High Court of Namibia Main Division, Windhoek s4
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NOT REPORTABLE REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 3427/2013
In the matter between:
GEORGE LIFUMBELA MUTANIMIYE PLAINTIFF and
THE MINISTER OF SAFETY AND SECURITY 1ST DEFENDANT PROSECUTOR GENERAL 2ND DEFENDANT GOVERNMENT OF THE REPUBLIC OF NAMIBIA 3RD DEFENDANT
Neutral citation: Mutanimiye v The Minister of Safety & Security (I3427/2013) [2017] NAHCMD 197 (23June 2017)
Coram: PRINSLOO J Heard: 27 – 29 March, 04 April and 18 April 2017 Delivered: 03 July 2017 2
Flynote: Civil Practice – Delict – Elements; Malicious prosecution; instigation or continuation of prosecution; whether the police or prosecutor acted without reasonable and probable cause – Plaintiff acquitted of offence charged – second defendant continued to prosecute the plaintiff until 13 February 2013 without reasonable or probable cause whereas the second defendant should reasonably have stopped such prosecution in terms of Section 6(b) of the Criminal Procedure Act, Act 51 of 1977.
Summary: The plaintiff, George Lifumbela Mutanamiye instituted action against the 1st to 3rd Defendant namely; Minister of Safety and Security, Prosecutor General and Government of the Republic of Namibia. The alternative claim is based on alleged violation of various constitutional rights, which is set out in more detail hereunder, as a result of the prosecutions. On both claims the plaintiff seeks to recover damages in the amount of NAD 22 057 520.00.
The principal claim as alleged by the plaintiff is thus brought against the first and second defendants based upon malicious prosecution under the common law in respect of the period 4 August 1999 to 17 November 2005, alternatively 2 February 2006. In the alternative to the plaintiff’s claim, the plaintiff further claims damages based upon the wrongful and malicious continuation of the prosecution as from 17 November 2005, or 2 February 2006 for the crimes set out in the indictment
The defendants pleaded that the arrest of the plaintiff was based on reasonable suspicion that the plaintiff committed the offence of high treason and other offences referred to in the particulars of claim.
Court held: It is trite law that malicious prosecution action lies under the actio injuriarum. In that regard it rests on the plaintiff to show that the defendant set the law in motion against him and/or the defendant actively assisted in, and identified himself with the prosecution of the charge thus establishing an inference that it was the defendant who set the motion against him 3
Held further: There is no evidence before me to convince me that the police officers did anything other than what would be expected of them as set out supra. There is no evidence that the first defendant instigated the prosecution of the plaintiff.
Held further: It is clear that the prosecuting authority and accordingly also the prosecutor involved in this matter are clothed with the statutory power to institute and conduct criminal proceedings and matters incidental thereto on behalf of the State in terms of Art 88(2) of the Constitution.
Held further: The concept of reasonable and probable cause is the most onerous of the elements for a plaintiff to establish. The test contains both a subjective and objective element which means that there must be both actual belief on the part of the prosecutor and that, that belief must be reasonable in the circumstances.
Held further: I am satisfied that there are no sound reasons advanced by the plaintiff as to why the prosecution team had to disbelief the statements under oath at their disposal. Mr. July comprehensively set in the facts on which the decision by second defendant was based to prosecute plaintiff and there was a reasonable and probable cause for the prosecution.
Held further: Having considered the applicable legal principles and having applied same to the fact in this matter, I am of the view the plaintiff failed to prove on a balance of probabilities that the second defendant with malice in initiating the prosecution against the plaintiff or that second defendant instigated the proceedings did it with the aim to injure plaintiff.
Held further: I am of the opinion that from 17 November 2005 onward the second defendant lacked reasonable and probable cause to proceed with the matter against the plaintiff. 4
ORDER ______
1. The claim against the first defendant for malicious prosecution is dismissed.
2. The claim against the second defendant for instituting criminal proceedings against the plaintiff is dismissed.
3. The plaintiff’s alternative claim based on malicious continuation of prosecution without reasonable and probable cause is upheld.
4. Cost is granted in favor of the plaintiff against the second and third defendant jointly and severally, the one paying the other to be absolved, consequent upon employment of one instructing and one instructed counsel.
5. The matter is postponed to 27 July 2017 at 15:00 for Status Hearing as the matter is returned to the judicial case management roll, to deal with the issue regarding quantum.
______
JUDGMENT
PRINSLOO J
Introduction 5
[1] The events giving rise to the plaintiff’s claim in this instance, who is suing the Minister of Safety and Security, Prosecutor General and Government of the Republic of Namibia for damages, are sketched out by the defendants as follows:
[2] On 2 August 1999 armed rebels of the Caprivi Liberation Army (“CLA”) attacked various government installations at Katima Mulilo in the Caprivi region now Zambezi. The attacks by the CLA commenced in the early hours of the morning at about 02h30 and continued until about 10h00.
[3] People were killed and property destroyed. The security forces (Namibian and Namibian Defence Force) launched full scale operations to subdue the attack, and to apprehend those responsible for the attacks.
[4] A state of Emergency in respect of the Caprivi Region was declared by the President on 2 august 1999.
[5] On 4 August 1999, instructions were given by the Regional Commander in the Caprivi Region to arrest prominent and executive members of the United Democratic Party (“UDP”) at Katima Mulilo.
[6] According to intelligence information of the Police, the UDP was the political wing of the CLA. It had mobilized people to support the secession of the Caprivi from Namibia by violent means.
[7] Plaintiff was arrested by the Namibian Police (“Police”) based on information that he was an organizer and/or supporter of the UDP and had influenced people to take up arms to secede Caprivi from Namibia.
[8] The plaintiff was prosecuted together with other 125 accused person on 278 charges. The most serious charges, on which plaintiff was prosecuted, were high 6 treason, sedition, public violence, murder and attempted murder (collectively referred to as “high treason”) in what has become known as the Caprivi Treason trial1.
[9] On 11 February 2013, plaintiff was acquitted and discharged in terms of section 174 of the Criminal Procedure Act 1977 (“CPA”).
Matter before the court:
[10] The matter before this court is a consequence of the arrest and detention of the plaintiff by the officials of the Ministry of Safety and Security and the following prosecution of the plaintiff by officials of the Prosecutor General’s office, on suspicion that Plaintiff was guilty of high treason, sedition, public violence, murder and other serious crimes.
[11] During 2013, the plaintiff, George Lifumbela Mutanamiye instituted action against the 1st to 3rd Defendant namely; Minister of Safety and Security, Prosecutor General and Government of the Republic of Namibia. The alternative claim is based on alleged violation of various constitutional rights, which is set out in more detail hereunder, as a result of the prosecutions. On both claims the plaintiff seeks to recover damages in the amount of NAD 22 057 520.00. Pleadings:
Plaintiff’s claim:
1 Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD 25 (2 February 2017) at para [4] Christiaan AJ described it as: ‘The Caprivi Treason trial was distinctive and unprecedented in the legal history of this country. This could be related from the fact that 126 accused persons were charged on 278 counts, based on the doctrine of common purpose and conspiracy. There were 379 witnesses who testified on behalf of the State and more than 900 witness statements had to be considered. The duration of the trial was estimated to be about 10 years. During this period the accused were detained in custody and some of the accused and witnesses have died.’ 7
[12] In the plaintiff’s principal claim, he claims damages under common law against:
12.1. The first defendant in that subsequent to the plaintiff’s arrest on 4 August 1999, the Namibian Police wrongfully and maliciously set the law in motion by laying false charges and conveying false information to their members and the second defendant that the plaintiff was guilty of high treason and other crimes set out in the indictment2 and in so doing the members of the first defendant had no reasonable or probable cause for so doing, nor did they have any reasonable belief in the truth of the information given. Damage are thus sought on the basis of malicious prosecution.
12.2. Damages are sought against the second defendant on the basis that the second defendant or her employees wrongfully and maliciously set the law in motion against the plaintiff and continued to do so by prosecuting the plaintiff for the crimes set out in the indictments without probable cause, without having sufficient information at their disposal which substantiated such charges or justified the prosecution of the plaintiff on such charges; alternatively, without having any reasonable belief in the truth of any information given to them which could have implicated the plaintiff in the commission of high treason or the commission of any of the serious crimes referred to in the indictment.3
[13] The principal claim as alleged by the plaintiff is thus brought against the first and second defendants based upon malicious prosecution under the common law in respect of the period 4 August 1999 to 17 November 2005, alternatively 2 February 2006.
[14] In the alternative to the plaintiff’s claim, the plaintiff further claims damages based upon the wrongful and malicious continuation of the prosecution as from 17
2 Pleadings record, page 14.
3 Additional pleadings record, p. 4, para [11]. 8
November 2005, or 2 February 2006 for the crimes set out in the indictment, 4 only against the second defendant and/or her employees.
[15] It is submitted by the plaintiff that these are the following facts upon which he relies on:
15.1. The knowledge the second defendant and/or her employees had in respect of the fact that the testimony of all witnesses and all evidence which could have been present for the purpose of attempting to implicate the plaintiff regarding the commission of the crimes set out in the indictment was completed by 17 November 2005, or 2 February 2006;
15.2. Despite this fact, the second defendant continued to prosecute the plaintiff until 13 February 2013 without reasonable or probable cause whereas the second defendant should reasonably have stopped such prosecution in terms of Section 6(b) of the Criminal Procedure Act, Act 51 of 1977, by the aforesaid dates, or within a reasonable time thereafter;
15.3. Alternatively, the second defendant reasonably ought to have closed the State’s case against the plaintiff and moved for or caused his discharge and release him from prosecution and detention by the aforesaid dates; and
15.4. Alternatively, the second defendant ought to reasonably have caused the plaintiff’s release from prosecution and detention by the aforementioned dates in order to safeguard or prevent the violation of the plaintiff’s rights under one or more or all Articles 7,8,11,12,13 and 2 of the Namibian Constitution, read with Article 5 thereof.
[16] The alternative principal claim relates to the malicious prosecution of the plaintiff for the period of 17 November 2005, alternatively 2 February 2006 to the date of the plaintiff’s release on 11 February 2013.
4 Additional pleadings record, para [10A]. 9
[17] Moreover, the plaintiff brings an alternative claim on the same facts based upon the wrongful and unlawful negligent violation or infringement of the plaintiff’s constitutional rights against the defendants or their employees in arresting the plaintiff on 4 August 1999 and/or prosecuting the plaintiff thereafter for high treason and the further charges in the indictment, and failing to cause his release from prosecution and detention in the circumstances as set out in the principal claim,5 and more specifically the plaintiff’s fundamental constitutional rights guaranteed under all or one or more of Articles 7,8,11,12,13,16,19 and 21 and the undue delay of plaintiff’s trial contrary to Article 12(1)(b) of the Namibian Constitution. The plaintiff pleads that this violation is actionable in terms of a claim for damages contemplated by Article 25(3) and 25(4) of the Namibian Constitution.
[18] It is apposite to mention at this juncture that the liability and quantum were separated by agreement between the parties and the trial concerns liability only. This court will therefore for obvious reason not discuss the pleadings relating to the quantum.
First and second defendant’s plea:
[19] The defendants pleaded that the arrest of the plaintiff was based on reasonable suspicion that the plaintiff committed the offence of high treason and other offences referred to in the particulars of claim.
[20] Defendants further pleaded that issue concerning the lawfulness of the plaintiff’s arrest on 04 August 1999 and detention until 23 August 1999, when plaintiff appeared before a magistrate and his further detention was ordered by court and settled on 25 June 2010 and plaintiff is therefore not entitled to base any claim on the alleged unlawful arrest and detention by the members of the Namibian police.
[21] The first defendant pleaded that:
5 Additional pleadings record, pp. 4-5, para [10A]. 10
21.1 That Namibian Police (first Defendant) did not set the law in motion or instigate the prosecution of the plaintiff and that the conduct of the member of the Namibian Police was limited to investigation of the 02 August 1999 attack.
21.2 The witness statements and information obtained during the course of the said investigation was submitted to the Prosecution Authority (second defendant), in whom the power is vested to institute to prosecution6.
21.3 That the evidence obtained in the course of their investigation was sufficient grounds for the members of the Namibian Police to hold the belief that the plaintiff committed the offences as contained in annexure 1 of the particulars of claim.
[22] The second defendant pleaded that:
22.1 based on the available evidence, reasonable grounds existed to belief on prima facie basis, that the plaintiff committed the offences contained in annexure 1 of the particulars of claim or that responsibility could be attributed to the plaintiff based on the doctrine of common purpose and conspiracy to commit the offences so set out.
22.2 that, there was sufficient evidence to charge the plaintiff for high treason, if regard is had to the witness statements made under oath.
22.3 that prosecution could not be stopped against plaintiff neither could second defendant’s employees close the State’s case on 02 February 2006 or any time thereafter other than when State closed its case on 02 February 2012.
22.4 that by 02 February 2006 the second defendant’s employees were not in the position to know whether all the evidence that could implicate the plaintiff had been
6 In terms of article 88 of the Constitution. 11 presented and that all witnesses that could implicate the plaintiff had completed their evidence. 22.5 that the employees of the second defendant did not continuously perform appraisals of the evidence by the witnesses during the course of the criminal trial as it was humanly impossible due to the complexity of the case and the magnitude of the number of accused persons and witnesses before court.
22.6 that there was a possibility that the plaintiff could be implicated by witnesses called after 02 February 2006.
22.7 that based on the available witness statements and evidence presented during trial, common purpose or a conspiracy to overthrow the Namibian Government was prima facie established and that there was a possibility of the State’s case being strengthened during defence case and thus stopping of prosecution or closing case against the plaintiff would have been premature, risky and prejudicial to the State’s case.
22.8 that plaintiff had the remedy in terms of article 12(1)(b) of the Constitution to move for his release from prosecution and detention on 02 February 2006.
Pre-trial proceedings:
[23] A pre-trial conference was held in which the issues of fact and law to be addressed during the trial were addressed and the joint proposed pre-trial order was made an order of court.
[24] The issues of fact and law to be determined by this court are extensive and will not be replicated for purposes of this judgment.
The evidence: 12
[25] In support of the plaintiff’s case, Mr. George Lifumbela Mutanimye (the plaintiff) and Advocate John Walters, gave evidence. The defendants, for their part called Detective Chief Inspector Evans Simasiku, a member of the investigation team in the treason trial and Mr. Taswald July, based on his involvement as part of the prosecution team in the treason trial.
[26] The first witness called on behalf of the plaintiff was Adv. John Walters who testified that he is currently the Ombudsman of Namibia for the past 12 years. He acted as the Prosecutor-General of Namibia from 01 December 2002 up to the end of December 2013. When the 02 August attacks took place he was still in private practice. Upon his appointment he assembled a new prosecution team due to resignations from the previous team with only two prosecutors of the original team remaining. In respect of the prosecution of the matter he instructed the prosecution team to evaluate the evidence against the accused persons and to advise him whether there was sufficient evidence to proceed against them. He relied on their professional assessment of the case, which he trusted. He testified that he had no reason to doubt the correctness of the witness statements and therefore signed the indictment against the plaintiff and the other accused persons.
[27] Adv. Walters confirmed that the Prosecutor General and her staff derive their powers from Art 88 of the Namibian Constitution, which also requires of the Prosecutor- General and her staff to execute their prosecutorial functions independently and without fear, favour or prejudice. By virtue of the Constitution, the Prosecutor-General is empowered to delegate the power to prosecute to various prosecutors prosecuting in the courts of Namibia.
[28] During his evidence, Adv. Walter stated that when considering prosecution in a matter, a prosecutor has the duty to carefully consider the evidence in the police docket and if there is a need due to insufficient evidence to withdraw the matter and refer the docket back to the police for further investigation. He also stated that there is a duty on 13 the prosecutor to be aware of the constitutional provisions of a fair trial and that prosecutors should be mindful of arbitrary arrest and detention. Adv. Walters emphasized the fact that the obligation on a prosecutor is not one of getting a conviction at all costs but to see to it that justice is done. A prosecutor must thus act in a manner that is fair and to ensure that all relevant information is before court to enable court to make a just decision.
[29] When questioned about the team of prosecutors that was tasked to prosecute the ‘High Treason Trial’, Adv. Walters testified that the team of prosecutors he had assembled were people of consummate professionalism who discharged their responsibilities with the utmost care, given their diligence and skill. He also testified that they were ethical, honest and objective and harboured no bias towards the accused persons. He considered Adv. January, who was the lead prosecutor, and July to be competent prosecutors. He said that, Adv. July excelled because of his diligence.
[30] The next witness was the plaintiff, George Lifumbela Mutanimiye. He stated that he is currently 57 years of age, and was 43 years of age at the time of his arrest on 04 August 1999. He is married and have seven children. He stated that on 04 August 1999 he was driving with his wife, Clarina Lungowe Mutanimiye on route to his village at Lisikili when he was stopped by the police who were in two police vehicles. He was removed from the vehicle by a police officer he recognized as Patrick Liswani. Another police officer pressed the plaintiff on the throat and pushed him into a police vehicle.
[31] Mr. Liswani asked the plaintiff if the vehicle, plaintiff was driving, was the vehicle used to transport the children of Muyongo to South Africa. The plaintiff responded that he did not transport the Muyongo’s children to South Africa as his vehicle was in possession of his son, Silimwe upon which Mr. Liswani apparently replied “you mafwe, we will show you, this is our chance.” 14
[32] The plaintiff stated that at the time of his arrest he was not informed of the charges preferred against him. Hereafter he drove with the police to Lisikili area who was looking for Richard Mundia and Richwell Mukungu.
[33] When these men were not found, the plaintiff was taken to Katima Mulilo Police station where he was detained.
[34] During his detention at Katima Mulilo he was questioned by the police about his alleged involvement in the transportation of the Muyongo children to South Africa.
[35] On 09 August 1999, whilst still in detention at the Katima Mulilo Police station plaintiff was served with a statement in terms of article 24(2)(a) of the Namibian Constitution7. On 21 August 1999 plaintiff was charged by Mr. Liswani, who apparently held the rank of sergeant.
[36] On 22 August 1999 plaintiff together with others were transported to Grootfontein under the escort of military vehicles. In Grootfontein the plaintiff was detained at the Grootfontein Prison and was taken to the Magistrates Court the next day to make an appearance before court. His case was postponed for further investigation. After this date the plaintiff made continued appearances in this court until the matter was transferred to the High Court in Windhoek.
[37] The plaintiff remained in detention in Grootfontein from 22 August 1999 to October 2005 where after he was transferred to Windhoek Central Prison. He was detained in Windhoek Central Prison until 11 February 2013 when he was released from custody after being discharged by the High Court of Namibia.
[38] Subsequent to plaintiff’s arrest, he was indicted on charges of high treason, sedition and 273 other charges as set out in the indictment8.
7 Pleadings Bundle page 223; Exhibit A.
8 Pleadings Bundle pages 349-352; Exhibit P. 15
[39] The plaintiff testified that he never partook in any meeting which planned to secede the Caprivi from the rest of Namibia nor did he mobilize people to liberate Caprivi or donated money to the cause of the secessionist. The plaintiff referred to a number of witness statements provided by the Defendants as statements which were used to formulate a case against him.
[40] The mentioned witnesses referred to George Mutanimiye within context of the secession in one way or the other, however, the majority of these witness did either not testify and those who testified during the criminal trial did not implicate the plaintiff. The court will refer to the different witness statement and to some of the relevant portions of the statements referred during evidence in the criminal trial. Aforementioned statements were made by the following witnesses:
40.1 Albius Sinvula Liomba9
40.1.1 Mr. Liomba filed statement as the arresting officer setting out the circumstance of the plaintiff’s arrest.
40.2. Elli Simasiku10
40.2.1. Mrs. Simasiku is the wife of the Mafwe Chief, who made a statement on 18 January 2000, in which she stated:
‘ During July 1999, George Mutanimiye, a driver at Caprivi College of Education, approached me again. He said because we are not supporting Muxongo’s idea of liberating Caprivi from Namibia, they will cause us to run to Owamboland. He further said that they are now well equipped with arms’
9 Pleadings Bundle page 232-233;Exhibit D
10 Pleadings Bundle page 236-239 ; Exhibit F 16
40.2.2 This witness elected not to testify during the criminal trial as she did not want to testify against her husband’s subjects.
40.3 Daniel Sitali11
40.3.1. Mr. Sitali made three statements dated 18 January 2000, 11 February 2003 and 07 March 2003. Statement on 11 February 2003 stated as follows:
‘Other people who also attended the meeting supported the proposed idea by Mr. Muyongo and they are as follow: Leonard Ntelamo, George Mutanimiye and many others whom I can’t recall now. Geofrey Mwilima and Joseph Muchali were speakers in that meeting.’
40.3.2. A further statement made by Mr Sitali on 11 February 2003 stated:
‘3. Other people who also attended the meeting supported the proposed idea by Mr Muyongo and they are as follows: 3.1 Leonard Ntelamo 3.2 George Mutanimiye and many others whom I can’t recall now. Geoffrey Mwilima and Joseph Muchali were speakers in the meeting.’
40.3.3. This witness testified during the criminal trial but did not implicate the plaintiff.
40.4 Fabian Simbwaye Lifasi12
11 Pleadings Bundle page 240-246; Exhibits G-H
12 Pleadings Bundle page 247-248; Exhibit I 17
40.4.1. Mr Lifasi made a statement on 9 February 2000 and stated the following:
‘Upon our arrival at the office of DTA at Lisikili, about a number of people were already gathered there. The main speaker was Mr. Shailock Sinfwa who was by then the district Chairman. The main agenda of the meeting was about UDP which was out from DTA. Mr. Sinfwa addressed people that day that UDP is no longer part of DTA as it will be a party on its own in order to fight of liberation for Caprivi. We were informed by Sinfwa in the meeting to go out to our branches to organise people who will join our struggle in Botswana for the sake of liberating Caprivi. During late 1998 while at my village, I was approached by George Mutanimiye and Richwell Mukungu Matengu. Mr. Mutanimiye approached me by saying that I must supply people from my branch who must flee to Botswana to join our struggle which will liberate Caprivi. It was during night time when these visited and they were driving an open bakkie GRN. I told them that there are no people in my area to go to Botswana. According to them they said I must just organise people and they will transport them to Botswana border.”
40.4.2. Mr Fabian Lifasi testified and the court made specific reference to his evidence during the judgment on the application in terms of section 174 of the Criminal Procedure Act13.
40.4.3. The court in the summary of the evidence of Mr Lifasi indicated the on both the occasions that Mr Lifasi saw the plaintiff he was with Richard Mundia and on both occasions Richard Mundia was the spokesperson14.
40.5 Conrad Kufuna15
13 S v Malumo and Others (CC 32/2001) [2013] NAHCMD 33 (11 February 2013] para 129-131 of judgment.
14 Supra at para [130]
15 Pleadings Bundle page 249-251;Exhibit Q 18
40.5.1. Mr Kafuna made a statement on 17 February 2000. In paragraph 4 of his statement he states the following:
‘During the year 1999 on unknown date and month I was approached by a well- known person to me, Mr. Jojo Bernard Mau…….. and informed me that he also transported people to Botswana who went to join others in Dukwi Camp for the secession of Caprivi from Namibia. He told me this as a family member and he warned me not to inform any person. I only knew that people like George Mutanimiye, Richwell Mutengu, Leonard Ntelamo etc were transporting people from Katima Mulilo to Botswana on issue of succeeding Caprivi from Namibia.”
40.5.2. Mr. Kafuna did not testify during the criminal trial as he could not be traced.
40.6 Christopher Lifasi Siboli16
40.6.1. Mr Siboli made a number of statements dating on 13 April 2000; 02 April 2001 and 15 February 2003. He also made a statement dating back to 29 March 1999. The statement of Mr Siboli dating 13 April 2000 is voluminous but in para 53 to 55 of the statement he makes mention of George Mutanimiye as follows:
“53. George was a driver at Caprivi College of Education. He was an organiser of the succession. During 1997 he was informing people at Lisikili and Naneze as to what is going to happen about the succession. He was informing people to believe as they are being told by Muyongo
16 Pleadings Bundle page 252-315 and 19
54. During 1997 I attended with him a private meeting at Linganti. The meeting was to tell all of the Mafwe that we are going to cut Caprivi from the rest of Namibia. On the same date we came to Katima and we had again a meeting at George Mutanimiye’s place in Naweze. This meeting was to talk that the following date we had to go to the villages and spread the message of Chief Mamili that we are going to cut Caprivi from the rest of Namibia. The following date we did that.
55. During 1998, he mobilised people to go into the bush to liberate Caprivi. He had also donated money for the propagation of the attack. I did not know what the amount he donated was. I saw also his name on the list of the people who donated money. He was also a transporter for people who went to Dukwe with the purpose to liberate Caprivi. While we were in Dukwe, he used to phone us, and ask us when we are coming and attach in Caprivi. He was also one of the Kopano ya Tou member.”
40.6.2. Mr Siboli made reference to the plaintiff in the statements dated 02 April 2001 and 15 February 2003 but the court will not repeat same for purposes of this judgment.
40.6.3. The detailed statement of Mr Siboli dated 29 March 199917 of events preceding the attack of 02 August 1999 and named a number of persons allegedly involved in the planning of the secession of Caprivi. Plaintiff’s name does however not feature in the said statement.
40.6.4. Mr Siboli was indeed the last witness to testify regarding the plaintiff and his evidence was concluded on 17 November 2005.
40.7 Irene Kahimbi Mwazi18
17 Pleadings Bundle page 323-344; Exhibit M
18 Pleadings Bundle page 345-346; Exhibit N 20
40.7.1. Ms Mwazi made statements wherein she stated she got a lift to South Africa in the motor vehicle of the plaintiff being a blue bakkie with a canopy. The vehicle was driven by John Sibuku. She stated that during the said trip the two sons of Mr. Muyongo were also transported to South Africa.
40.8 IIetty Kahunu Nzundamo19
40.8.1. This witness stated that she travelled with Ms Mwazi to South Africa as passengers in the vehicle of the plaintiff. She also noted that the sons of Mr. Muyongo was transported to South Africa.
[41] Plaintiff denied any involvement in partaking, supporting or planning secession of Caprivi.
[42] Plaintiff stated that even after the decision was taken to prosecute him, the Namibian Police continued to instigate his prosecution by obtaining false statements from witnesses, with reference to Daniel Sitali and Christopher Siboli. He stated that he believed that the statements were fabricated against him by the police so as to justify his arrest and continued detention.
[43] In respect of the prosecuting authority, the plaintiff stated that if the Prosecutor General applied his mind to the facts in the docket objectively and cautiously and in good faith he would have declined to prosecute.
[44] Plaintiff submitted further that it was improper and unjustified for the prosecution to continue with the prosecution against him from the date on which the last witness testified, who referred to George Mutinamiye in his statement. Plaintiff further submitted that his continued prosecution from 02 February 2006 to 11 February 2013 when
19 Pleadings Bundle page 347; Exhibit O 21 plaintiff was discharged in terms of section 174 of the Criminal Procedure Act, was done with an improper or ulterior motive on the part of the prosecuting authority.
[45] During cross-examination of the plaintiff by the defendants’ counsel, he was taken to task on the complaint raised that most of the statements referred to were made long after he was arrested and the fact that the plaintiff alleged that the statements were fabrications.
[46] Plaintiff conceded during cross-examination that if the aforementioned statements were true it would implicate him in the commission of the offence of high treason and that on the basis of these statements made, the prosecution had no reason to find the allegations contained therein as unbelievable. Plaintiff however vehemently denied the contents of the said statements.
[47] Plaintiff accepted that the prosecution was in possession of statements deposed to under oath when they decided to institute prosecution.
[48] This concluded the case for the Plaintiff.
[49] The first witness called on behalf of the defendant was Detective Chief Inspector Evans Simasiku. Inspector Simasiku is employed by Ministry of Safety and Security and stationed at the High Treason and Counter Terrorism Office, Windhoek. He testified that in August 1999 he held the rank as Detective Sergeant and was attached to Criminal Investigation Unit in Zambezi area. D/Chief Inspector Simasiku confirms that the plaintiff was arrested on 04 August 1999 on information that the plaintiff was organizer/supporter of UDP. Shortly after the attack the security forces had to act quickly and to bring some normality to the region by rounding up the suspects. The aim was also to prevent rebels from fleeing to Botswana or Zambia. The suspects, who included the plaintiff, were arrested under the state of emergency that was declared and without having obtained statements first. Information was obtained from different sources, which included the community and captured rebels. 22
[50] He also explained the reason why statements were not obtained before the arrest and in some cases only after some time after the arrest. Once a suspect was arrested, the information against a suspect had to be verified by the security forces, made up of military intelligence personnel, the special branch of the Police and detectives.
[51] The issue of the delay in obtaining witness statements were canvassed with D/Chief Inspector Simasiku. He testified that the Police was faced with 126 accused persons but had only 5 investigators and although the number of investigators was later increased to 22, it still took time to collect the witness statements from the 900 witnesses. After the arrest of the suspects the investigation continued and the investigators were guided by the prosecution team as to statements to be obtained or retaken or information to be followed up. The witnesses were interviewed and information was verified where after statements were obtain. These witness statements were made available to the Prosecuting Authority as part of the docket on which a decision was made to indict the plaintiff and the rest of the accused person. The witness denied that the statements were fabricated or falsified.
[52] The second witness called on behalf of the defendant was Mr. Taswald July who testified that he was the Deputy-Prosecutor-General when the Caprivi Treason trial commenced, but since resigned from the Office of the Prosecutor-General.
[53] Mr. Taswald testified that he joined the prosecuting team in January 2003 and said team consisted of Advocate January (as he then was) and the late Advocate Barnard. Lead counsel on the prosecution team was Advocate January. The witness stated that he was not involved with the initial formulation of the charges (which was done in 2001). The prosecution team reviewed the charges after an application for further trail particulars was received. The new prosecution team considered the evidence against all the accused persons, including the plaintiff, based on the indictment signed in 2001, and was satisfied on a prima facie basis that the plaintiff 23 committed the offences alleged. Mr. July referred in his evidence to the witness statement already referred to supra and state that the evidence contained in these statements established on a prima facie basis that the plaintiff, a member of the UDP and that the plaintiff actively associated himself with the actions of those who had the aim of seceding the Caprivi from the Republic of Namibia, by transporting people to Botswana, influencing people to support the idea of seceding and supporting the cause by giving monetary contributions.
[54] On the issue of undue delay in the prosecution of the matter, Mr. July testified that trial was exceptional in nature and the magnitude in the legal history of Namibia. He stated that there were 126 accused persons who were charged with 278 counts involving high treason, treason, murder, attempted murder and so forth. He stated that during the trial, 379 witnesses were called to testify and there were more than 900 witness statements to consider.
[55] The case was also filled with delays due to applications for postponement on the behest of the State and the Defence for various reasons, withdrawal of counsel, difficulty in securing witnesses and extra-ordinary issues i.e. the challenge in respect of the jurisdiction of the High Court to hear the matter.
[56] Another reason for the delay was an unfortunate motor vehicle accident in which Adv. Barnard tragically passed away and both the witness and Adv. January were severely injured.
[57] Mr. July testified that there was no reason for the second defendant to maliciously prosecute the plaintiff as all decisions were taken in good faith and based on an honest belief that there was a prima facie case against the plaintiff. He stated that due to the magnitude of the matter it was not humanly possible to do a regular assessment of the matter. He submitted that it would have been prejudicial and very risky for the State to stop prosecution against the plaintiff as the State was not in the 24 position to know whether all the evidence that could implicate the plaintiff had been presented and that all witnesses that could implicate the plaintiff had completed their evidence.
[58] During November 2010 prior to the close of the prosecution’s case an appraisal was done by the prosecution team of the evidence given by the witnesses with respect to all the accused persons. Instructions were given to the Namibian Police to carry out further investigation on certain issues. The application to allow this evidence was however not successful. Mr July confirmed that the plaintiff was ultimately discharged in terms of s174 of the Criminal Procedure Act on 11 February 2013.
[59] This concluded the case for the Defendants.
The Relevant Law
Malicious Prosecution
[60] In Akuake v Jansen van Rensburg20 Damaseb JP states the following at p.404F:
‘To succeed with a claim for malicious prosecution, a claimant must allege and prove that:
(i) That the defendant actually instigated or instituted the criminal 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; and that (v) He suffered loss and damage.
[61] As in the case of preceding matters21 of similar nature, this court need to determine –
20 2009 (1) NR 403 (HC). Also see Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196G – H. 25
a) whether the Namibian Police instigated or instituted the criminal proceedings; b) if so instigated or instituted, was it actuated by improper motive and without probable cause; c) whether the Prosecutor-General acted with malice and without probable cause in prosecuting the plaintiff.
Instigated or instituted the criminal proceedings
Ad First Defendant:
[62] It is trite law that malicious prosecution action lies under the actio injuriarum22. In that regard it rests on the plaintiff to show that the defendant set the law in motion against him and/or the defendant actively assisted in, and identified himself with the prosecution of the charge thus establishing an inference that it was the defendant who set the motion against him23.
[63] It is the case of the plaintiff that the first defendant subsequent to the plaintiff’s arrest on 4 August 1999, wrongfully and maliciously set the law in motion by laying false charges and conveying false information to their members.
21 Mahupelo v The Minister of Safety and Security (I 56/2014) [2017] NAHCMD 25 (2 February 2017); Makapa v The Minister of Safety and Security (I 57/2014) [2017] NAHCMD 130 (05 May 2017)
22 Lemue v Zwartbooi L1896 13 SC 403, see also Prinsloo v Newman 1975 (1) SA 481 ’(A) at 491.
23 Baker v Christine 1920 WLD 14 at 17. 26
[64] The initial enquiry is whether, on all the facts of the case, it can be said that the Namibian Police either instigated or instituted the prosecution. What is involved in such an enquiry was stated as follows by GARDINER, J., in Waterhouse v Shields, 1924 C. P. D. 155 at p. 160:
‘ The first matter the plaintiff has to prove is that the defendant was actively instrumental in the prosecution of the charge. This is a matter more difficult to prove in South Africa, where prosecutions are nearly always conducted by the Crown, than it is in England, where many cases are left to the private prosecutor. Where a person merely gives a fair statement of the facts to the police and leaves it to the latter to take such steps thereon as they deem fit, and does nothing more to identify himself with the prosecution, he is not responsible, in an action for malicious prosecution, to a person whom the police may charge. But if he goes further, and actively assists and identifies himself with the prosecution, he may be held liable. 'The test', said BRISTOWE, J., in Baker v Christiane, 1920 W. L. D. 14, 'is whether the defendant did more than tell the detective the facts and leave him to act on his own judgment!'"
This passage, as well as the following passage from the judgment of PRICE, J., in Madnitsky v Rosenberg, 1949 (1) P. H. J5, were quoted with approval by JANSEN, J. A., in the Lederman case, supra at p. 197:
"When an informer makes a statement to the police which is wilfully false in a material particular, but for which false information no prosecution would have been undertaken, such an informer 'instigates' a prosecution".’
[65] In light of the court’s findings in the Waterhouse case op cit. it is necessary to consider whether Namibian Police did anything more than one would expect from a police officer under the circumstances. In the matter of Minister of Justice and Others v Moleko,24 the court said the following with regard to the liability of the police:
24 2008) 3 ALL SA 47(SCA), para11. 27
‘ With regard to the liability of the police, the question is whether they did anything more than one would expect from a police officer in the circumstances, namely to give a fair and honest statement of the relevant facts to the prosecutor, leaving it to the latter to decide whether to prosecute or not.’ (Underlining, my emphasis)
[66] From the evidence of Detective Chief Inspector Simasiku, it is clear that the Namibian Police gathered information from various sources and agencies where after they interviewed the witnesses and obtained the necessary statements in order to compile a docket.
[67] The docket in turn was submitted to the Office of the Prosecutor-General, second defendant, who made the decision to institute prosecution, against whom said prosecution would be instituted and on what charges.
[68] Plaintiff presented no evidence to gainsay the evidence of Detective Chief Inspector Simasiku. The issue raised by the plaintiff that the statements obtained by the first defendant was falsified was clearly laid to rest during cross-examination.
[69] There is no evidence before me to convince me that the police officers did anything other than what would be expected of them as the investigators in this matter. There is no evidence that the first defendant instigated the prosecution of the plaintiff and the claim against the first defendant can thus not succeed.
Ad second defendant:
[70] This court must now consider the liability of the second defendant, if any, with specific reference to (ii)25 and (iii)26 of the elements of malicious prosecution as set out in the Akuake matter supra. It will not be necessary to discuss the issue of (iv) termination of proceedings in favour of plaintiff as it is common cause between the parties nor is it
25 Without reasonable and probable cause.
26 It was actuated by an indirect or improper motive (malice) 28 necessary to discuss (v) loss and damage suffered as the matter of quantum is separated for purposes of these proceedings.
[71] The constitutional role of the Prosecuting Authority was discussed in detail by Christiaan AJ in the matters of Mahupelo v The Minister of Safety and Security27 and in Makapa v The Minister of Safety and Security28. From said discussion it is clear that the Prosecuting Authority, and accordingly also the prosecutors who was seized with the criminal matter, were clothed with the statutory power to institute and conduct criminal proceedings and matters incidental thereto on behalf of the State in terms of Art 88(2) of the Constitution.
[72] The court discussed the discretion of the prosecuting authority as follows29:
‘[126] It is a well-known fact that a prosecutor exercises discretion on the basis of the information before him or her. This would call upon a prosecutor to ensure that the general quality of decision- making and case preparation is of a high level, and that decisions are not susceptible to improper influence.
[127] Prosecutors should thus not initiate or continue proceedings when an impartial investigation shows the charge to be unfounded. 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 of such evidence. This is to be recognised by the common law principle that there should be “reasonable and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated (or maintained) and the necessary constitutional protection afforded.
27 (I 56/2014) [2017] NAHCMD 25 (2 February 2017);
28 (I 57/2014) [2017] NAHCMD 130 (05 May 2017)
29 Makapa v The Minister of Safety and Security supra at page 36. 29
[128] I must note that courts are not eager to limit or interfere with the legitimate exercise of prosecutorial authority. However a prosecuting authorities’ discretion to prosecute is not immune from the scrutiny of a court which can intervene where it is alleged that such discretion is improperly exercised.’
Without reasonable and probable cause
[73] This Court in Beckenstrater v Rottcher and Theunissen30 at 136A-B set out the test for “absence of reasonable and probable cause” as follows:
‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.’
[74] The concept of reasonable and probable cause is the most onerous of the elements for a plaintiff to establish. The test contains both a subjective and objective element, which means that there must be both actual belief on the part of the prosecutor and that, that belief must be reasonable in the circumstances31.
30 1955 (1) SA 129 (A)
31 J Neethling, JM Potgieter & PJ Visser Neethling’s Law of Personality (2 ed, 2005) at 366-367: “There is an absence of reasonable and probable cause for the prosecution either (i) if there are, from an objective viewpoint, no reasonable grounds for the prosecution, or (ii) if, where such grounds are in fact present, the defendant does not, viewed subjectively, believe in the plaintiff’s guilt. The defendant will thus be acquitted if, on the one hand, there existed reasonable grounds for the prosecution and, on the other hand, he also believes in the plaintiff’s guilt. The question of whether reasonable grounds exist may only be answered by reference to the facts of each particular case. The facts must then reasonably, or according to the reasonable person, indicate that the plaintiff probably committed the crime.” 30
On the subjective element:
[75] The prosecution in the matter in casu relied on the information received from the Namibian Police and the statements under oath from third persons. The problem of the prosecutor’s belief is compounded where they have to belief on the statements of third parties.
[76] To consider merely what the prosecutor knew or believed at the time the prosecution was instigated or maintained, is not appropriate where the knowledge of a prosecutor is confined to the knowledge or belief of what others have said or done 32. In these cases, it is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt, it is whether the plaintiff proves that the prosecutor did not honestly from the view that there was a proper case for prosecution, or proves that the prosecutor formed the view on an insufficient basis. Thus, determining what a proper case for prosecution is will require examination of the prosecutor’s state of persuasion about the material considered by them. This formulation of the subjective question ensures that the role of institutional prosecutors is neither distorted nor hindered by imposing on prosecutors too high a threshold to bring cases to trial33.
On the objective element:
[77] In the matter of A v State of New South Wales34 the court refers to the matter of Herniman v Smith35 when it discussed the subjective requirement, where Lord Atkin said the following:
32 A v State of New South Wales [2007] HCA 10 21 March 2007 at page 33.
33 Norm Maamary, Determining Where the Truth Lies: Institutional Prosecutors and the Tort of Malicious Prosecution,p. 354.
34 [2007] HCA 10 21 March 2007 at page 35.
35 Herniman v Smith [1938] AC 305 at 317. 31
‘ It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution.’
The court proceeded to say the following:
‘The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.’
[78] The crucial issue is what information and evidence was available to the State when the decision to prosecute was taken and whether that, and any inferences to be drawn there from, were sufficient to at least prima facie point to the commission of an offence by the plaintiff.
[79] According to Detective Chief Inspector Simasiku the police docket and its contents was submitted to the Prosecuting Authority. The initial indictment was drafted in 2001 and reviewed in 2003 by the team lead by Adv January. Some of the affidavits that formed part of the docket was referred to by Mr. July were allowed as exhibits. These statements were not admitted for the correctness of the contents thereof but for what the statements purported to be. Mr. July thus had evidence on oath of the allegations recorded in the said statement, although the correctness of the statement was not admitted by the plaintiff. Mr July testified that he and the rest of the prosecution team had extensive consultation with the witnesses. The witnesses were divided amongst the three of them to be able prosecution counsel to properly consult and then lead the witness in court. He stated that he had satisfied himself as to the credibility of these witnesses during the consultations held with them. However his impressions as to their credibility and whether the allegations the various state witnesses deposed to may ultimately be proved, is not relevant to this trial.
[80] When applying the aforementioned to the facts of the current matter, I am satisfied that there are no sound reasons advanced by the plaintiff as to why the 32 prosecution team had to disbelief the statements under oath at their disposal. Mr. July comprehensively set in the facts on which the decision by second defendant was based to prosecute plaintiff and there was a reasonable and probable cause for the prosecution.
Actuated by an indirect or improper motive (malice)
[81] This brings me to the next requirement which is the presence of malice or animus injuriandi. For the Plaintiff to succeed in proving this requirement, it must show that the defendant intended to injure (either dolus directus or dolus indirectus)
[82] In the Relyant case,36 this court37 stated the following in regard to the third requirement:
‘Although the expression “malice” is used, it means, in the context of the action iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and another Wessels JA said: “Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance.” ’
[83] It is trite that a prosecutor has a duty to prosecute a matter if there is a prima facie case and if there is no compelling reason for refusal to prosecute. In this context therefore, “prima facie case” means the following: the allegations, as supported by
36 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) para 5.
37 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). 33 statements and where applicable combined with real and documentary evidence available to the prosecution, are of such a nature that if proved in a court of law by the state on the basis of admissible evidence the court should convict.38
[84] Having considered the applicable legal principles and having applied same to the fact in this matter, I am of the view the plaintiff failed to prove on a balance of probabilities that the second defendant acted with malice in initiating the prosecution against the plaintiff or that second defendant instigated the proceedings did it with the aim to injure plaintiff.
Malicious continuation of the prosecution
[85] The alternative claim is that the second defendant and/or her employees wrongfully and maliciously continued the prosecution as from 17 November 2005, or 2 February 2006 for the crimes set out in the indictment against the plaintiff.39
[86] In the Mahupelo case,40 Christiaan AJ recognized the element of continuation or maintaining proceedings in our common law, on the part of the prosecutor, in imposing liability based on malicious prosecution as follows:
‘[165] The abovementioned has a direct bearing on the matter before court. To extent this principle to the current circumstances, my addition would be: Public and legal policy embodying the legal convictions of the community ,determined with reference to the values and norms embodied in the Namibian Constitution, require the recognition of continuation or maintaining prosecution on the part of a prosecutor in
38 (Freedom Under Law v National Director of Public Prosecutions & others 2014 (1) SA 254 (GNP); 2014 (1) SACR 111 (GNP): [20131 4 All SA 657 (GNP)
39 Additional pleadings record, para [10A].
40 Supra. 34 imposing liability based on malicious prosecution. The Prosecutor- General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Prosecutor -General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. (Emphasis added).
Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which prosecutors can properly pursue their professional goals.
[166] The Namibian Constitution does not include a provision such as s 39 (2) of the South African Constitution which requires the courts to develop the common law as to promote the spirit, purport of the Bill of Rights in the Constitution. This lacuna does not however preclude the court from developing the common law in appropriate of deserving cases.’
And further
[177] In my view, a workable standard for continuation of malicious prosecution can easily be garnered from the elements that must be shown to prove the initiation of a malicious prosecution. Thus, the standard for continuing a malicious prosecution would be:
‘ (i) That the defendant actually instigated/ instituted or continued / maintained the criminal proceedings; ( my addition) (ii) Without reasonable and probable cause; and that (iii) The instigation or continuation of the criminal proceedings was actuated by an indirect or improper motive (malice) and; (my addition) (iv) That the proceedings were terminated in his favour; and that (v) He suffered loss and damage.’
[87] The facts regarding the continued prosecution in the current matter is the same as in the Mahupelo and Makapa cases op cit and it was argued on behalf of the defendants 35 that these cases are now on appeal, and should therefore not be considered. Apart from the fact that the authorities referred to in the above two judgements have been applicable in our Courts for decades, I see no reason why I should not consider them, even if an appeal has been noted, as they remain law until set aside by the Supreme Court. In any event, I am in respectful agreement with those judgments.
[88] The enquiry is thus if probable cause exits initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue such prosecution, is there then any liability when a party maintains the action thereafter?
[89] This question has been addressed in the case of Hathaway v State of New South Wales41 and the court held that:
‘Maintaining proceedings is a continuing process. It is conceivable that a prosecutor may act for proper reason (i.e. non-maliciously) or with reasonable and probable cause (or the plaintiff may be unable to prove malice, or the absence of reasonable or probable cause) at the time of institution of proceedings, but, at a later point in the proceedings, and while the proceedings are being maintained, the existence of malice or the absence of reasonable and probable cause may be shown. At any time at which the sole or dominant purpose of maintaining the proceeding becomes an improper (malicious) one, or the prosecutor becomes aware that reasonable and probable cause for the proceedings does not exist, or no longer exists, the proceedings ought to be terminated, or the prosecution is malicious.’42
[90] On the proposition by counsel for the plaintiff that the prosecuting authority should have stopped the prosecution in respect of the plaintiff, Mr. July indicated that the matter could not be stopped as there were multiple accused persons and that the matter was based on the doctrine of common purpose and conspiracy and in addition thereto it would have been prejudicial to the defendant’s case. He also indicated that a
412009 NSWSC at 116.
42 State of New South Wales v Hathaway 2010 NSWCA 188 para 118. 36 possibility existed that the plaintiff could be implicated by witnesses that did not make statements and/or co-accused persons.
[91] Stopping of prosecution in terms of section 6 of the Criminal Procedure Act43 was not the only option available to the prosecuting authority. Proceedings could have been separated in terms of section 157(2)44 of the said Act on application to the court, when it became apparent that that no prima facie case could be made out in respect of the plaintiff. That would however have called for an evaluation of the evidence.
[92] What is of concern that even after appraisal of the matter in November 2010 and when the realization dawned on the prosecuting authority that there were gaps in the State’s case and the court refused to allow further statements obtained to be used in evidence, they still persisted to oppose an application in terms of section 174 of Act 51 of 1977 (Criminal Procedure Act). This was apparently on the off chance that the plaintiff could be implicated by co-accused persons.
[93] In the Zreika v State of New South Wales45 case, the court held that the police lacked reasonable and probable cause from a certain date when inter alia the state witnesses failed to identify the plaintiff as the perpetrator of the offense in a photo array which included a photograph of the plaintiff. The prosecutor knew at this stage that the case lacked reasonable and probable cause but continued prosecuting hoping that she would find enough evidence against the accused.
[94] Mr. Siboli, the final witness who testified in respect of the plaintiff completed his evidence on 17 November 2005. Hereafter the plaintiff remained in detention for a further 5 years before the evidence against all the accused was evaluated in November
43 Act 51 of 1977.
44 Section 157 (2): Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused shall be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of such accused.
45 2011 NSWDC 67. 37
2010 prior to the closing of the State’s case. This was in spite of the fact that the State led all the witnesses at their disposal in respect of the plaintiff, which was not enough to make out a prima facie case which required plaintiff to answer to.
[95] The review of a case is a continuing process. Prosecutors must take into account changing circumstances and fresh facts, which may come to light after an initial decision to prosecute or not to prosecute has been made. The evidence in the criminal case was evaluated and appraised only twice, i.e. 2003 and 2010.
[96] The reason advanced for the Prosecuting Authority’s failure to do an assessment of the case on regular basis was the lack of human capacity. I am in agreement with Christiaan AJ that this is an unacceptable explanation from the prosecution for their failure to adhere to their constitutional duty46.
[97] In the matter of Glinski v McIver47 Denning LJ noted that the presence of malice is usually apparent where it can be shown that a prosecutor lacked an honest belief in the justification of commencing proceedings, because in such circumstances it typically follows that some extraneous and improper purpose actuated the prosecution of an accused. I am of the opinion that it would also relate to the continuation of prosecution in the absence of reasonable cause to do so48. Failure on the part of the prosecution to regularly assess the evidence and take the necessary recourse in light of such assessment caused the plaintiff to be detained for a further five year after the last witness testified which was relevant to him. He was detained without a prima facie case being made out against him and the aforesaid failure on the part of the prosecution caused a perversion of the process of criminal justice, which in my opinion satisfies the malice element.
46 Mahupelo case supra at page 58 para [210].
47 [1962] AC 726,766
48 Also see Hathaway v State of New South Wales supra 38
[98] Christiaan AJ found in the Mahupelo and Makapa49 cases the following:
‘[210] In my view, there is a constitutional duty on the public prosecutor(s) handling a case to ascertain the reasons for any further detention of a suspect and the prosecutor has to place such reasons or lack thereof before court. Persisting in the prosecution of the plaintiff and failing to advise the court on the issue of bail when the defendant knew that there was no case against the plaintiff, can be particularised above constituted ill-will and spite towards the plaintiff50.
And Further
[217] But as the authorities show, malice covers any motive other than a desire to bring a criminal to justice: (see also: Glinski v McIver [1962] AC 726,766; Rapley v Rapley (1930) 30 SR (NSW) 94, 99. I accept Mr July’s evidence that he did not know the plaintiff before the offence occurred. I accept he did not bear him any particular spite or ill will before or after the arrest, but during the course of the proceedings, there was evidence of malice in the respects I alluded to earlier.’
[99] I respectfully agree with the findings made by my Sister in the Mahupelo and Makapa matters51 as the facts upon which she made her findings are exactly the same as the current matter.
[100] I therefore find that the plaintiff made out a case on the balance of probabilities on the alternative claim, i.e. the claim based upon the wrongful and malicious continuation of the prosecution as from 17 November 2005, or 2 February 2006 for the crimes set out in the indictment, only against the second defendant and/or her employees.
49 Supra.
50 Supra para 210.
51 Supra. 39
[101] In light of the aforesaid findings, I do not find it necessary to pronounce myself on the further alternative relating to the infringement of the constitutional rights of the plaintiff.
[102] The only remaining issue is the position of the third defendant in this matter.
[103] This issue was addressed as follows in the Mahupelo matter:
‘[224] A question to be addressed is: ‘Did the third defendant owe a duty to the plaintiff?
[225] In answering this question I would like to rely on what was said in the case of Lapane v Minister of Police52
“The answer lies in the recognition of the general norm of accountability: the state is liable for the failure to perform the duties imposed upon it by the constitution unless it can be shown that there is compelling reason to deviate form that norm.”
[226] I find that the employees of the second defendants did not exercise their powers in a bona fide manner. They left the plaintiff to be incarcerated for no bona fide reason. In my view no prosecutor acting objectively and properly could have continually sought a postponement of the matter for over two years and objected to bail on the evidence it had. The employees of the second defendant did not exercise any discretion. The prosecutors failed to apply an independent mind to the facts of the case.
[227] In this case it is important that the traditional requirements for immunity be measured against the constitutional imperatives. I find that the plaintiff has no other effective remedy against the third defendant. The third defendant is liable for failure to
522015 (2) SACR 138. 40 perform the duties imposed upon it by the Constitution and there is no compelling reason to deviate from that norm.’
[104] For the reasons mentioned above, I therefore make the following order:
1. The claim against the first defendant for malicious prosecution is dismissed.
2. The claim against the second defendant for instituting criminal proceedings against the plaintiff is dismissed.
3. The plaintiff’s alternative claim based on malicious continuation of prosecution without reasonable and probable cause is upheld.
4. Cost is granted in favour of the plaintiff against the second and third defendant jointly and severally, the one paying the other to be absolved, consequent upon employment of one instructing and one instructed counsel.
5. The matter is postponed to 27 July 2017 at 15:00 for Status Hearing as the matter is returned to the judicial case management roll, to deal with the issue regarding quantum.
______JS Prinsloo Judge 41
APPEARANCES:
FOR THE PLAINTIFF: Mr. Makando (with him P. Muluti) INSTRUCTED BY: Muluti & Partners, Windhoek
FOR THE DEFENDANT: Adv. Semenya (with him N. Marcus) INSTRUCTED BY: Government Attorneys, Windhoek