I 56/2014 in the Matter Between: RICHWELL

Reportable REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: I 56/2014

In the matter between:

RICHWELL KULISESA MAHUPELO PLAINTIFF and

MINISTER OF SAFETY AND SECURITY FIRST DEFENDANT PROSECUTOR GENERAL SECOND DEFENDANT GOVERNMENT OF THE REPUBLIC OF NAMIBIA THIRD DEFENDANT

Neutral citation: Mahupelo v Ministry of Safety and Security (I 56/2014) [2020] NAHCMD 143 (6 May 2020)

CORAM: NDAUENDAPO, J

Heard: 9 - 11 September 2019 Delivered: 6 May 2020

Flynote: Constitutional Law – Claim for Constitutional Damages – Plaintiff charged with serious crimes – Treason Trial – Detained for 13 years – Found not guilty – Right to a fair trial – Violation thereof – Other effective remedies available to protect and 2 enforce rights – Failure to employ such remedies fatal to claim for constitutional damages – Supreme Court finding prosecution of plaintiff lawful – Claim dismissed.

Summary: The plaintiff was indicted on charges of high treason and other serious crimes after state installations were attacked by rebels in the former Caprivi Region, now known as the Zambezi Region. The plaintiff was charged with 125 other accused persons. The plaintiff spent 13 years in detention. At the end of the state’s case he was found not guilty and discharged.

The plaintiff instituted a claim for malicious prosecution, alternatively a claim for wrongful and malicious continuation of the prosecution without a reasonable and probable cause, in the further alternative, a claim for constitutional damages, claiming N$ 15 321 400. The case was heard by this court per Christiaan AJ. The court dismissed the main claim of wrongful and malicious institution of the prosecution and upheld the claim for malicious continuation of the prosecution without a reasonable and probable cause.

The court did not adjudicate the claim for constitutional damages. The defendants appealed to the Supreme Court against the finding of the court to uphold the alternative claim for wrongful and malicious prosecution without a reasonable and probable cause. The Supreme Court found that the prosecution of the plaintiff from the initiation right up to the end when he was found not guilty, was justified and lawful.

The Supreme Court did not deal with the claim for constitutional damages and referred that claim back to the High Court. When the matter came before me, the parties agreed that only the question of liability will be argued and that no evidence will be led, the parties closed their respective cases and the court had regard to the evidence led in the main action.

Held, that plaintiff had various effective remedies as provided for by the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA) and the Constitution, but failed to employ those remedies to protect and enforce his constitutional rights.

Held further, that the finding of the Supreme Court that the prosecution of the plaintiff from the beginning right up to the end was lawful, is binding on this court. It follows that his rights were not unlawfully violated and constitutional damages therefore cannot follow.

Held further, that the plaintiff did not make out a case for constitutional damages.

Held further, that the case is dismissed and there is no order as to costs.

______ORDER ______

1. The plaintiff’s claim for constitutional damages is dismissed.

2. There is no order as to costs.

__ JUDGMENT __

NDAUENDAPO, J

Introduction

[1] This case concerns a claim for constitutional damages in the amount of N$ 15,321,400.00 instituted by the plaintiff against the defendants. The plaintiff was arrested on 16 March 2000, detained and indicted on charges of treason and other serious crimes. The plaintiff spent 13 years in prison before he was found not guilty and discharged. He claims that during his detention his constitutional rights were infringed by the defendants, consequently he seeks constitutional damages.

[2] In the particulars of claim filed of record, the plaintiff alleged that during his detention his right to a fair trial, the right to dignity and other rights were unlawfully violated. The defendants admitted that he was so detained, but denied that his constitutional rights were violated.

Background facts

[3] On 2 August 1999 a group of people who were members and/or sympathetic to the so-called Caprivi Liberation Army launched several violent attacks against several state installations at or around Katima Mulilo. Their aim was to secede the then Caprivi Region (now Zambezi Region) from the Republic of Namibia. As a consequence of this attacks, nine people lost their lives, others injured and property destroyed. Some of the perpetrators of these attacks were arrested and others fled to Botswana. The plaintiff was one of those who was arrested, detained and prosecuted.

[4] The plaintiff was arrested together with Bennet Mutuso, Aggrey Mwambwa and Richard Mahupelo while travelling in a vehicle driven by Aggrey Mwambwa. The police found an AK 47 assault rifle in a bag that was in the car. He and the 125 co-accused persons were then charged with high treason, sedition, murder, public violence and robbery with aggravating circumstance in the Grootfontein Magistrate’s court and were then arraigned on those charges in the High Court. The prosecution relied on the doctrine of common purpose and on conspiracy to commit the offences and crimes listed in the indictment. After a marathon trial that lasted for over 13 years, the plaintiff was found not guilty and discharged in terms of section 174 of the CPA. Consequently, the plaintiff sued the Minister of Safety and Security (first defendant), the Prosecutor General (hereafter referred to as the PG) (second defendant) and the Government of the Republic of Namibia (third defendant) for constitutional damages in the sum of N$ 15 321 400.

The pleadings and evidence relevant to the claim for constitutional damages

[5] The main claim in the action was for malicious prosecution directed against the Minister and the PG. The plaintiff in the alternative sought damages against the PG 5 for the alleged malicious continuation of his prosecution. In the further alternative, the plaintiff brought a claim based on constitutional damages. In the particulars of claim he alleges that:

‘During the 16 March 2000 until 11 February 2013 the plaintiff was - 17.1 detained at Katima Mulilo Police Station; from 16 March 2000 to 18 March 2000; and 17.2 thereafter detained at Grootfontein Military Base from 18 March 2000 to 2nd May 2000; 17.3 further detained at Oluno prison in Ondanwa from 02nd May 2000 to 23rd October 2000; 17.4 further detained at Windhoek Central Prison from 23rd October 2000 to 01st January 2001; 17.5 further detained at Grootfontein prison from 1st January 2001 to 02nd January 2001; 17.6 further detained at Oluno Prison in Ondangwa from 2nd January 2001 to 4th January 2001; 17.7 further detained at Grootfontein Prison from 4 January 2001 to 25 October 2005; 17.8 further detained at Windhoek Central Prison from 25 October 2005 to 11 February 2013; 17.9 prosecuted and tried for high treason and other serious crimes; 17.10 for that purpose appeared and was tried in the magistrate court and the high court of Namibia.

18. During all the events referred to in the previous subparagraphs 17.1 to 17.10 and for the period from 16 March 2000 until 11 February 2013, the plaintiff remained in custody until he was found not guilty of the charges preferred against him and released from detention on 11 February 2013. In total plaintiff was detained for 4716 days.

19. The facts and circumstances set out in the two preceding paragraphs supra, were occasioned by the wrongful, unlawful and negligent violation or infringement of the constitutional rights, which were perpetrated by the defendants or their employees as aforesaid in arresting the plaintiff on 16 March 2000 and/or prosecuting the plaintiff thereafter for high treason and further charges referred in annexure 1 hereto. And 6

failing to release him from prosecution and detention in the circumstances referred to in paragraph 10 A above and more specifically the fundamental constitutional rights guaranteed under Articles 7, 8, 11, 12, 13, 16, 19 and 21 and the undue delay of the plaintiffs trial contrary to Article 12(1) (b) of the Constitution and failing to release him from prosecution and detention in the circumstances referred to in paragraph 10 A above ‘

[6] The defendants admitted that the plaintiff was detained as alleged, but denied all the other allegations and more specifically that the facts and circumstances were occasioned by the wrongful, unlawful and negligent violation or infringement of the constitutional rights of the plaintiff.

[7] This court as per Christiaan AJ, dismissed the main claim for wrongful and malicious institution of the prosecution. The court, however, upheld the alternative claim in respect of malicious continuation of the prosecution without reasonable and probable cause and did not adjudicate on the further alternative claim based on constitutional damages. Disenchanted with that finding, the defendants appealed to the Supreme Court. On 28 February 2019, the Supreme Court set aside the finding of this court as per Christiaan AJ upholding the plaintiff’s claim based on malicious continuation of the prosecution without reasonable and probable cause. The question whether the plaintiff should be awarded constitutional damages was then referred back to High Court for adjudication

[8] When the matter came before this court, the court was informed that the parties have agreed that the question of liability and quantum be separated and liability be argued first and since the parties have closed their respective cases that issue would simply be addressed in argument based upon the record of evidence. Accordingly, what was argued before me was whether the plaintiff has made out a case for holding the defendants liable for constitutional damages.

The evidence tendered at the trial relevant to the issue of constitutional damages

[9] The plaintiff testified that he was arrested on 16 March 2000. He was 42 and a farmer in the in the now Zambezi Region. After his arrest he was taken to Katima 7

Mulilo Police station where he was assaulted by members of the police and other government officials and subjected to humiliating conduct in an attempt to extract a statement from him. Thereafter, he was taken to the Grootfontein Military Base on 18 March 2000. On 29 April 2000 he was handed over to the Namibian Police. On 29 April 2000 he was taken to Grootfontein Prison and on 2 May 2000 he appeared in the Grootfontein Magistrate’s court. He testified that he did not apply for bail as he could not afford a lawyer. At a later stage he did not apply for bail as he was informed that his co-accused, Geoffrey Mwilima and other co-accused applied for bail, but were unsuccessful because of the seriousness of the charges. He testified that he was wrongfully arrested without a warrant and detained unlawfully from 16 March 2000 up to 2 May 2000 and the above referred conduct constituted a gross violation of his constitutional rights. He further testified that the prosecuting authority did not have sufficient information at their disposal which substantiated the 277 charges and consequently justified his prosecution on all the charges. He further testified that the second defendant ought to have known by March 2006 that there will be no further witnesses available who could further had implicated him in the commission of the offences he was charged with and despite knowing that, the second defendant continued to prosecute him without a proper basis and that conduct continued even beyond November 2011, when it became clear that the state had no evidence leading to his conviction. On 11 February 2013 he, together with another 42 of his co-accused where discharged in terms of section 174 of the CPA. Adv. Walters who was the Acting PG at the time and who signed the indictment testified for the plaintiff on subpoena. He testified that looking back they should have separated the trial because that would have been the best way to deal with the trial. He testified that only three prosecutors were assigned to the case as they did not have enough prosecutors. He further testified that it is difficult for a prosecutor to determine the length of a case as there are so many factors which could influence the length of a case.

[10] Detective Chief Inspector Simasiku testified for the defendants. He was appointed to the high treason unit on 2 August 1999. He testified that during the investigation information was received that the plaintiff, after the attacks, provided food to the rebels who were still at large. He further testified that an emergency road block 8 was manned at Lizauli area where the plaintiff and two others were arrested and an AK 47 assault refile and food were found in the vehicle in which they were travelling.

[11] Witness, Mr. July testified that he was the Deputy PG when he joined the prosecution team on the high treason trial. They considered the evidence in the police docket against the plaintiff based on the indictment signed in 2001 and they were satisfied that there was a prima facie case against the plaintiff. He testified that the plaintiff was discharged in terms of section 174 of the CPA, not because of a lack of reasonable and probable cause when the prosecution was instituted, but because the witnesses who gave incriminating statements against him did not identify him when they testified including his ex-wife.

[12] Mr. July further testified that the reason why the trial took so long to finalize was because the Caprivi Treason Trial was exceptional, and its magnitude unprecedented in the legal history of this country. One hundred and twenty six (126) accused persons were charged on 278 counts, most of them being serious, based on the doctrine of common purpose/conspiracy, 379 witnesses testified on behalf of the state and more than 900 witness statements had to be considered. All that contributed to the length of the duration of the trial. In addition most of the time before the commencement of the trial was taken up by pretrial proceedings such as legal aid applications and request for further particulars to the indictment in respect of 122 accused persons. The replies to the requests took time and were only provided in September 2003. The trial was scheduled to start on 27 October 2003 and the plaintiff and his co-accused gave notices that they would be challenging the court’s jurisdiction to hear the case. The High Court delivered its judgment on the jurisdiction challenge in favour of some accused and the State appealed against that decision and only in July 2004 did the Supreme Court deliver judgment on the issue of jurisdiction. He testified that further delays were caused by request for postponements by the state and the defense ,by withdrawals of defense counsel and new counsel coming on board who needed more time to study the records, witnesses who had to be collected from villages in the Caprivi (Zambezi) Region, unavailability of witnesses for various reasons, accused persons becoming sick, the prosecution team being involved in a tragic car accident 9 causing the death of one of the prosecutors and others being seriously injured, including himself and needed lengthy period of time to recover.

[13] Mr. July further testified that the PG could not have stopped the prosecution by March 2006, as not all witnesses had testified by the end of March 2006. He further testified that the PG could not stop the prosecution against the plaintiff, neither could the employees of the PG close the state’s case against the plaintiff on or before the end of March 2006 or within a reasonable time thereafter because by the end of March 2006 the PG or her employees were not in a position to know whether all the evidence that could implicate the plaintiff had been presented. He further testified that the prosecutors did not continuously perform appraisals of the evidence provided by the witnesses during the course of the trial as that was humanly impossible, if regard is had to the number of accused persons, the number of witnesses who testified, the complexity and conduct of the case. That would have delayed the finalization of the trial for an extended period of time. He further testified that by November 2011 the state had almost concluded its case and was confident that sufficient evidence was led to put the plaintiff on his defense and to convict him on one or more of the charges preferred against him. He testified that the prosecution could not stop the prosecution against the plaintiff because there were instances where witnesses implicated certain accused persons that they did not refer to in their written statements.

Submissions by the plaintiff

The decision to prosecute all the accused in one trial

[14] Counsel argued that the failure to separate the trial impacted significantly on the duration of the trial. Counsel argued that Adv. Walters testified that had the prosecution separated the trial of the accused between those who committed serious crimes and those who committed less serious crimes, the trial would not have taken more than 10 years. Counsel also relied on the evidence of Mr. July that there were three groups of accused ,namely, the Attackers, the Leaders and the Supporters and had the prosecution decided to group the attackers into one group as part of a separate trial, and to lump the leaders and supporters into another group ,the trial could have 10 been concluded much earlier, but it was agreed that they would not separate the trial since it was considered that the logistics of conducting separate trials would be too difficult. The failure to separate the trials therefore contributed to the plaintiff’s inordinate incarceration and thus violated his right to have his trial concluded within a reasonable time.

Failure to review the evidence for 6 to 10 years

[15] Counsel submitted that Mr. July testified that when he and Mr. January came on board the prosecution team in 2003, they reviewed each separate docket prior to the indictment being signed by Adv. Walters and the trial commencing. He further testified that due to the number of the accused and the number of witnesses to be led as part of the state’s case it was humanly impossible to review the evidence which had been led in respect of the charges against the individual accused. Only in November 2010 was an appraisal done of the testimonies led in the state’s case and the prosecution team requested the police to gather further evidence which they did by end of January 2011, which was successfully objected to by the defense. Counsel argued that if there had been an appraisal done of the evidence against the plaintiff at any stage during this period (6 to 10 years), it would have become evident to the prosecution to either stop the prosecution of the plaintiff or to separate the trial because of the failure of the prosecution to gather any further credible evidence against the plaintiff, had that been done, the prosecution would have realized that they had no evidence against numerous accused and could have at a much earlier date stopped the prosecution against such accused and that would have shortened the trial.

Common purpose and /or conspiracy

[16] Counsel submitted that the plaintiff was prosecuted on the basis of the doctrine of common purpose and or conspiracy to commit high treason and the three witnesses who testified against him failed to identify him and the remaining witness did not give cogent evidence of the plaintiff’s association with the commission of the offences and therefore there could thus be no suggestion that the state had any evidence to implicate the plaintiff in the commission of high treason or any other offence whether 11 it be by way of direct involvement or an act of association sufficient to satisfy the requirements in regard to common purpose and/or conspiracy. This fact would have been manifestly obvious to the prosecution if they had done a proper review of the evidence led and the further available evidence in the docket in respect of the plaintiff in November 2011. By failing to do so the plaintiff was unnecessarily detained on trial for a further period of 15 months’.

[17] Counsel further argued that the failure to hold an identification parade in respect of the witnesses who were to testify against the plaintiff had potentially negative consequences for the plaintiff because, as I understood the argument, the witnesses may not have identified the plaintiff and he may not have been prosecuted on all the charges that were preferred against him.

Lack of human capacity

[18] Counsel argued that both Adv. Walters and Mr. July testified that lack of prosecutors hampered their ability to review the dockets and therefore contributed to the trial not being concluded speedily, but there is no evidence that the prosecution requested for more prosecutors. It was the prosecution’s duty in terms of Article 88(2) of the Constitution to insist on being provided with sufficient human resources and the PG to secure such resources. As dominus litis, the prosecution exhibited a disregard for the plaintiff’s constitutional rights principally, Article 12 - the right to a fair trial, and a right to have his case finalized within a reasonable time.

[19] Counsel further argued that even if there was no separation of the trial and based upon how the state evidence unfolded, it must have been clear to the persecution by the latest November 2011 that there was at best, a weak case against the plaintiff, which meant that the prosecution should immediately have sought to stop the prosecution against the plaintiff and by failing to stop the prosecution, the plaintiff’s constitutional rights were violated. Counsel argued that his trial was unreasonably delayed and resulted in the violation of his constitutional rights and therefore is entitled to constitutional damages. Counsel relied on the case of MEC v Kate 1 where Nugent

1 MEC v Kate 2006 (4) SA 478 (SCA) 483 at para 33 12

JA as he was then, said after considering a number of common law remedies for the unreasonable delay in considering the claimant’s application for a disability grant, found that:

‘In my view the only appropriate remedy in the circumstance is to award constitutional damages to compensate Kate for the breach of her right’

[20] Counsel, accordingly, argued that in the circumstances of this matter the court should award damages on the basis of the violation of the plaintiffs aforesaid constitutional rights and freedoms, as an aggrieved person as contemplated by Articles 25(3) and 25(4) of the Constitution.

[21] Counsel further relied on the case Malama - Kean v Magistrate, District of Oshakati and Another2, where the court held that a delay of 16 months would in most cases constitute an ‘unreasonable delay’ provided the state is responsible for it. The court further said:

‘In my respectful view, the pre-trial hardship and a certain amount of prejudice was caused in part by the wrong and negligent conduct of the investigator. In such circumstances, the Court would be entitled to make an appropriate order allowing some relief to the applicant under art 25(3) read with art (5) of the Namibian Constitution.’ Counsel argued that ‘it thus follows that a breach of an accused’s Article 12 rights would entitle him or her to constitutional damages.’

[22] Counsel argued that this case concerns harm suffered by the plaintiff due to his long and unnecessary incarceration, as well as the insufficiency of the steps taken by the prosecution to safe guard his right to a fair trial and his further rights in terms of the Constitution. It involves the question as to whether the conduct of the prosecution was wrongful.

[23] Counsel further submitted that it is this conduct which violates a number of constitutional rights as it offends not only against the plaintiffs Article 12 rights, but also a number of other fundamental rights including Article 8 - respect for human

2 Malama - Kean v Magistrate, District of Oshakati and Another 2002 NR 413 (SC) 13 dignity in judicial proceedings and the protection from degrading treatment. This conduct is ‘egregious’ requiring judicial intervention in the form of a ruling that the defendants are liable to pay damages to the plaintiff under the Constitution.

[24] In conclusion counsel argued that judgment should be granted for the plaintiff in respect of the claim for constitutional damages, more particularly in finding that the defendants are liable for such damages.

Submissions by defendants

[25] Counsel for the defendants argued that the net result of the findings of the Supreme Court is that the prosecution of plaintiff by the PG was lawful and therefore plaintiff cannot in these proceedings re-litigate the lawfulness of the decision to prosecute him because the Supreme Court said that, the prosecution was lawful from its inception up until the section 174 stage

[26] According to counsel, that finding by the Supreme court is important because it restricts the inquiry before this court, which is to determine whether the criminal trial was unreasonably delayed by the prosecution, and if so, whether constitutional damages constitute necessary and appropriate relief.

[27] Counsel further argued that the other complaints such as the failure to review the evidence, non-identification by witnesses, stopping the prosecution in terms of section 6(b) of the CPA cannot be entertained by this court in the face of the SC judgment.

[28] Counsel further argued that it also disposes of the argument that the PG acted unlawfully by not reviewing the evidence, by not closing the state’s case and moving for the plaintiff’s discharge or release from prosecution and detention in terms of Article 12, 7, 8, 11, 13 and 21 of the Constitution.

[29] Counsel argued that to succeed with the claim for constitutional damages, plaintiff must show that, in addition to the claim for malicious prosecution and the rights 14 he enjoyed in the criminal trial, in terms of the CPA and the Constitution, it is necessary and appropriate to award constitutional damages as contemplated by articles 25(3) or 25(4) of the Constitution.

[30] Counsel argued that to award constitutional damages is neither necessary nor appropriate because unlawful prosecutions are adequately compensated by the delict of malicious prosecution under the common law, the CPA has sufficient safeguards that an accused person can employ to safeguard his right to a fair trial. These include: applying for separation in terms of section 157(2) of the CPA, stopping of prosecution in terms of section 6(b) of the CPA and plaintiff could have applied to be released from prosecution in terms of Article 12(1) (b) of the Constitution.

The provisions of Article 25(3) and 25(4)

[31] Counsel argued that the plaintiff’s claim for constitutional damages is based on art 25(3) and 25(4) of the Constitution. These are the subsections which constitute the court as the guardian of constitutional rights and freedoms and which empower the court, in appropriate circumstance, to award monetary compensation where there has been an unlawful denial or violation of those rights and freedoms.

[32] The Article make it plain that, to succeed, the plaintiff must demonstrate that holding defendants liable in damages is necessary and appropriate to secure him the enjoyment of his rights.

[33] Article 25(4) states:

‘The power of the court shall include the power to award monetary compensation in respect of any damage suffered by aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of particular cases.’

[34] Counsel argued that monetary compensation will only be awarded in terms of this Article in respect of any damage suffered by an aggrieved person whose right was violated, where the court considers such an award to be appropriate in the 15 circumstances. In this circumstances, counsel submitted, it is not appropriate because the plaintiff has other remedies to vindicate his rights.

The malicious prosecution claim is an effective remedy

[35] Counsel further argued that there is no need for an additional claim for constitutional damages when the plaintiff’s rights can be effectively vindicated under the common law through the action of malicious prosecution. Counsel relied on the Fose v Minister of Safety and Security 3 matter where the court held that:

‘In the present case there can, in my view, be no place for further constitutional damages in order to vindicate the rights in question. Should the plaintiff succeed in proving the allegations pleaded he will no doubt, in addition to a judgment finding that he was indeed assaulted by members of the police force in the manner alleged, be awarded substantial damages. This ,in itself, will be a powerful vindication of the constitutional rights in question requiring no further vindication by way of an additional award of constitutional damages.’

[36] Counsel further argued that the complaint of egregious conduct forms the basis for constitutional damages claim. The constitutional damages claimed are the same as the ones claimed for malicious prosecution. They are identical in nature and purpose. According to counsel, there is absolutely no need for an additional claim for constitutional damages when the plaintiff’s rights can be effectively vindicated under the common law through the action of malicious prosecution. This, in itself, will be a powerful vindication of the constitutional rights in question requiring no further vindication by way of an additional award of constitutional damages. Counsel submits that on that ground alone the claim for constitutional damages stands to be dismissed.

Awarding constitutional damages is inappropriate

[37] Counsel argued that awarding constitutional damages is inappropriate because it will give rise to a situation where the Supreme Court found that the

3 Fose v Minister of Safety and Security 1997(3) SA 786 (CC) para 67 16 prosecution to be lawful, while this court have to find that it was not , if it is to uphold the claim for constitutional damages. Judicial policy dictates that this is not possible.

[38] Counsel argued that were there is an effective remedy, a claim for constitutional damages is not appropriate. He relied on the Fose v Minister of Safety and Security the South African Constitutional Court said4:

‘Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, and interdict, mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights.’

The court further stressed that given the flexibility of the common law,

‘In many cases the common law will be broad enough to provide all the relief that would be “appropriate” for a breach of constitutional rights.’

Counsel argued that the claim for malicious prosecution, which was dismissed by this court per Christiaan AJ is an effective remedy.

Trial within a reasonable time

[39] Counsel argued that Article 12(1) (b) specifies both the right and the remedy for a breach. The remedy is that the accused is to be released from trial. The remedy sought (constitutional damages) is therefore inappropriate. Constitutional damages will not usually be awarded where the law provides another remedy. The plaintiff did not exercise his right as provided for by Article 12(1) (b) and he did not explain why he did not do so. The plaintiff did also not exercise his right to seek separation of trials as provided for by sections 155 and 157(2) of the CPA and he also did not explain why he did not seek a separation. In conclusion counsel submitted that the plaintiff’s claim be dismissed.

4 Fose case supra at para 19 17

Analysis

[40] The plaintiff, as an aggrieved person, had various remedies available to protect and enforce his rights and freedoms as provided for by Articles 12(4), 25(2), (3),(4) of the Constitution as well as remedies provided for by the CPA.

[41] The plaintiff had the right to apply to be released on bail at any stage during the trial, but he failed to do so. The fact that his co-accused was denied bail ,was not reason enough for him to conclude that he would not be granted bail as the court had to consider, amongst others, the extent of his involvement or the role he played in the crimes committed, his failure to apply for bail may have contributed to his lengthy detention.

[42] The plaintiff also submitted that the failure of the state to separate the trial resulted in the trial being inordinate lengthy and therefore violated his constitutional right to be tried within a reasonable time. Mr. July testified that the prosecution could not separate the trial because of lack of human capacity and the logistical challenges of running two separate trials. There is no evidence on record that the plaintiff applied to have the trial separated as provided for by section 157 of the CPA. Section 157 (2) provides:

‘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 application of the prosecutor or 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.’(My emphasis)

That remedy was available to the plaintiff to assert and vindicate his right to a fair trial, but he chose not to employ that safeguards. I agree with the submissions by the defendants that given the complexity and magnitude of the trial, separation would have caused a further delay, required more prosecutors and money and that would not have been in the interest of society and the administration of justice. In R v Bagas5 the court

5 R v Bagas 1952(1) SA 437 (A) at 441F 18 held that it is usually in the interests of the administration of justice that persons charged with the same counts should be tried together.

[43] The plaintiff further argued that the failure to regularly review or appraise the evidence against the plaintiff resulted in the inordinate delay of the trial. Had the prosecution done that, they would have realized that there was no further credible evidence implicating the plaintiff and that would have resulted in the earlier release of the plaintiff. Mr. July, however testified that because of the number of the accused and the witnesses involved in the trial, it was humanly impossible to review the evidence regularly against each accused persons.

[44] This court agrees with the submissions by the defense that given the magnitude of the case, the number of the accused and the witnesses’ regular appraisal of the evidence against each of 122 accused persons would have further delayed the trial.

[45] Counsel for the plaintiff argued that the unreasonable delay in finalizing his trial infringed his constitutional right to a fair trial as provided for under Article 12(3) (4) of the Constitution and is entitled to constitutional damages. Counsel for the plaintiff relied on the case of MEC v Kate6 where Nugent JA said:

‘In my view the only appropriate remedy in the circumstance is to award constitutional damages to compensate Kate for the breach of her right’

[46] Counsel accordingly, argued that in the circumstances of this matter the court should award damages on the basis of the violation of the plaintiffs aforesaid constitutional rights and freedoms, as an aggrieved person as contemplated by Articles 12(1)(a),12(1)(b) 25(3) and 25(4) of the Namibian Constitution. That case is clearly distinguishable from this one in the sense that there were other effective remedies available to the plaintiff to protect and enforce his constitutional rights during the trial and he did not make use of or avail himself of any one of them to safeguard his constitutional rights.

EC v Kate 2006 (4) SA 478 (SCA) 483 at para 33 19

[47] The plaintiff had the remedy to apply to be released as provided for by Article 12 (1) (b) of the Constitution to protect and enforce his right to a fair trial. Article 12 (1) (b) provides:

‘A trial referred to in Sub-Article (a) hereof shall take place within a reasonable time, failing which the accused shall be released.’

[48] The plaintiff was legally represented and there is no reason why that remedy was not applied for. Counsel for the defendants argued, correctly in my view, that Article 12(1) (b) specifies both the right and the remedy for a breach. The remedy sought (constitutional damages) is therefore inappropriate because the Constitution provides for a remedy. Relying on the Fose matter counsel argued that constitutional damages will usually not be awarded where the law provides for another remedy. I agree with counsel for the defendants that the plaintiff, who was legally represented, did not at any time seek to exercise his right and remedy under Article 12(1) (b). Counsel for the plaintiff further relied on the Malama-kean v Magistrate, District of Oshakati and Another 7 where the court held that a delay of 16 months would in most cases constitute an unreasonable delay provided that the state is responsible for it. The court further held that:

[49] Counsel submitted that accordingly, a breach of an accused’s Article 12 rights could entitle him or her to constitutional damages. However in this case, the Supreme Court found that the initiation and continuation of the prosecution of the plaintiff up to the end of the state’s case was justified and therefore there was no ‘wrong and negligent conduct’ on the part of the prosecution as was the case in Malama-Kean.

7 Malama-kean v Magistrate, District of Oshakati and Another 2002 NR 413 (SC) at p. 441 F-G 20

[50] Another remedy that was available to the plaintiff was the claim for malicious prosecution, which this court (per Christian AJ) dismissed and the plaintiff did not appeal. In Law Society of South Africa and Others v Minister of Transport8, Moseneke DCJ said:

‘It seems clear that in an appropriate case a private-law delictual remedy may serve to protect and enforce a constitutionally entrenched fundamental right. Thus a claimant seeking “appropriate relief” to which it is entitled, may properly resort to common-law remedy in order to vindicate a constitutional right’

Counsel for the defendants argue, correctly in my view, that were there is an effective remedy to vindicate the rights of the plaintiff then there is no need for constitutional damages.

[51] The existence of effective remedies was an important consideration for the rejection of the constitutional damages claim In Pieter Petrus Visagie v Government of the Republic of Namibia and Others9, in that case the Supreme Court considered whether liability should be extended to the state for the mala fide, malicious or fraudulent conduct of a judicial officer in terms of art 25(3) and art 25(4) of the Constitution and held that:

‘In the jurisdictions where the constitutional remedy of compensation against the State was recognized for the conduct of the judicial branch, it was against the backdrop of the absence of any remedy for the violation of the rights and freedoms of an aggrieved person. In Chapman, Elias CJ accepted (para 50) that an existing tort (delict) under the standard civil process may provide effective remedy. According to the Chief Justice:

“…effective remedy will be in some cases be able to be achieved within the legal process in which the breach occurred… In many cases where there has been a breach of fair trial rights, correction on appeal within the same proceedings will be effective remedy.”

8 Law Society of South Africa and Others v Minister of Transport 2011(1) SA 400(CC) at para 91 9 Pieter Petrus Visagie v Government of the Republic of Namibia and Others (SA 34 2017) [2018] NASC 411 at para 92 and 93 21

Elias CJ also accepted that a direct remedy in public law only becomes an option if an existing remedy and the available remedial options are ineffective: Chapman para 51. Mr. Visagie must satisfy us that the existing diet of remedies under Namibian law is ineffective to vindicate deprivation of his right to liberty.’

[52] I agree with the sentiments expressed therein and must add that the plaintiff failed to satisfy this court that the ‘existing diet of remedies’ under Namibian law is ineffective to assert and vindicate his constitutionally entrenched rights.

[53] In Fose v Minister of Safety and Security10 the South African Constitutional Court said:

In this case, there were ‘appropriate relief’ available to the plaintiff during the trial to secure the protection and enforcement of his rights, but did not make use of it.

Has the plaintiff made out a case for constitutional damages?

[54] The plaintiff’s claim for constitutional damages is based on Article 25 (2) (3) and 25(4) of the Constitution. Article 25 (2) of the Constitution provides:

‘Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such right or freedom….’

Article 25(3) provides:

10 Fose v Minister of Safety and Security 1997(3) SA 786(CC) para 19 22

‘Subject to the provisions of this Constitution ,the Court referred to in Sub- Article (2) hereof shall have the power to make all such orders as shall be necessary and appropriate to secure such applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or that grounds exist for the protection of such rights or freedoms by interdict.’ (My Emphasis)

Article 25 (4) provides:

‘The power of the Court shall include the power to award monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms. Where it considers such an award to be appropriate in circumstances of particular cases.’(My emphasis)

[55] From the proper reading of Articles 25(3), (4) of the Constitution, only when the infringement of the rights and freedoms are unlawful may the court award monetary compensation where it considers such an award to be appropriate in the circumstances of particular cases. However, in this case the Supreme Court in Minister of Safety and Security and 2 Others v Richwell Kulisesa Mahupelo11 found that the prosecution of the plaintiff throughout was lawful. It found as follows at para 85:

‘I thus agree with the appellants in their submissions that although the criminal court found that there was insufficient evidence to secure a conviction for the purpose of criminal law, there was evidence against the respondent (plaintiff) establishing a reasonable and probable cause on the part of the prosecution not only to initiate the prosecution, but also to continue with it right up to the end of the State case. ‘(My emphasis)

[56] Although that finding was in the context of establishing a reasonable and probable cause on the part of the prosecution, that finding is equally applicable in the

11 Minister of Safety and Security and 2 Others v Richwell Kulisesa Mahupelo Case No: 7/2017 delivered on 28 February 2019 paras 85, 91 and 92 23 context of a claim for constitutional damages as the cause of action arose out of the same facts. The Supreme further found at para 92 that:

‘I agree with the argument advanced by the appellants that when the pleadings and evidence are assessed in their entirety, the fact that certain witnesses who had named the respondent (plaintiff) in their sworn statements failed to identify him during the trial does not mean that there was no exculpatory evidence against the respondent. The failure to identify the respondent does not in itself train smash the veracity of the testimonies of the witnesses as to what they alleged the respondent had done. I am therefore of the considered opinion that based on the case pleaded by the appellants, the PG and her delegates had an honest belief founded on reasonable grounds that the continuation of the prosecution was justified.’

[57] Consequently, where the Supreme Court found that the prosecution of the plaintiff by the prosecution team not only to begin the prosecution, but also to continue with it right up to the end of the state’s case lawful, then it follows that his rights were not unlawfully violated and he has not made out a case for constitutional damages.

[58] I agree with the submissions by the defendants that where the Supreme Court found that the prosecution of the plaintiff was lawful, awarding constitutional damages is inappropriate because it will give rise to a situation where the Supreme Court finds that the prosecution of the plaintiff from the beginning to the end was lawful, while this court has to find that it was not, if it is to uphold the claim for constitutional damages. In my considered view that will be contrary to the doctrine of stare decisis and Article 81 of the Constitution and as counsel for the defendants put it, ‘judicial policy dictates that this is not possible’.

Conclusion

[59] The plaintiff had various effective remedies under the Constitution and the CPA to protect and enforce his constitutionally entrenched rights, but he failed to avail himself of those remedies and cannot now approach this court seeking constitutional damages. In addition his constitutional rights were not unlawfully infringed. His claim for constitutional damages, can therefore not succeed. 24

[60] I accordingly make the following order:

1. The plaintiff’s claim for constitutional damages is dismissed.

2. There is no order as to costs.

______

G N NDAUENDAPO Judge

APPEARANCES

FOR THE PLAINTIFF Adv. Corbett, SC assisted by Adv. Hengari, instructed by Kangueehi & Kavendjii Inc.

FOR THE DEFENDANTS Adv. Semenya, SC and Mr. Marcus Instructed by Government Attorney