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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-CIV-ACT-OTH-2018/01922
In the matter between:
ALI MOUSSA PLAINTIFF
and
PRIMUS AMWAAMA FIRST DEFENDANTMARTTY MBEHA MBUKUSA SECOND DEFENDANTTHE PROSECUTOR-GENERAL THIRD DEFENDANT
Neutral citation: Moussa v Amwaama (HC-MD-CIV-ACT-OTH-2018/01922) [2020]
NAHCMD 438 (25 September 2020)
Coram: MILLER AJ
Heard: 12, 15, 16, 17, 18, 19, 22 & 29 June 2020
Delivered: 25 September 2020
Flynote: Law of delict – Claim of wrongful and unlawful arrest against a police
officer – Found that the police officer acted in his official capacity – Found that section
39(1) of the Police Act 19 of 1990 is applicable – The section provides that any civil
Reportable
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proceedings against the State or any person in respect of anything done in pursuance
of the Act shall be instituted within 12 months after the cause of action arose – Notice in
writing of any such proceedings and of the cause thereof shall be given to the defendant
not less than one month before it is instituted – Provided that the minister may at any
time waive compliance with the provisions of that subsection – Found that the
proceedings were not instituted within 12 months after the cause of action arose –
Common cause that the required notice was not given – Claim against the first
defendant dismissed on that basis.
Summary: Plaintiff arrested by the first defendant, a police officer without a warrant of
arrest – Plaintiff added to a robbery charge as an accused – Plaintiff claims that the
arrest was wrongful and unlawful – Plaintiff contended that the police officer did not act
within the course and scope of his work or official capacity – Police officer contends that
he was instructed by a public prosecutor to charge the plaintiff – Found that the police
officer acted within the course and scope of his work or official capacity – Found that
section 39(1) of the Police Act 19 of 1990 is applicable – Found that the proceedings
were not instituted within 12 months from the date that the cause of action arose –
Found that the plaintiff failed to give notice in terms of that section as required – Claim
against the first defendant is dismissed on that basis.
Flynote: Law of delict – Claim of malicious prosecution against the Prosecutor-
General – Elements of malicious prosecution – What the plaintiff must prove –
Defendant must have acted without reasonable and probable cause – Defendant must
have been actuated by an improper motive or malice (or animo injuriandi).
Summary: Public prosecutor knew that the complainant left Namibia and relocated to
Lebanon in 2012 – Public prosecutor failed to put that information before court – Public
prosecutor continued to prosecute and oppose bail – Public prosecutor continued with
the prosecution of the plaintiff until 2015 when the charges against the plaintiff were
withdrawn – Found that the continued prosecution of the plaintiff from 2012 until 2015
became malicious – Found that the Prosecutor-General is liable for the malicious
prosecution of the plaintiff from the year that the public prosecutor became aware that
the complainant has relocated to Lebanon to the year that the matter was withdrawn.
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ORDER
1. The claim against the first defendant is dismissed with costs.
2. The claim against the third defendant succeeds in part, in so far as it is limited to
the continued prosecution of the plaintiff during the period between the year 2012
and 2015 when it was established that the complainant had returned to Lebanon,
to the knowledge of the public prosecutor.
3. The third defendant is ordered to pay the plaintiff’s costs, which will include the
costs of one instructing counsel and one instructed counsel.
JUDGMENT
MILLER AJ:
Background of the matter
[1] The plaintiff in this matter, Mr Ali Moussa was arrested by the first defendant, Mr
Primus Amwaama, a police officer on 7 May 2007 without a warrant of arrest at Katima
Mulilo Police Station in the Zambezi Region, following an investigation of a robbery case
under CR Number 44/05/2006 that happened on 10 May 2006. At the time of the arrest
the accused had been in custody since 17 March 2007 at the same police station in
respect of another case registered under Katima Mulilo Police Station CR Number
110/04/2006. The plaintiff appeared before a magistrate for the first time in respect of
the robbery charge under CR Number 44/05/2006 on 8 June 2007, and he was added
to that charge as the 9th accused person. The matter was postponed several times in
the District and Regional Courts for several reasons, such as incomplete investigations,
4
the unavailability of some of the accused persons, unavailability of lawyers,
unavailability of the Prosecutor-General’s decisions after a plea in terms of section 119
of the Criminal Procedure Act 51 of 1977 and due to pending outcome of legal aid
applications by some of the accused persons. The matter was also postponed several
times for plea and trial in the Regional Court, but the plaintiff never pleaded, and the trial
never commenced. The plaintiff brought several unsuccessful bail applications in the
District and Regional Court and an application for the separation of trial in the Regional
Court was also unsuccessful. Thereafter on 12 December 2014 the plaintiff was granted
bail in the High Court on appeal, and he was consequently released on 19 December
2014. On 30 March 2015, the plaintiff brought an application before the High Court
under Case No. A 73/2015 to stay the criminal proceedings pending in the Katima
Mulilo Magistrate’s Court, and the matter was settled out of court. Thereafter, the
criminal proceedings against the plaintiff were terminated on 21 May 2015 before the
trial commenced when the charges against him were withdrawn in the Regional Court.
Plaintiff’s claim
[2] The plaintiff instituted an action against the first, second and third defendants on
21 May 2018, claiming as follows in his particulars of claim:
Claim 1: That on or about 2 May 2007, and at or near Katima Mulilo Police
Station in the Zambezi Region, the first defendant – without a warrant
and reasonable or probable cause – wrongfully, unlawfully,
intentionally and maliciously arrested the plaintiff.
Claim 2: That the third defendant and or her duly delegated personnel,
wrongfully, unlawfully, intentionally, maliciously, alternatively
negligently and contrary to Articles 7, 8, 11, 13 and 12 of the
Constitution on 8 June 2007 (until their termination on 21 May 2015),
set the law in motion against the plaintiff and continued to do so by
prosecuting the plaintiff for the offences, without reasonable and
probable and or probable cause and without having sufficient
information at their disposal (in respect whereof they had any
5
reasonable belief in the truth thereof) which substantiated such
charges or justified the prosecution of the plaintiff on such charges.
Claim 3: That the third defendant and or her delegated personnel wrongfully,
unlawfully, intentionally, maliciously (without reasonable and or
probable cause), alternatively negligently and contrary to the
plaintiff’s rights in terms of Articles 7, 8, 11, 12 and 13 of the
Constitution, continued to prosecute the plaintiff for the offences by
virtue of the facts and circumstances set out in the particulars of
claim.
Claim 4: That despite the circumstances set out in the particulars of claim, the
third defendant and or her delegated personnel, wrongfully,
unlawfully, intentionally, maliciously (without reasonable and or
probable cause) and contrary to Articles 7, 8, 11, 12 and 13 of the
Constitution continued to prosecute the plaintiff until 21 May 2015.
That the continuation of the prosecution referred to was (without
reasonable and probable cause) wrongful, unlawful intentional,
malicious, alternatively negligent and contrary to the Articles 7, 8, 11,
12 and 13 of the Constitution and continued in circumstances where
the third defendant and or her delegated personnel reasonably ought
to have stopped the plaintiff’s prosecution in terms of section 6(a) of
the Act and on 8 June 2007, or within a reasonable time thereafter.
Alternatively, reasonably ought to have caused the plaintiff’s release
from prosecution and or detention (on bail) on 8 June 2007, or within
a reasonable time thereafter, alternatively at the end of December
2008 or within a reasonable time thereafter, alternatively on or at the
end of June 2011 or within a reasonable time thereafter, in terms of
(or in order to safeguard or prevent a violation of his rights under)
one or more or all Articles 7, 8, 11, 12 and 13 of the Constitution.
Claim 5: That the third defendant and or her delegated personnel wrongfully,
unlawfully, intentionally, alternatively and negligently violated the
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plaintiff’s rights in terms of Article 12 of the Constitution by failing to
afford the plaintiff a trial within a reasonable time in respect of the
offence, which violation is actionable in terms of a claim of and for
damages as contemplated in terms of Article 25(3) or 25(4) of the
Constitution.
[3] At the beginning of the proceedings, the parties asked the court to determine
liability and deal with the issue of quantum of damages at a later stage. The pre-trial
order listed the issues of fact as well as the issues of law to be resolved during trial. The
matter, as far as the second defendant is concerned was not pursued before me, and
he took no part in the proceedings.
[4] By agreement between the parties, the defendants were required to start with
their case. The defendants called two witnesses, being the investigating officer, Messrs
Primus Amwaama and a public prosecutor and Jatiel Mudamburi. The latter was not
involved in the decision to prosecute the plaintiff. He became involved in the matter at a
later stage, and for some time he acted as the prosecutor in the criminal proceedings
which had been instituted against the plaintiff. I proceed to summarize the evidence of
the witnesses called.
Mr Primus Amwaama’s testimony
[5] Mr Primus Amwaama testified that he was given a docket to investigate a case of
robbery, which led to him arresting the plaintiff in 2007 without a warrant of arrest after
he had conducted an investigation. He stated that at that time he was duty bound in the
Katima Mulilo jurisdiction, and that he acted within the course and scope of his
employment, but no notice was served upon his seniors when the current proceedings
were instituted by the plaintiff.
[6] In cross-examination, Mr Primus Amwaama confirmed that he had assaulted the
plaintiff in a separate incident that happened before the arrest of the plaintiff, which
consequently led to him being convicted of assault. He confirmed that he was convicted
of assaulting the plaintiff, but he stated that he does not know that the events that led to
7
the conviction on a charge of assault happened in November 2005. He confirmed that
the robbery incident happened on 10 May 2006. He denied that he stayed at an
accommodation establishment owned by the plaintiff called Saaf City without paying,
and he denied that he secured employment for his brother at Saaf City. He denied that
his relationship with the plaintiff deteriorated because he took money from the plaintiff’s
bar at Saaf City without his permission. He denied that he extorted money from the
plaintiff, but agreed that a case of extortion was opened against him by the plaintiff. He
denied having requested the plaintiff to withdraw the extortion case because it was
affecting his promotion. He denied having threatened to add the plaintiff to a charge of
terrorism. I asked if a case of extortion was in fact opened by the plaintiff against him,
and he answered that it was indeed opened against him but that was after the plaintiff
was charged with robbery. He denied that the plaintiff opened the case of extortion
against him before he charged the plaintiff with robbery, and further denied that the
case of extortion was only registered against him when the plaintiff went on a hunger
strike while in custody. He denied being aware of the extortion charge at the time of the
investigation of the robbery. He stated that on 2 May 2007 he obtained a warning
statement from the plaintiff and sent the docket to the public prosecutor to read the
entries in Pol 3.1
[7] Mr Primus Amwaama further stated in cross-examination that he added the
plaintiff to the charge of robbery on a verbal instruction of a public prosecutor, but he
does not know the public prosecutor who gave the instruction for the plaintiff to be
added to the charge of robbery.2 When he was asked if the normal practice is for the
public prosecutors to give their instructions in writing, he responded that it is up to them
to decide how they want to give their instructions.3
[8] He further stated in cross-examination that the police docket contained all the
witness statements listed in paras 47.1 to 47.26 of his witness statement and presented
before court in this matter when he received it from the public prosecutor and that he
read the docket when he received it from the public prosecutor.4 He confirmed that the
1 Para 38 of Mr Primus Amwaama’s witness statement and p 38 of the transcribed court record.2 Page 40 of the transcribed court record.3 Page 40-41 of the transcribed court record.4 P 41 of the transcribed court record.
8
statement of the complainant contains no information that suggests that the plaintiff is
implicated. He disagreed that the cellphone profile print-outs do not suggest that the
plaintiff is implicated and replied that the cellphone profile print-outs are very important
because they show association.5 When asked by the court if the cellphone profile print-
outs show what the plaintiff and another accused in the robbery matter spoke about, he
responded in the negative. He denied knowing the cellphone number of the plaintiff and
also denied being aware that Mr Kombo, whom the plaintiff is alleged to have called,
was a taxi driver in Katima Mulilo.
[9] It was put to him in cross-examination that there was nothing to suggest that the
plaintiff had committed any offence and he responded that he had a reasonable
suspicion. He agreed that it is correct that the confession by Mr Charles Mandjolo
implicated other accused persons but his confession did not suggest that the plaintiff
had committed any offence.6 He disagreed in cross-examination that there is nothing in
the statement of Mr Kalaluka Sikananu that suggests that the plaintiff had committed
any offence by responding that there is a part about the robbery in the statement of Mr
Kalaluka Sikananu.7 He agreed that it is correct that the plaintiff was not subjected to
any identification parade and that he was not implicated by Mr Mandjoro in his
statement.8 The court asked the witness if he would have arrested the plaintiff with no
instruction from the public prosecutor and he responded that he would not have done
so. I also asked the witness why he did not arrest him in connection with the robbery at
the beginning and he responded that he did not do so because the evidence was not
clear and he did not have enough evidence. He stated that he became a police officer in
1992, and he knows that he should conduct his work in accordance with the law. Lastly,
he denied that he handed over the docket to Sergeant Antonius Gabriel because the
plaintiff lodged a complaint against him to his seniors. In re-examination he stated that
the statement of Mr Mbukusa implicates the plaintiff because it corroborates the other
evidence that was available.
Mr Jatiel Mudamburi’s testimony
5 Para 47.8 to para 47.12 of Mr Primus Amwaama’s witness statement.6 Para 47.17 of Mr Primus Amwaama’s witness statement.7 Para 47.21 of Mr Primus Amwaama’s witness statement.8 Para 47.10 of Mr Primus Amwaama’s witness statement.
9
[10] The second witness for the defendants’ case was Mr Mudamburi. He testified
that he was the public prosecutor who handled the case against the plaintiff by
representing the State in the Regional Court. He stated that the plaintiff brought a formal
application for the separation of trial before the Regional Court on 9 February 2010, and
that application was dismissed.9 He testified that on 8 July 2011 there was no evidence
placed before court that the complainant in the robbery matter has gone to Lebanon. He
further stated that from 2012 to 2015 he had no knowledge that the complainant would
no longer return to Namibia as a result of complications arising from the
operation/surgery he had in Lebanon. He further stated that no subpoena was served
upon the complainant through diplomatic channels during the period of 2012 – 2015,
and that there was no basis upon which the prosecution could have been stopped or the
matter could have been withdrawn.
[11] Mr Mudamburi testified that the brother of the complainant called Eiman informed
him in 2012 that the complainant had left for Lebanon, and that the same brother should
have contacted him again to inform him that the complainant will not return to Namibia
because of medical reasons. He informed the court that the information that the
complainant will not return to Namibia only came to him in April 2015 when the plaintiff
informed him. He further informed the court that the plaintiff faced a charge of robbery
and a charge of kidnapping, and that both charges were withdrawn in May 2015 on the
instance of the Prosecutor-General. He stated that although the complainants in the two
charges are different, the same evidence was required to secure a conviction on any of
the two charges. I may add that little, if any evidence was presented regarding the
charge of kidnapping.
[12] In cross-examination he informed the court that he only assumed duty at the
Katima Mulilo Magistrate’s Court in January 2009, and he does not know the public
prosecutor who took the decision for the plaintiff to be added to the robbery charge as
the 9th accused.10 He informed the court that the plaintiff pleaded in the District Court in
terms of section 119 of the Criminal Procedure Act 51 of 1977, and thereafter the
9 Page 81 - 82 of the transcribed court record.10 Page 88 of the transcribed court record.
10
docket was referred to the Prosecutor-General for a decision.11 He informed the court
that the matter was set down for plea and trial for the first time from 14 – 18 December
2009 but the plaintiff was not brought from Oluno Correctional Facility due to
transportation challenges and one accused was sick, while another accused applied for
legal aid, and as a result the matter was postponed again for plea and trial.12
[13] He conceded in cross-examination that the plaintiff’s name does not appear in
the witness statement of Mr Sleiman Hijazi, the complainant in the robbery charge and
the statement of Mr Bateme Alex Tubutame (Muyomba) who is the complainant in the
kidnapping charge13 nor is there evidence of what was spoken about in the cellphone
profile print-outs contained in the docket.14 He further agreed that there is no
handwriting analysis of the sketch plan that was found and allegedly drawn by the
plaintiff. He agreed that Mr Mbukusa’s statement was obtained almost 8 months after
the robbery incident. The statement was obtained on 12 March 2007, and the robbery
incident giving rise to the robbery charge happened on 10 May 2006. He was asked if
the conclusion that the plaintiff was the mastermind behind the robbery was based on
Mr Mbukusa’s statement, and he responded that amongst all the nine accused persons,
the plaintiff is the only person that knew the house of the complainant and how it is
structured, and he knew the business operations of the complainant because they had
an employer-employee relationship. He mentioned that although there is no mention of
the plaintiff’s name in the witness statements mentioned, there was circumstantial
evidence that was relied upon, and he added that there was enough evidence to
proceed with the prosecution of the plaintiff.
[14] He further stated in cross-examination that in his telephone conversations with
the brother of the complainant, they did not talk about the complainant going for
surgery. He further added that the same evidence for the charge of robbery was
required to secure a conviction on the charge of kidnapping. He further agreed that Mr
Tubutane and the complainant by the name Mr Hijazi did not identify anyone as a
suspect in the robbery case.
11 Page 94 of the transcribed court record.12 Page 95 of the transcribed court record.13 Page 97 of the transcribed court record.14 Page 99 of the transcribed court record.
11
[15] He said in cross-examination that the plaintiff would come to his office to make
calls because he was not allowed to make calls in custody. He further denied having
told the plaintiff that he does not have objection to granting him bail, but he could not do
so because Mr Primus Amwaama is opposed to it. He said that he had no knowledge of
that. He further said that he never conceded to granting the plaintiff bail because he was
facing a serious charge and there was enough evidence. He added that he had a
substantial and probable cause to prosecute after going through the docket, and that he
had to consult the Prosecutor-General before he could withdraw the matter. He stated
that there was enough circumstantial evidence to secure a conviction against all the
accused persons, and that there was prima facie evidence linking the plaintiff to the
offence, based on his analysis of the evidence contained in the docket.
[16] When his attention was drawn to the fact that the plaintiff raised an alibi in his
warning statement and shifted blame to the person that was implicating him, he
responded that he did not attach much weight to the evidence contained in the warning
statement when he took into consideration the totality of evidence. He further stated that
he disagreed with the investigating officer, Mr Primus Amwaama when he said that it
was not prudent to arrest the plaintiff at the time that the warning statement was taken.
Lastly, he stated that he does not know the public prosecutor who took the decision for
the plaintiff to be added to the charge of robbery as the 9 th accused. But he stated that
the decision to arraign the plaintiff in the Regional Court might have been taken by the
then Control Prosecutor at the Katima Mulilo Magistrate’s Court.
[17] The plaintiff was the only witness called to substantiate his claim. His evidence is
to the following effect.
Mr Ali Moussa’s testimony
[18] He testified that the first defendant, Mr Primus Amwaama abused his powers as
a police officer to make his life miserable before and during the case of robbery. He
informed the court that he met Mr Primus Amwaama and they became close friends. He
then allowed him to stay at his Saaf City Lodge which he was running as an
12
accommodation business and a club in Katima Mulilo. He informed the court that while
Mr Primus Amwaama was staying at his lodge, he allowed him to take food and drinks
on account from his business but he started abusing that process because he would not
pay at the end of the month.
[19] He informed the court that he employed the brother of Mr Primus Amwaama at
the lodge. He added that, one day Mr Primus Amwaama took all the money from the
business, which he returned the next day at the Criminal Investigation Department (CID)
Unit Commander’s office when plaintiff lodged a complaint. The plaintiff testified that
after that incident, his relationship with the first defendant became sour and they were
no longer on good terms. He informed the court that prior to that incident, he gave the
first defendant an amount of N$12 000.
[20] The plaintiff testified that in November 2005, he opened a case of extortion
against the first defendant, Mr Primus Amwaama at the Regional Commander’s Office,
after he gave Mr Primus Amwaama a cheque of N$9 000. He informed the court that Mr
Primus Amwaama then became angry and he came to the plaintiff’s business premises,
and he jumped over the counter, after which he grabbed the plaintiff by the neck. The
plaintiff informed the court that after that incident Mr Primus Amwaama was ordered not
to come near him or to communicate with him, but one day he came to the plaintiff’s
place of work and asked him to get into his car. He then asked the plaintiff to withdraw
the case because it will affect his career. He then drove towards the border of Zambia
and stopped near the University of Namibia Campus. The plaintiff informed the court
that Mr Primus Amwaama took out his police card and asked him where he was when
the United States of America was bombed. Thereafter he promised to arrest him and
add him to a charge.
[21] The plaintiff informed the court that Mr Primus Amwaama brought him to his
office on 2 May 2007, where he told him that there is a charge of robbery and that he
must choose to be charged or added to the charge of robbery.15 Mr Primus Amwaama
then took the plaintiff’s warning statement and informed him that he will be taken to
15 Page 154 of the transcribed court record.
13
court the next day, but he was only taken to court on 8 June 2008. 16 The plaintiff
testified that the special branch informed him that it was Mr Primus Amwaama who
decided that he should be added to the charge, but they advised him not to do so.
[22] He informed the court that there was a day that he was supposed to appear in
court for plea and trial but he was not brought from Oluno Correctional Facility because
the officer-in-charge said that he received a call saying that the trial will not proceed.
[23] He informed the court that he was never taken for an identification parade nor
was his finger prints taken, but he was only added to the charge and kept in custody.
[24] He testified that he received a copy of disclosure of the docket to read what was
in the police docket. He informed the court that Mr Kombo was a taxi driver in Katima
Mulilo, and he was well known by Mr Primus Amwaama. He told the court that a week
after the robbery in question, Mr Kombo disappeared and the plaintiff alerted Mr Primus
Amwaama about the disappearance of Mr Kombo. He further added that the statement
of Mr Martty Mbeha Mbukusa was given while he was in custody on a charge of
transporting stock without a license.
[25] The plaintiff informed the court that Mr Mudamburi informed the court that he, the
plaintiff had appealed to the High Court and said unpleasant things about the court. The
magistrate then asked the plaintiff if that is true and he responded that it is true that he
has questioned the competency of the magistrate. The magistrate then said that he will
not proceed with the bail application until he reads what the plaintiff said about him and
from there on the magistrate refused him to bring bail applications.17
[26] The plaintiff informed the court that Mr Mudamburi testified that the same
evidence available was required for conviction on the charge of robbery and kidnapping,
but when the robbery charge was withdrawn, the kidnapping charge was not withdrawn.
He further informed the court that the first defendant, Mr Primus Amwaama refused to
hand over the docket to someone else to investigate until a letter came from the
16 Page 156 of the transcribed court record.17 Page 175 of the transcribed court record.
14
Regional Commander saying that the docket should be handed to someone else to
investigate. The plaintiff said that Mr Mudamburi informed the court that he was not
aware of plaintiff’s application for stay of prosecution but the charges against him were
withdrawn before the application for stay of prosecution could be heard. He further
informed the court that there is a part of the court record that is missing.
[27] The plaintiff testified that Mr Mudamburi informed him that he had no objection to
him being granted bail but he could not do so because he is also a foreigner, just like
him, and that he has a family and children to feed. The plaintiff further testified that Mr
Mudamburi informed him that the Unit Commander does not want him to be granted bail
and but he should bring a formal bail application. He informed the court that whenever
he brought a bail application, Mr Mudamburi objected. He added that they used the
charge of kidnapping to further keep him in custody, while some accused persons were
given bail of N$500 and he was not given bail or an opportunity to plead.
[28] In cross-examination, the plaintiff informed the court that there was a time that he
wanted to bring a bail application but the public prosecutor informed the court that there
is a statement from the first defendant, Mr Primus Amwaama saying that he is trying to
escape. He further informed the court that Mr Primus Amwaama and Mr Antonio came
to court whenever he applied for bail and they informed the court that they are close to
going on trial. He stated that his application for the separation of trial was opposed by
the State and refused by the court. He submitted that Mr Mudamburi did not want him
out of custody because he did not oppose bail being re-instated for his co-accused but
he opposed his bail applications, and he had access to the docket which the court did
not have.18
[29] In cross-examination, the plaintiff denied that the amount of N$9 000 that he
gave to Mr Primus Amwaama was owed to him and he denied that the amount was
given to Mr Primus Amwaama as a result of a settlement agreement they had entered
into. The plaintiff denied owing the first defendant any money. He further stated that the
first defendant asked for money from him and he gave him a bank cheque. He further
informed the court that Mr Primus Amwaama stayed at his business premises called
18 Page 204 of the transcribed court record.
15
Saaf City for free, with his two minor children who had access to the pool. He denied
receiving money from Mr Primus Amwaama to start his business and further denied that
he owes him any money. He informed the court that Mr Primus Amwaama took things
on credit from his business.
[30] The plaintiff further stated in cross-examination that Mr Primus Amwaama made
him live in fear, by saying that he is the plaintiff’s backbone and that he cannot make it
in Katima Mulio without him. He informed the court that he was already in custody when
his statement was taken by Mr Primus Amwaama who was a unit commander at the
time, and he had power to take him from the holding cells without making an entry into
the occurrence book. He further added that Mr Primus Amwaama used to move him
from cell to cell and every time he did so, he had to go through what is called baptism,
which entails him being stripped naked and going to the shower naked, and being
beaten.
Court analysis and findings
Claim based on unlawful and wrongful arrest
[31] In the pre-trial report the parties asked the court to determine whether or not the
first defendant was at all material times pleaded in the plaintiff’s particulars of claim
acting in his personal capacity or within the course and scope of his employment in
terms of the Police Act 19 of 1990.19 Another issue of law that the parties asked the
court to determine is whether or not the plaintiff was required to furnish the notice in
terms of section 39 of the Police Act 19 of 1990 to the first defendant and the effect of
such failure in the event that such notice was required.20
[32] Section 39(1) of the Police Act 19 of 1990 provides that ‘any civil proceedings
against the State or any person in respect of anything done in pursuance of this Act
shall be instituted within 12 months after the cause of action arose, and notice in writing
of any such proceedings and of the cause thereof shall be given to the defendant not
19 Page 2 of the amended pre-trial report dated 15 June 2020.20 Ibid.
16
less than one month before it is instituted: provided that the minister may at any time
waive compliance with the provisions of this subsection.’ It is common cause that no
such notice was given.
[33] In Van der Merwe-Greeff Inc. v Martin and Another,21 Maritz J quoted with
approval from Watermeyer CJ in Feldman (Pty) Limited v Mall,22 in which Watermeyer
CJ dealt with the meaning of the expression in ‘within the scope of his employment’ and
pointed out that the expression might be misleading unless one is alive to the fact that
the expression is not equivalent to ‘scope of authority’. Watermeyer CJ stated that:
‘One is apt, when using the expression “scope of employment” in relation to the work of
a servant, to picture oneself a particular task or undertaking or piece of work assigned to a
servant, which is limited in scope by the express instructions of the master, and to think that all
acts done by the servant outside of or contrary to his master’s instructions, are outside the
scope of his employment; but such a conception of the meaning of “scope of employment” is too
narrow. Instructions vary in character, some may define the work to be done by the servant,
others may prescribe the manner in which it is to be accomplished; some may indicate the end
to be attained and others the means by which it is to be attained. Provided that the servant is
doing his master’s work or pursuing his master’s ends he is acting within the scope of his
employment even if he disobeys his master’s instructions as to the manner of doing the work or
as to the means by which the end is to be attained.’
[34] In Feldman (Pty) Limited v Mall,23 the court held ‘that if a servant does not
abandon his master’s work entirely but continues partially to do it and at the same time
to devote his attention to his own affairs, then the master is legally responsible for harm
caused to a third party which may fairly, in a substantial degree, be attributed to an
improper execution by the servant of his master’s work, and not entirely to an improper
management by the servant of his own affairs.’
[35] In relation to the ‘scope and course of employment’ and ‘vicarious liability’, the
Supreme Court in Crown Security CC v Gabrielsen said the following24:
21 Van der Merwe-Greeff Inc. v Martin and Another, 2006 (1) NR 72 (HC) at p 20 – 21.22 Watermeyer CJ in Feldman (Pty) Limited v Mall, 1945 AD 733.23 Watermeyer CJ in Feldman (Pty) Limited v Mall, 1945 AD 733.24 Supreme Court in Crown Security CC v Gabrielsen (SA 40/2013) [2015] NASC 14 (08 July 2015).
17
‘[17] O’Regan J, thereafter referred with approval to a later leading case of Minister of
Police v Rabie.25 In that matter, a plaintiff claimed damages for inter alia wrongful arrest and
detention effected by a mechanic employed by the police pursuing his own personal interests.
He was off duty at the time of the arrest and not in uniform. But he identified himself as a
policeman to the victim and took him to a police station, filled in a docket and wrongfully
charged him. This was a significant deviation from the usual tasks incidental to his employment
with the police. The issue was whether the Minister of Police was vicariously liable for damages
arising from his delictual conduct of the off duty police employee. The court found that the
Minister was liable. The test for determining vicarious liability in that matter was formulated in
the following way:
“It seems clear that an act done by a servant solely for his own interests and purposes,
although occasioned by his employment, may fall outside the course or scope of his
employment, and that in deciding whether an act by the servant does so fall, some
reference is to be made to the servant’s intention (cf Estate van der Byl v Swanepoel
1927 AD 141 at 150). The test is in this regard subjective. On the other hand, if there is
nevertheless a sufficiently close link between the servant’s acts for his own interests and
purposes and the business of his master, the master may yet be liable. This is an
objective test.26”
[18] This approach, which has since been repeatedly applied,27 was further explained by
O’Regan J in K v Minister of Safety and Security28 in the context of the adoption of the
Constitution of South Africa and in the light of the values expressed in it:
“The approach makes it clear that there are two questions to be asked. The first is
whether the wrongful acts were done solely for the purposes of the employee. This
question requires a subjective consideration of the employee’s state of mind and is a
purely factual question. Even if it is answered in the affirmative, however, the employer
may nevertheless be liable vicariously if the second question, an objective one, is
answered affirmatively. That question is whether, even though the acts done have been
25 1986 (1) SA 117 (A).26 Supra at 134C-E.27 Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 (5) SA 649 (A) para 11; Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA) para 10; Absa Bank v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA) per Zulman JA para 5; although Rabie was criticised in Ngobo at 832, this statement for the test was not directly criticised.28 Supra at para 32.
18
done solely for the purpose of the employee, there is nevertheless a sufficiently close
link between the employee’s acts for his own interests and the purposes and the
business of the employer. This question does not raise purely factual questions, but
mixed questions of fact and law. The questions of law it raises relate to what is
“sufficiently close” to give rise to vicarious liability. It is in answering this question that a
court should consider the need to give effect to the spirit, purport and objects of the Bill
of Rights.” ’
[36] In this case, the first defendant arrested the plaintiff after an instruction from a
public prosecutor that the plaintiff should be charged. On the totality of the evidence I
conclude that he was acting in his official capacity and not in his personal capacity. 29 I
remain conscious of the fact that there was bad blood between the plaintiff and the first
defendant. Despite that, it is evident that the first defendant only arrested the plaintiff
once he was instructed by the prosecutor to charge the plaintiff. There is nothing to
suggest that the first defendant acted in his personal capacity.
[37] Having found that the first defendant was acting within the course and scope of
his employment by the Ministry of Safety and Security and in pursuance of the Police
Act 19 of 1990 when the alleged unlawful arrest occurred in 2007, the Police Act 19 of
1990 therefore comes into play, because the plaintiff’s cause of action arose out of acts
performed in pursuance of the provisions of the Police Act 19 of 1990. In terms of
section 39(1) of the Police Act 19 of 1990, the plaintiff is obliged to institute action
against the first defendant or the State within 12 months after the cause of action arose
and to give notice in writing of the civil action and the cause thereof, not less than one
month before the commencement of the action. The current proceedings were not
instituted within 12 months after the cause of action arose, and it is common cause that
no such notice was given. It follows that the case against the first defendant must fail.
Claim based on malicious prosecution
29 See para 21-22 of Johannes JA Gabrielsen v Crown Security CC (I 563/2007) [2013] NAHCMD 124 (13 May 2013).
19
[38] I now turn to deal with the claim based on malicious prosecution. The claim
based on malicious prosecution is against the third defendant only, the Prosecutor-
General.
[39] In Minister of Safety and Security v Mahupelo Richwell Kulisesa30 the Supreme
Court cited with approval the requirements that must be alleged and proved in a claim
for malicious prosecution (on the merits and quantum) as set out by Damaseb JP in
Akuake v Jansen van Rensburg,31 which are as follow:
(a) The defendant must have instituted or instigated the proceedings;
(b) The defendant must have acted without reasonable and probable cause;
(c) The defendant must have been actuated by an improper motive or malice
(or animo injuriandi);
(d) The proceedings must have terminated in the plaintiff’s favour, and
(e) The plaintiff must have suffered damage (financial loss or personality
infringement).
[40] In the present matter, it is common cause that the third defendant instituted or
instigated the proceedings, and that the proceedings terminated in the plaintiff’s favour,
and the last requirement that the plaintiff must have suffered damage (financial loss or
personality infringement) will be dealt with at a later stage as agreed by the parties. I am
only concerned with the issue of liability. For those reasons, it is only two requirements
that this court needs to determine whether they were met, being the requirement that
the defendant must have acted without reasonable and probable cause, and that the
defendant must have been actuated by an improper motive or malice (or animo
injuriandi).
[41] In relation to the requirement that the defendant must have acted without
reasonable and probable cause, the Supreme Court said the following in Minister of
Safety and Security v Mahupelo Richwell Kulisesa:32
30 Minister of Safety and Security v Mahupelo Richwell Kulisesa (SA 7/2017) [2019] NASC (28 February 2019).31 Akuake v Jansen van Rensburg 2009 (1) NR 403 HC.
20
‘[65] In Waterhouse v Shields,33 Gardiner J cited with approval the definition of
‘reasonable and probable cause’ originally developed by Hawkins J in Hicks v Faulkner,34 which
is usually followed in English law and has been accepted by courts in South Africa. The phrase
has been understood to mean:
“[A]n honest belief in the guilt of the accused based upon a full conviction,
founded on reasonable grounds, of the existence of a state of circumstances,
which assuming them to be true, would reasonably lead to any ordinary prudent
and cautious man, placed in the position of the accuser, to the conclusion that
the person charged was probably guilty of the crime imputed.”
[66] In Glinski v Mclver 1962 (1) All ER 696 (HL), in the course of explaining what “belief in
the person’s guilt” entailed, Lord Denning cautioned that the use of the word “guilty” in the
above definition might be misleading. In the Law Lord’s view, “belief in the person’s guilt” implies
that in order to have a reasonable and probable cause, the person who brings a prosecution,
must at his peril, be sure of the guilt of the accused, as a jury (in the English system) or a trial
judge (in our system) must before they convict. Whereas in truth what the person who brings the
prosecution must do is satisfy himself or herself that “there is a proper case to lay before” the
court. After all, he or she can neither judge whether the witnesses are telling the truth nor can
he know what defences the accused may set up. According to Lord Denning, the determination
of the guilt or innocence of the accused remains the duty of the trial court.35
[67] In Prinsloo and another v Newman36 the South African Appellate Division held that the
concept of reasonable and probable cause involves both a subjective and an objective
element.37 As an objective consideration, the defendant must have sufficient facts from which a
reasonable person could have concluded that the plaintiff had committed the offence or crime
charged. As to the subjective element, the defendant must have subjectively held an honest
belief in the guilt of the plaintiff. It accordingly follows that in a claim for malicious continuation of
a prosecution on the facts and circumstances similar to those obtaining in this appeal, there has
to be a finding as to the subjective state of mind of the prosecutor as well as an objective
consideration of the adequacy of the evidence available to him or her. The court in Prinsloo v
32 Minister of Safety and Security v Mahupelo Richwell Kulisesa (SA 7/2017) [2019] NASC (28 February 2019).33 1924 CPD 155 at 162.34 1878 8 QBD 167 at 171.35 At 709I-710A.36 1975 (1) SA 481 (A).37 At 495H
21
Newman also held that a defendant will not be liable if there exists, objectively speaking,
reasonable grounds for the prosecution and he or she, subjectively believed in the plaintiff’s
guilt. This approach was followed by the South African Supreme Court of Appeal in Relyant
Trading (Pty) Ltd v Shongwe.38
[68] As explained by Schreiner JA in Beckenstrater v Rottcher and another,39 when it is
alleged that a defendant had no reasonable and probable cause for prosecuting, it means that
he or she did not have such information as would lead a reasonable person to conclude that the
plaintiff had probably been guilty of the offence charged; if, despite being in possession of such
information, the defendant is shown to not have believed in the plaintiff's guilt, a subjective
element comes into play and disproves the existence of a reasonable and probable cause on
the part of the defendant.
[69] Hawkins J pointed out in Hicks v Faulkner above, that the question of reasonable and
probable cause depends not upon the actual existence, but upon the reasonable bona fide
belief in the existence of such state of things as would amount to a justification of the course
pursued in the making of the allegation complained of.40 The learned judge was thus of the view
that when applying the objective and subjective tests, sight should not be lost of the distinction
drawn between the facts required to establish the actual guilt of the plaintiff and those required
to establish a reasonable bona fide belief in the guilt of the plaintiff, as many facts admissible to
prove the latter would be wholly inadmissible to prove the former.41 This is an important
distinction that the court a quo appears to have overlooked. As a consequence of this error, the
court below impermissibly adopted an approach of conducting an analysis of the evidence
proffered against the respondent as if it was evaluating the evidence in a criminal trial. ‘
[42] In this matter, the public prosecutor who gave the instruction to the first
defendant for the plaintiff to be added to the charge was not called to testify, and the
first defendant still maintains that he does not know or recall the public prosecutor who
gave the instruction for the plaintiff to be brought to court to be added to the robbery
charge. The only person who testified on behalf of the third defendant is Mr Jatiel
Mudamburi, who was a public prosecutor at Katima Mulilo Magistrate’s Court. He is not
the public prosecutor who handled the plaintiff’s criminal case from the onset, but he
38 At para 14.39 1955 (1) SA 129 (A) at 136A-B.40 At 173.41 Id.
22
only took over the matter from January 2009, when he started work at the Katima Mulilo
Magistrate’s Court as a Control Prosecutor and a Regional Court Prosecutor. It is
common cause that at the time of the accused person’s first appearance in court on 8
June 2007 the police docket contained a witness statement from a certain Mr Martty
Mbeha Mbukusa, which was obtained on 12 March 2007, and the robbery incident
giving rise to the charge happened on 10 May 2006, in which statement he said, as
summarized by Mr Jatiel Mudamburi in his witness statement, that in 2006 at an
unknown time and date he was approached by the plaintiff, Mr Ali Moussa with a
proposal that he assists him to rob Mr Sleiman Hijazi. According to that statement, Mr
Ali Moussa informed him that he had all the information concerning Mr Sleiman Hijazi,
regarding the time when he would be having a lot of money and how he transported it
from the shop to the house. Mr Mbukusa further stated that Mr Moussa informed him
that Mr Hijazi had a pistol kept in a safe and that it was not going to be a problem as
they will go with guns to scare him, and that overalls were to be worn to avoid being
identified. He stated that he declined to rob Mr Sleiman Hijazi.42
[43] According to Mr Jatiel Mudamburi, the statement of Mr Mbukusa shows that the
plaintiff, Mr Ali Moussa was the mastermind of the robbery and it further tender to prove
that Ali Moussa had knowledge of Mr Sleiman Hijazi’s movements and where he used
to keep his money at the house and that he had inside knowledge of Mr Sleiman Hijazi’s
residence.43
[44] In addition to the statement of Mr Marrty Mbeha Mbukusa, the docket had a
statement of a certain Mr Kalaluka Sikananu that was obtained on 25 September 2007
while he was in custody. As summarized by Mr Jatiel Mudamburi, in that statement Mr
Kalaluka Sikananu stated that he shared a cell with the plaintiff, Mr Ali Moussa, Mr
Shabane Jumane Kombo and Mr Karlos Kasida Samahina, when he overheard the
plaintiff, Mr Ali Moussa and Karlos Kasida Samahina arguing over the robbery, in
circumstances that pointed towards the plaintiff as the mastermind of the robbery.44
42 Exhibit JM17.43 Ibid.44 Exhibit JM18.
23
[45] Mr Jatiel Mudamburi agreed with counsel for the plaintiff in cross-examination
that there was no direct evidence implicating the plaintiff, but there was circumstantial
evidence against him, which showed a common purpose. Taking into consideration the
content of the statement of Mr Martty Mbeha Mbukusa, I am persuaded that the
prosecutor who made the application for the plaintiff to be added to the charge of
robbery, thereby instituting the criminal proceedings against the plaintiff was satisfied
that there was a proper case to lay before the court. I am further persuaded that the
public prosecutor had sufficient facts from which a reasonable person could have
concluded that the plaintiff had committed the crime charged, by considering the
adequacy of the evidence available to him or her. In addition to that, I am convinced that
the public prosecutor held an honest belief in the guilt of the plaintiff, thereby satisfying
both the objective and subjective elements of the concept of reasonable and probable
cause.
[46] I relation to the requirement that the defendant must have been actuated by an
improper motive or malice (or animo injuriandi), the Supreme Court said the following in
Minister of Safety and Security v Mahupelo Richwell Kulisesa:45
‘[39] There appears to be divergent views in the cases and in the leading text books
as to whether in a claim for malicious prosecution in South African law the plaintiff must prove
both animus iniuriandi and malice. As far as I was able to ascertain, this is a matter that has
hitherto not been decided by our courts.
[40] Professor McQuoid-Mason in LAWSA points out that malice means that the defendant
had either an absence of belief in the guilt of the accused (which may include recklessness), or
an improper or indirect motive other than that of bringing the plaintiff to justice. He states that
traditionally malice has been distinguished from animus iniuriandi. Malice is concerned with the
question of lawfulness whereas animus iniuriandi refers to fault. Animus injuriandi (which will
generally be presumed under the actio iniuriarum) is required as the fault element, and malice
should still be required to establish wrongfulness. The learned professor states that in practice
courts ‘appear to pay mere lip service to the concept of animus injuriandi and only enquire into
the motives of the defendant.’46
45 Minister of Safety and Security v Mahupelo Richwell Kulisesa (SA 7/2017) [2019] NASC (28 February 2019).46 LAWSA para 328 – 329.
24
[41] The South African Supreme Court of Appeal has held that what has to be proved is
animus injuriandi.47 The same court pointed out in Relyant Trading (Pty) Ltd v Shongwe and
Another48 that:
“Although the expression “malice” is used, it means, in the context of the actio
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). . .” ”
[42] This dictum, so says Van Heerden JA in Minister for Justice & Constitutional
Development v Moleko49, means that animus injuriandi, and not malice must be proved before
the defendant can be held liable for malicious prosecution as injuria.50 In Rudolph and others v
Minister of Safety and Security and another, the court explained what is required by reference to
its judgment in Moleko.51
“The defendant must not only have been aware of what he or she was doing in
instituting or initiating the prosecution, but must at least have foreseen the
possibility that he or she was acting wrongfully, but nevertheless continued to
act, reckless as to the consequences of his or her conduct (dolus eventualis).
Negligence on the part of the defendant (or, I would say, even gross negligence)
will not suffice.” (Emphasis added)
[43] This is a salutary practice that in my view should be followed by our courts. It follows that
in Namibia, animus iniuriandi is one of the requirements that must be proved before the
defendant can be held liable for malicious prosecution. I note that counsel on both sides support
this approach.
[44] Professor McQuoid-Mason distinguishes animus iniuriandi from malice in the following
terms:
47 Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) para 18.48 2007 1 All SA 375 (SCA) at para 5.49 [2008] 3 All SA 47 (SCA) at para 62.50 At para 62.51 Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) para 64.
25
“Animus iniuriandi includes not only the intention to injure but also consciousness
of wrongfulness, and is distinguishable from improper motive or malice. Malice is
the actuating impulse preceding intention.”52
[45] The existence of malice may point to the existence of animus iniuriandi, as indicating an
awareness of the wrongfulness of the action.53 The position is explained in Neethling’s Law of
Personality as follows:
“Animus iniuriandi (intention) means that the defendant directed his will to
prosecuting the plaintiff (and thus infringing his personality), in the awareness
that reasonable grounds for the prosecution were (possibly) absent, in other
words, that his conduct was (possibly) wrongful (consciousness of wrongfulness).
It follows from this that the defendant will go free where reasonable grounds for
the prosecution were lacking, but the defendant honestly believed that the
plaintiff was guilty. In such a case the second element of dolus, namely of
consciousness of wrongfulness, and therefore animus injuriandi, will be lacking.
His mistake therefore excludes the existence of animus injuriandi.’54”
[47] The plaintiff stated in his particulars of claim that the third defendant and or her
delegated personnel wrongfully, unlawfully, intentionally, maliciously, alternatively
negligently and contrary to the plaintiff’s rights in terms of Articles 7, 8, 11, 12 and 13 of
the Constitution continued to prosecute the plaintiff for the offences by virtue of the fact
that, to the knowledge of the third defendant and or her delegated personnel, as from
December 2008 to 21 May 2015, that the complainant who attempted to implicate the
plaintiff in the commission of the offences, permanently relocated to Lebanon during
June 2011 and would not return to Namibia to give testimony against the plaintiff.55
[48] In his witness statement, the plaintiff stated that on 8 July 2011, information was
placed before court that the complainant has relocated to Lebanon and the legal
representative for the plaintiff, Mr Van Vuuren objected to a further postponement of the
matter and asked that the matter be struck from the roll, expressing his sentiments that
52 LAWSA para 321.53 LAWSA para 322.54 Neethling’s Law of Personality (2nd Ed) page 181.55 Para 11.3 of the plaintiff’s particulars of claim.
26
the complainant might not be available for the trial since he has relocated to Lebanon. 56
The plaintiff also asked that he be granted bail, in light of the fact that the complainant
has relocated to Lebanon. The court then ordered that the application for the matter to
be struck from the roll is pre-mature and advised the State to revert with concrete
information as to how the matter will proceed in order for the accused to know their fate.
Thereafter, the matter was postponed several times for various purposes, including plea
and trial, and as Mr Jatiel Mudamburi has agreed in cross-examination, no effort was
made by the State to secure the court attendance of the complainant, despite having
claimed that the State had the capacity to secure the court attendance of the
complainant.
[49] Mr Jatiel Mudamburi in his witness statement stated as follows:
‘Admittedly the complainant in the robbery count Sleiman Hijazi went to Lebanon for
what was said to be a medical operation. This information was provided by his brother Eiman a
business man conducting his business at Oshikango. Complainant only appeared at court once
on 14th December 2009 when the trial failed to kick off and then the matter was subsequently
postponed for legal aid until he left for Lebanon in 2012. From the date when Sleiman Hijazi
came to court and the trial did not proceed he would constantly phone enquiring as to the status
of the matter.’57
He further added that:
‘It is common cause the State has the ability and capacity to subpoena a witness from
another country to come and testify in Namibia however according to Eiman it might be difficult
to have Sleiman Hijazi come back to Namibia for reasons not disclosed.58’
Lastly, he said that:
56 Para 22 of the plaintiff’s witness statement. 57 Para 85 of Mr Mudamburi’s witness statement.58 Para 86 of Mr Mudamburi’s witness statement.
27
‘The matter was withdrawn on 21 May 2015 after the third defendant became aware that
the victim of the robbery would not be in a position to come to Namibia and testify. We had
reasonable and probable cause right up to the date of the withdrawal.59’
[50] During his evidence-in-chief, Mr Mudamburi informed the court that when the
matter was called in the Regional Court for the first time, the complainant and his
brother Mr Eiman who was at that time managing one of the complainant’s shops in
Oshikango would constantly call him to inquire about the progress of the matter. He also
testified that when the complainant left Namibia for Lebanon, Mr Eiman informed him in
2012, telephonically that the complainant had gone to Lebanon for a medical operation
but he will be back, and that was his last communication with Mr Eiman regarding the
situation of the complainant and his health.60
[51] After that communication with Mr Eiman, Mr Mudamburi did not make any other
attempt to communicate with him to find out about the complainant’s health condition,
and whether he is in a position to return to Namibia, nor did he hand over the contact
details of the complainant’s brother to the investigating officer to find out about the
health status of the complainant and whether he was returning to Namibia. Even after
the plaintiff and his legal practitioner put it before court that the complainant had left the
country for Lebanon and might not return due to medical complications, he did not make
an effort to ascertain the complainant’s ability to return to Namibia or to send a
subpoena when the matter was set down for plea and trial. When he was asked by his
counsel if he made any attempt to ascertain whether the complainant is still in a position
to come back to Namibia after his last call with the complainant’s brother in 2012, he
replied that when the complainant went for medical operation it was said that he will
come back and added that there is no way he would constantly call the complainant’s
brother, Mr Eiman to ask about the health of the complainant.61 He added that it would
mean that in each case and every matter before their courts he would phone all the
complainants and ascertain how they are. He said that he expected the complainant’s
brother to contact him again to inform him that the complainant cannot make it back to
59 Para 87 of Mr Mudamburi’s witness statement.60 Page 83 of the transcribed court record.61 Page 84 of the transcribed court record.
28
Namibia. He added that he knew that when the time comes for the matter to proceed for
trial he will send a subpoena.
[52] In evidence-in-chief Mr Mudamburi denied that the plaintiff and his legal
practitioner placed information before court that the complainant will not be able to
return to Namibia due to medical complications arising from the operation and stated
that the record will bear him right, but the record placed before this court is incomplete.
He contended that he only became aware in 2015 that the complainant will not return to
Namibia due to medical implications when he was informed by the plaintiff. Thereafter
he instructed the police to ascertain the truthfulness of the information and also
personally phoned the complainant’s brother, Mr Eiman who was in Oshikango to find
out whether the information he received from the plaintiff is true. He said that after he
received that information he communicated it to the Prosecutor-General, and he was
instructed to have the matter withdrawn before plea, and that was done on 21 May
2015. The kidnapping charge was also withdrawn in 2015, although the complainant
had been in the country at all material times. He testified that the kidnapping charge
was only withdrawn in 2015 because the robbery and the kidnapping were committed at
the same time, and that the evidence which the prosecution would have led to secure a
conviction for kidnapping is the same evidence which the prosecution would need to
lead to secure a conviction for robbery, and it was only prudent that both charges be
withdrawn before plea, and if need be the State will still have leeway to bring the matter
back to court on summons, but that did not happen until the current proceedings were
instituted.
[53] Although Mr Mudamburi has denied in evidence-in-chief and in cross-
examination that he knew that the complainant ‘might’ not be able to come back to
Namibia,62 he has admitted in his witness statement that he was aware that it might be
difficult for the complainant to return to Namibia for undisclosed reasons because the
complainant’s brother had informed him so.63 In evidence-in-chief he said that his last
call with the complainant’s brother was in 2012 when the complainant’s brother
informed him that the complainant has left for Lebanon for an operation but he will come
62 Page 83 and 84 of the transcribed court record.63 Para 86 and 87 of Mr Mr Jatiel Mudamburi’s witness statement.
29
back. It appears that Mr Mudamburi did not tell the truth in evidence-in-chief and in
cross-examination when he stated that he was not aware about the possibility of the
complainant not returning to Namibia, because that contention contradicts what he said
in his witness statement, in which he said that he was informed by the complainant’s
brother that it might be difficult for the complainant to come back to Namibia,64 and as
he testified, his last call with the complainant’s brother was in 2012. His version is more
improbable because he said both the complainant and his brother used to constantly
contact him from the date the matter first appeared in the Regional Court,65 and one
would then wonder why both the complainant who left Namibia and the brother who
remained would then suddenly stop contacting him or lose interest in the matter after
the complainant left the country.66 Mr Mudamburi knew that without the testimony of the
complainant at the trial, there would be no prospect of establishing the guilt of the
plaintiff. No evidence was tendered that any steps were taken to compel the
complainant to return from Lebanon to testify, despite ample time and opportunity to do
so, if that was what was contemplated.
[54] I am consequently of the view, that the conduct of the public prosecutor, once it
was known that the complainant had relocated to Lebanon, to continue with the
prosecution, at which stage all reasonable hope that the trial could continue had
disappeared was malicious, within the meaning of the word in the authorities I have
referred to.
[55] I conclude that the continued prosecution of the plaintiff for the period spanning
2012 to 2015 was a malicious prosecution for which the third defendant is liable.
[56] I make the following order:
1. The claim against the first defendant is dismissed with costs.
2. The claim against the third defendant succeeds in part, in so far as it is
limited to the continued prosecution of the plaintiff during the period between 64 Para 86 and 87 of Mr Jatiel Mudamburi’s witness statement.65 Page 83 of the transcribed court record.66 Para 87 of Mr Mudamburi’s witness statement, and page 83, 84 and 103 of the transcribed court record.
30
the year 2012 and 2015 when it was established that the complainant had
returned to Lebanon, to the knowledge of the public prosecutor.
3. The third defendant is ordered to pay the plaintiff’s costs, which will include
the costs of one instructing counsel and one instructed counsel.
________________
K MILLER
Acting Judge
APPEARANCES:
PLAINTIFF: T Muhongo
Instructed by Dr Weder, Kauta & Hoveka Inc.
Windhoek
FIRST and THIRD
DEFENDANTS: E Shifotoka
Instructed by Office of the Attorney General,
Windhoek
SECOND DEFENDANT: No appearance
