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I 56/2014 in the Matter Between: RICHWELL

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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. 3 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. 4 [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.
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