat a roadblock was manned and the plaintiff was arrested in a carwith Bennet Mutuso and Agri Mwamba and food together with an AK 47rifle were found.
[117]He further testified that after the plaintiff was arrested,statements were obtained as part of the on-going Policeinvestigations in the case. According to him, these statements werehanded to the Prosecutor- General in order to make a decisionwhether criminal proceedings should be instituted against theplaintiff or not.
[118]Detective Inspector Simasiku testified that he had nothingto do with the decision to prosecute Mr Mahupelo – he merelyconducted the investigation and collected evidence. As far as hewas concerned, the decision to prosecute was ‘the prerogative ofthe Prosecutor General’.
[119]The Plaintiff, during cross-examination, could not give anexplanation for the allegations that the Police had falsifiedstatements. He informed the court that he knew nothing about it ashe was not present when the statements were taken.[footnoteRef:56][56: Transcribed record, p 133.]
[120]Based on the evaluation of the abovementioned law andfacts, it is clear that the plaintiff failed to prove that thePolice did anything more than place the available evidence beforethe Prosecutor-General, leaving it to the Prosecutor –General toindependently decide whether or not to prosecute or not.
[121]The claim for malicious prosecution against the Police thusfalters at the first hurdle and is thus dismissed.
[122]It follows that the remaining requirements are onlyrelevant insofar as they concern the potential liability of theProsecutor-General. Before I go into a discussion of the remainingrequirements regarding the liability of the Prosecutor-General, Ideem it necessary in the context of the matter that the court isfaced with, to give a brief overview of the role of the Prosecutor-General.
Constitutional Role of the Prosecutor- General
[123]In the case of Minister of Safety and Security and Anotherv Carmichele[footnoteRef:57] Harms JA held: [57: 2004 (3) SA 305(SCA) (2004) (2) BCLR 133 ;( 2003) 4 All SA 565.]
‘In determining the accountability of an official or member ofgovernment towards a plaintiff, it is necessary to have regard tohis or her specific statutory duties and to the nature of thefunction involved. It will seldom be that the merely incorrectexercise of discretion will be considered wrongful.’
[124]The office of the Prosecutor General in Namibia is aconstitutional establishment in terms of Art 88 of the NamibianConstitution, which provides:
‘[t]here shall be a Prosecutor- General appointed by thePresident on the recommendation of the Judicial ServiceCommission’.
[125]Under Art 88(2), the Prosecutor- General has thepowers:
(a) to prosecute, subject to the provisions of thisConstitution, in the name of the Republic of Namibia in criminalproceedings;( my emphasis)
(b) to prosecute and defend appeals in criminal proceedings inthe High Court and the Supreme Court;
(c) to perform all functions relating to the exercise of suchpowers;
(d) to delegate to other officials, subject to his or hercontrol and direction, authority to conduct criminal proceedings inany Court;( my emphasis)
(e) to perform all such other functions as may be assigned tohim or her in terms of any other law
[126]It is thus clear that the Prosecutor General deriveshis/her powers and legitimacy from the above constitutionalprovisions, which are complemented by the Criminal ProcedureAct.
[127]Section 2(1) of the Criminal Procedure Act[footnoteRef:58]gives the Prosecutor General the prerogative to institute criminalprosecutions over all offences that fall within the jurisdiction ofNamibian courts. All such prosecutions are to be instituted in thename of the state, save for private prosecutions as provided for ins 13 (1) of the Act. [58: 51 of 1977.]
[128]From the reading of s 6 of the Criminal ProcedureAct[footnoteRef:59], it is clear that the Prosecutor General haspowers to withdraw charges before the accused has pleaded, and tostop proceedings thereafter. A prosecution can only be stopped withthe written consent of the Prosecutor General or any other personauthorised to do so. [59: Supra.]
[129]The above provisions clearly indicate that the ProsecutorGeneral is supposed to be independent in every sense of the wordand not subject to outside influence. However, the provisions fallshort of setting out what the role of the Prosecutor Generalentails, and how its mandate should be performed.
[130]In the case of S v Mashinini and Another[footnoteRef:60]Mhlantla JA said: [60: (502/11) [2012] ZASCA 1; 2012 (1) SACR 604(SCA) (21 February 2012).]
‘It is well-known fact that the state is dominus litus. Afterthe Police have concluded their investigations, the docket is givento the prosecutor. He or she gains access to all documents andstatements in the docket. Based on this, he/she decides on whichcharge(s) to prefer against an accused person. The latter plays norole in this critical choice by the prosecutor.
When a prosecutor drafts the charge sheet or indictment of thecharges that the accused must face in Court -. . . . he isperforming an important public and administrative task which canhave very important consequences for the public at large andespecially for an accused’.
[131]There is clear support for above the statements in theevidence presented by Advocate Walters and Mr July. Both thesewitnesses showed to the court throughout their testimonies thatthey fully understand the constitutional role of the ProsecutorGeneral as outlined by the Namibian Constitution.
[132] In my view the Constitutional role of the Prosecutor-General in the process of making decisions to prosecute a person,is one of its’ core responsibilities. The decision to prosecute ornot to prosecute can have the most far-reaching consequences for anindividual. Even where an accused person is acquitted, theconsequences resulting from a prosecution can include loss ofreputation, disruption of personal relations, loss of employmentand financial expense, in addition to the anxiety and trauma causedby being charged with a criminal offence. A wrong decision toprosecute or, conversely, a wrong decision not to prosecute, bothtend to undermine the confidence of the community in the criminaljustice system.
[133] Prosecutorial discretion is a term of art. It doesnot simply refer to any discretionary decision made by aprosecutor. Prosecutorial discretion refers to the use ofthose powers that constitute the core of the Prosecutor- General’soffice and which are protected from the influence of improperpolitical and other vitiating factors by the principle ofindependence. It is therefore essential that the prosecutiondecision receives careful consideration. But, despite its importantconsequences for the individuals concerned, the decision is onewhich the prosecutor must make as objectively as possible.
[134] I am mindful of the fact that in performing their duties,prosecutors will deal with a large number of legal andadministrative aspects of their work and can be either routine, orcomplex and unusual. Despite the variety of arrangements inprosecutor’s offices, the public prosecutor plays a vital role inensuring due process and the rule of law as well as the respect forthe rights of all parties involved in the criminal justicesystem.
[135] It is a well-known fact that a prosecutor exercisesdiscretion on the basis of the information before him or her. Thiswould call upon a prosecutor to ensure that the general quality ofdecision- making and case preparation is of a high level, and thatdecisions are not susceptible to improper influence.
[136] Prosecutors should thus not initiate or continueproceedings when an impartial investigation shows the charge to beunfounded. When instituting or maintaining criminal proceedings,the Prosecutor should proceed and only when a case is well founded,upon evidence reasonably believed to be reliable and admissible,and should not continue with such proceedings in the absence ofsuch evidence. This is to be recognised by the common law principlethat there should be “reasonable and probable cause to believe thatthe accused is guilty of an offence before a prosecution isinitiated (or maintained) and the necessary constitutionalprotection afforded.
[137] I must note that courts are not eager to limit orinterfere with the legitimate exercise of prosecutorial authority.However a prosecuting authorities’ discretion to prosecute is notimmune from the scrutiny of a court which can intervene where it isalleged that such discretion is improperly exercised.
[138]I would now proceed and discuss the remaining requirementsregarding the liability of the Prosecutor General.
Reasonable and probable cause
[139]The plaintiff must allege and prove that the defendantinstituted the proceedings without reasonable and probable cause.Reasonable and probable cause means:
‘an honest belief in the guilt of the accused based upon a fullconviction, founded upon reasonable grounds, of the existence of astate of circ*mstances, which assuming them to be true, wouldreasonably lead any ordinary prudent and cautious man placed in theposition of the accuser, to the conclusion that the person chargedwas probably guilt of the crime imputed’.[footnoteRef:61] [61:Hicks v Faulkner 1878 8 QBD 167 at 171; Waterhouse v Shield 1924CPD 155 at 162.]
[140]The concept involves both subjective and objectiveelements. There must be both actual belief on the part of theprosecutor and the belief must be reasonable in the circ*mstances.A combination of these two tests means that the defendant must havesubjectively had an honest belief in the guilt of the plaintiff andsuch belief must also have been objectivelyreasonable.[footnoteRef:62] [62: Joubert v Nedbank Ltd 2011ZAECPECH 28 para 11.]
[141]In determining whether or not the decision by theProsecutor General to prosecute Mr Mahupelo amounted to maliciousprosecution, it must also be remembered that, in the relevantcharge sheet,[footnoteRef:63] the State alleged that Mr Mahupelohad acted with common purpose and was in involved in a conspiracy.[63: Annexure “1”.]
[142]As far as the liability of the second defendant, theGeneral-Prosecutor is concerned, Mr. July, the DeputyProsecutor-General in the office of the Prosecutor General inWindhoek, who took the ultimate decision to prosecute Mr Mahupelo,stated that he acted independently in line with his prosecutorialfunction set out in Art 88 of the Constitution.
[143]It is an undisputed fact that the plaintiff was arrested ata roadblock in a motor vehicle driven by Agri Mwamba and thatBennet Mutuso identified as a rebel leader was also a passenger andthat an AK 47 rifle was found in the vehicle.
[144]Plaintiff argued, in his written statement and during histestimony, that there was no reasonable basis for the employees ofthe second defendant to initiate proceedings against him. Hefurther argued that the office of the second defendant did not havesufficient information at its disposal which substantiated suchcharges or justified the prosecution of the plaintiff on suchcharges. And that the second defendant did not have any reasonablebelief in the truth of any information given to them which couldimplicate the plaintiff in the commission of high treason and otherserious crimes referred to in Annexure ‘1’.
[145]Mr July further testified that at the time he took thisdecision, he had before him the following documents:
(a) Evidence contained in the police docket and exhibits thatwere supplied to the prosecution by the Namibian Police;
(b) Witness statements made under oath by Brendan MachingaLuyanda,Detective Sergeant Simasiku, Given Earthquake, MaliloKenneth Tabukunge, Fanuel Kandela Mwamba, Hamlet Muzwaki.’
[146]Mr July testified that the evidence contained in thesestatements established on a prima facie basis that:
‘52.1The plaintiff held secessionist view.
52.2The plaintiff supported the rebels by transporting them andproviding them with food.
52.3The plaintiff advocates and support secession of the Caprivifrom Namibia;
52.4The plaintiff influenced, encouraged and recruited people tojoin the conspiracy to secede the Caprivi;
52.5The plaintiff owed allegiance to the Republic ofNamibia;
52.6The Plaintiff through his conduct associated himself withthe aims and/or actions of the rebels to secede the Caprivi formthe Republic of Namibia by violent means;
52.7The plaintiff failed, when the conspiracy to overthrow thegovernment of Namibia came to his knowledge, to report it to theauthorities and to provide any information that he had as hisdisposal concerning the events at Makanga Rebel base on 01 August1999and the attack on 02 August 1999.’
[147]According to Mr. July, he further indicated that thedecision to prosecute was based on the individual conduct of eachaccused and how it contributed either overtly or as part of acommon purpose or conspiracy. The evidence available against theplaintiff was the only yardstick used in deciding whether or not toprosecute the plaintiff. Mr July further testified that thenumerous charges brought against the plaintiff related to hisalleged involvement in the supply of food to the rebels who haveescaped in the bushes after the 2 August 1999 attacks.
[148]Under the probable cause requirement, as noted before, thefirst question is whether the second defendant subjectivelybelieved that he had probable cause to initiate the prosecution.This is unequivocally established through Mr. July’s evidence,which states that the only reason plaintiff and the other accusedwere indicted was because the allegations made in the statementsfiled in the Police docket obtained through further investigationssupported the information received from informers that theplaintiff was probably guilty of the charges.
[149]The second question, then, is whether Mr. July’s belief wasreasonable in the circ*mstances. Mr. July must have both reasonablybelieved in the existence of facts upon which [his] claim [was]based and correctly or reasonably believed that under thecirc*mstances outlined in the witness statements and other evidencethat the plaintiff was involved in the commission of the offencesstated in the indictment ( Annexure ‘1’). Since the reasonablebelief had to exist in the mind of Mr. July; the witnessstatements, exhibits that form part of the docket were relevant todetermining whether initiating prosecution was the appropriateaction against the plaintiff.
[150]Consequently, Mr July demonstrated that he subjectivelybelieved in the facts upon which the decision to prosecute wasbased. Further, his belief in the existence of these facts wasreasonable inasmuch as the facts were the result of a decision toprosecute.
[151]Finally, for the reasons stated before, the evidence in thedocket reasonably supported Mr July’s belief that it wasappropriate to make a decision to prosecute the Plaintiff for,among other things, High treason, murder, sedition and othercharges. Therefore, the court rules in favour of the defendant onthe issue of whether the second defendant had probable cause tomake a decision to prosecute the plaintiff and finds that on thefacts and information at the disposal of the second defendant thedecision to initiate the prosecution of the plaintiff cannot befaulted.
Malice/Animus Iniuriandi
[152]Malice means animus iniuriandi. That is, intention toinjure. Such intention might be inferred from facts of each case.The plaintiff must allege and prove that the proceedings wereterminated in his or her favour.[endnoteRef:1]6 [1: OrderHavingregard to all the foregoing issues and findings, the order issuedon 02 February 2017 is amplified with the following order:The pointin limine regarding the alleged non-compliance with Section 39(1)of the Police Act No. 19 of 1990 is dismissed.The action againstthe first defendant for malicious prosecution is dismissed withcosts.The claim against the second defendant for institutingmalicious criminal proceedings against the plaintiff isdismissed.The plaintiffs’ alternative claim based on maliciouscontinuation of the prosecution without reasonable and probablecause is upheld.Costs are granted in favour of the plaintiffa*gainst the second defendant and the third defendant jointly andseverally, the one paying the other to be absolved: consequent uponthe employment of one instructing and two instructed counsel.Thematter in relation to the 2nd defendant is postponed to 14 February2017 in chambers at 14h15 for direction regarding continuation andfinalisation of the matter on the quantum.
_________________P ChristiaanActing Judge
APPEARANCES:PLAINTIFF:A. CorbettInstructed by:Kangueehi &Kavendji
DEFENDANTS:I sem*nya SC (with him N. Marcus)Instructedby:Government Attorneys
]
[153]In the case of Relyant Trading (Pty) Ltd vShongwe,[footnoteRef:64] this court stated the following in regardto the third requirement: [64: 2007 1 All SA 375 (SCA).]
‘Although the expression “malice” is used, it means, in thecontext of the actio iniuriarum, animusiniuriandi.’[footnoteRef:65] [65: Referring to Heyns v Venter 2004(3) SA 200 (T) para 12 at 208B; Moaki v Reckitt & Colman(Africa) Ltd 1968 (3) SA 98 (A) at 104A-B (see also 103F-104A);Neethling et al op cit 124-125 (see also 179-182).]
[154] In Moaki v Reckitt & Colman (Africa) Ltd andAnother[footnoteRef:66] Wessels JA said: [66: 1968 (3) SA 98 (A) at104A-B]
“Where relief is claimed by this actio the plaintiff must allegeand prove
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