COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
No: I 1627/2006
MUNICIPAL COUNCIL OF
GOVERNMENT OF THE REPUBLIC OF NAMIBIA................SECOND
v Municipal Council of Windhoek (I
1627-2006)  NAHCMD 357 (26 November 2013)
VAN NIEKERK J
18, 19 June 2008; 27 October 2008
for damages for unlawful arrest and detention – Issue of
defendants liability adjudicated separately from quantum –
defendants alleged that arrest lawful under section 40(1) of the
Criminal Procedure Act, 51 of 1977 and that detention lawful in terms
of section 50(1) of the Criminal Procedure Act – such proved on
balance of probabilities – defendants not liable for
plaintiff’s damages – plaintiff’s claim dismissed
plaintiff’s claim is dismissed with costs.
The plaintiff instituted action against the defendants for damages
for wrongful arrest and detention by members of the Windhoek City
Police and the Namibian Police during the period 19 - 20 March 2006.
He claims an amount of N$75 000 against each defendant.
In his particulars of claim the plaintiff alleges, inter alia, the
On 19 March 2006 at Windhoek, Independence Avenue, members of the
City Police unlawfully and intentionally seized the Plaintiff’s
person and took him into custody –
without a warrant for his arrest;
without arresting him in accordance with law and the prescribed
procedures for such arrests;
in violation of his rights as contemplated in Article 11(1) of the
without any lawful or probable cause and/or in an arbitrary manner;
in conflict with Section 40(1)(b) of the Criminal Procedure Act.
On the same date at the police station at Windhoek Police Cells, the
Plaintiff was unlawfully detained by members of the City Police and
members of the Namibian Police, at the Windhoek Police Station from
19 March to 20 March 2006 –
without a Notice of Detention;
without having been taken into detention in accordance with the law
and prescribed procedure;
in violation of the Plaintiff’s rights as contemplated in
Article 11(1) of the Namibian Constitution;
in violation of the Plaintiff’s rights as contemplated in
Article 11(2) of the Namibian Constitution;
without any reasonable and probable cause and/or in arbitrary
manner and/or without being promptly informed in a language he
understood of the grounds for his arrest and detention.
On 19 March 2006 at or near the place referred to in paragraph 4
supra the Plaintiff’s liberty, dignity and the integrity
of his person were unlawfully violated or injured by members of the
City Police and Namibian Police and/or on the instructions and/or
insistence of members of the City Police and the Namibian Police in
the Plaintiff was unlawfully taken into custody as pleaded in
the Plaintiff was unlawfully detained, at stages in public, as
pleaded in paragraph 4.2.
In and as a result of the aforesaid unlawful acts by members of the
City Police and the Namibian Police the Plaintiff –
was injured in his dignity and reputation;
was humiliated and suffered emotional stress;
was deprived of his freedom of movement and his liberty;
6.4 was deprived of
his constitutional right to dignity, liberty, due process and
freedom of movement as contemplated in articles 7, 8, 11, 13 and
21(1)(g) and (i) of the Namibian Constitution.’
In further particulars provided by the plaintiff upon request by the
first defendant he stated that he did not know the names of any of
the police officers involved; that at the beginning there were two
male City Police members and later a female City Police member who
joined them with an alcohol breathalyser; that the prescribed
procedures which were not followed were that ‘the said members
of the City Police did not warn the Plaintiff accordingly (sic)
to the “Judges Rules” and failed to adhere to those”
Judges Rules” while “arresting” and “detaining”
the Plaintiff’; that on 20 March 2006 at the Windhoek Police
Station the plaintiff was for the first time informed of three
charges against him, namely (i) drunken driving; (ii) defeating the
ends of justice; and (iii) driving without a driver’s licence;
that the ‘Notice of Detention’ was supposed to have been
given to him by the members of the City Police and/or the Namibian
In response to further particulars requested by the second defendant
the plaintiff stated that the arrest took place between 21h00 and
22h00 on 19 March 2006; that he was never informed by the City Police
on which charge or for which offence he was arrested; that he did not
drive a motor vehicle, but that it was driven by a Mr Taapopi; that
the plaintiff was informed and instructed to blow into the alcohol
breathalyzer after waiting for approximately two hours due to the
late arrival of the City Police female officer operating the
breathalyzer; that the breathalyzer showed a zero result, apparently
because it was non-functional, and later the plaintiff was informed
by the City Police members that the breathalyzer was non-functional
and that he had to be taken to Katutura State Hospital for an alcohol
blood sample; that the blood sample was probably taken after
midnight; that the plaintiff was formally charged on 20 March 2006
between 11h00 and 12h00; that he appeared in the magistrates’
court on 20 March 2006; that the case against him was postponed to 30
October 2006 for further investigation; that he was released on 20
March 2006 before 13h00 at the court after spending several hours in
the police cells.
The first defendant’s defence as set out in its amended plea
is, in a nutshell, that the City Police members were peace officers
as defined in the Criminal Procedure Act, 51 of 1977, (‘the
CPA’) and that Const Silumbu lawfully arrested and detained the
plaintiff without a warrant in terms of section 40(1)(b) of the CPA
until he was handed over to the Namibian Police.
The second defendant’s defence is that the plaintiff was
arrested and detained by a peace officer in the City Police in terms
of section 40(1)(a) or (b) of the CPA and later handed over to the
Namibian Police who detained him in terms of section 50 of the CPA
and brought him before the magistrates’ court within 48 hours
where after he was released. It became common cause that the
plaintiff was released on a warning to appear on the postponement
At the start of the trial the Court gave leave for the issue of
liability to be determined separately from the issue of the measure
of damages. It was further agreed that the onus to begin is on
The first defendant presented the evidence of three witnesses: Const.
Thomas Silumbu, Sgt. Katrina Auchas (formerly Isaacks) and Const.
He is a constable in the service of the first defendant’s City
Police. He was on duty from 22h00 on 19 March 2006 to 6h00 on
20 March 2006 and tasked with crime prevention. During the
early hours of 20 March 2006 at about 2h30 he was on duty with Const
Amukwaya. They were both in City Police uniform and using a clearly
marked City Police van. He attended to a complaint at the Wika
service station in Mandume Ndemufayo Avenue in Windhoek. While
there, he observed a Hyundai vehicle about 15 metres away that made
an illegal turn from the one side of the said Avenue to the other, by
ignoring a no entry traffic sign. At the time he ignored the
transgression as he was busy dealing with the complaint.
About 10-15 minutes later he was driving the police vehicle in Sam
Nujoma Drive near the robot controlled intersection with Independence
Avenue when he observed the same Hyundai vehicle in front of him at
the intersection travelling from south to north in Independence
Avenue. The vehicle was travelling in the same direction, but
very slowly and not properly in his lane as the vehicle’s
wheels were straddling the white line. This raised his
suspicions and he decided to follow the Hyundai. He switched on
the blue light of his vehicle and later also the siren to indicate
that the Hyundai should stop. Near the Kalahari Sands Hotel the
Hyundai finally pulled over to the side. He stopped behind the
Hyundai and got out, moving to the driver’s side, while Const
Amukwaya went to the front passenger side. The driver, who was the
plaintiff, opened the window. There was one passenger sitting
in front in the passenger seat. It is common cause that the
person who was in the vehicle with the plaintiff was Mr Taapopi.
Const Silumbu introduced himself and when he took out his appointment
certificate, the plaintiff said that he could see that he was of the
City Police. He asked the plaintiff whether there was something
wrong or whether there was something wrong with the car. The
plaintiff responded by asking, “Does it look like there is
something wrong?” Const. Silumbu replied by saying that
the first time the plaintiff made wrong turn and now he was driving
at a very slow speed and not straight in his lane. The
plaintiff responded by saying “Maybe you were sleeping that
time.” Const. Silumbu asked the plaintiff to step out of
the car. The plaintiff wanted to know why, to which the
constable replied that the plaintiff smelled of alcohol and that he
would be calling for a breathalyzer test to be done. The
exchanges between them took place in English.
The plaintiff got out. He was unsteady on his feet and looked like he
wanted to fall. He moved around the front of the vehicle and
sat down on the pavement. He then asked the witness whether he
knew who he (the plaintiff) was. The witness replied in the
negative. The control room was called and a request was made
that a traffic officer be sent to conduct a breathalyzer test.
About 10 minutes later Sgt Auchas arrived. Const. Silumbu
introduced her to the plaintiff, to which the plaintiff replied that
he knew who they were and that he does not have to be told.
When the plaintiff was informed of the traffic officer’s
intention to take the test, he pretended not to understand and
started to speak in Oshiwambo. Const Amukwaya, who could speak
the language, translated what was said. The first attempt at
taking the test failed. The witness was not sure whether the
plaintiff could not blow or whether he was just being difficult.
On the second attempt the reading was 0.85. Sgt Auchas stated
that as the reading was over the legal limit of 0.37 (milligrams per
1 000 millilitres) he would be arrested and taken for another test
with a device which provides a written record of the results.
Const. Silumbu then placed his hand on the plaintiff’s shoulder
and stated that he is arresting him for driving under the influence
of alcohol. When the witness wanted to explain his rights, the
plaintiff said he knew what they were. He resisted having to
get into the police van and said that they did not know who he was
and that they would lose their jobs. He insisted that he should
travel in his own vehicle. Eventually Const Silumbu drove the
Hyundai to the police station accompanied by the plaintiff and Mr
Taapopi, while Const. Amukwaya and Sgt. Auchas drove in the latter’s
traffic control vehicle. Everyone waited at the police
station while Const. Silumbu and Sgt Auchas returned to fetch the
police van. When they returned to the police station, the plaintiff
was put in the van at the back. During cross-examination he was
at first not sure whether Mr Taapopi accompanied the plaintiff in the
van as alleged by the cross-examiner. Later something jolted his
recollection and he stated that he was sure he not there.
They drove to the traffic police headquarters where three attempts
were made to take a breathalyzer test. The plaintiff appeared
not to blow properly and readings could not be taken. The
device shuts down after three attempts and can only be used again
after 30 minutes. They therefore decided to take the plaintiff
to the hospital for his blood to be drawn. Throughout the
plaintiff was rowdy, resisting being moved and wanted to fight.
He actually kicked Sgt Auchas. They therefore handcuffed him in
order to restrain him. At the Katutura State hospital the
plaintiff spoke English to the medical officer. A blood sample
was taken. Afterwards the City Police members involved
transferred the plaintiff to the Central Police Station and handed
him over to the Namibian Police to be kept in custody.
During the events of that early morning the plaintiff at no stage
claimed that someone else had been driving the Hyundai.
He was not sure of the time that passed during the events, but he
estimated that they spent about 15 minutes at the headquarters; that
they did not wait long at the hospital as priority is given to the
police; and that the plaintiff was back at the police station at
During cross-examination on behalf of the plaintiff Const Silumbu
readily admitted that he was not able to identify the driver or the
passenger in the Hyundai when it made the turn at Wika.
The version of the plaintiff was put to him. It is that there
initially were four persons in the Hyundai: the plaintiff, Mr
Taapopi, Chief Insp. Shikongo and a certain Thomas. At about
22h00 the latter two were dropped off at First National Bank,
Ausspannplatz. Mr Taapopi drove the vehicle in Independence
Avenue from south to north. At the intersection with Sam Nujoma
Drive he observed the City Police vehicle and the blue light.
After the siren was put on he pulled to the left at Kalahari Sand
Hotel and parked the Hyundai. He switched off the engine and he
and the plaintiff got out of the vehicle. They were standing on
the pavement when the two policemen arrived. Const Silumbu never
showed his appointment certificate. He asked “Who is the
owner of this Hyundai?” Then Const. Silumbu called Sgt
Auchas to come to do the breathalyzer test. When she arrived
she tested the plaintiff, but showed him no results. She said
that the equipment was not functioning properly. Const Silumbu
and Mr Taapopi drove to the police station in the Hyundai while the
plaintiff was taken in the police van. After waiting about
20-30 minutes the plaintiff and Mr Taapopi were put into the van and
taken to the State Hospital for blood to be drawn. Const.
Silumbu did not accompany them, but Const Amukwaya and Sgt Auchas
did. Const Silumbu allegedly did not explain the Judges’ Rules
to the plaintiff.
Const. Silumbu denied everything that was at variance with his
testimony. He vehemently denied that the incident happened at
22h00 on 19 March. He said that Mr Taapopi said to them that
the plaintiff was rude to them because he was drunk and that they
should not listen to the plaintiff. Mr Taapopi did not say that
he was the driver of the Hyundai.
He could not say how long it took to move from the scene to the
police station, but from the police station to the traffic police
headquarters took about 6 minutes, from there to the hospital about
10 minutes, they spent about 10 minutes there and driving back to the
police station took about 10-15 minutes.
It was put to him that the plaintiff spoke only Oshiwambo that
evening and that he never sat on the pavement, which version Const
During cross-examination on behalf of the second defendant Const
Silumbu said he did ask for the plaintiff’s driver’s
licence, but he had none. He was also charged with the offence
of driving without a driver’s licence. He confirmed that
he only came on duty at 22h00 on 19 March. At that time he had
to attend the duty parade at the police offices where all the duty
officers were briefed about the shift and inspected for sobriety,
proper uniform and possession of required documents, e.g. the
appointment certificate. This procedure took about 30 minutes.
It would therefore have been impossible for him to have been involved
in the incident with the plaintiff at 22h00.
He said he only found out later that the plaintiff was a magistrate.
He described the plaintiff as drunk and very arrogant.
During re-examination he stated that he had the impression that the
only reason why the plaintiff started speaking in Oshiwambo after Sgt
Auchas arrived was to waste time and to delay the taking of the
tests. It was drawn to his attention that the plaintiff’s
further particulars state that they had to wait two hours for Const
Auchas to arrive. He denied this and repeated his earlier
evidence that they only waited about 10 minutes. He further
testified that if the plaintiff or Mr Taapopi had insisted that the
latter was the driver, they would have tested him for alcohol as
Auchas (formerly Isaacks)
She is a traffic officer in the service of the City of Windhoek. She
also worked the 22h00 to 06h00 shift from 19 - 20 March 2006.
She was on patrol duty. When she received the call from the
radio control room to proceed to the Kalahari Sands Hotel to perform
the breathalyzer test, she was in the suburb of Kleine Kuppe.
She immediately acted on the instruction.
She corroborated the evidence of Const Silumbu in all material
respects. She further stated that the reason why the breathalyzer
tests failed was because the plaintiff did not blow into the pipe
with the necessary force to provide the required minimum volume of
breath. The plaintiff and Mr Taapopi never stated that the
latter was in fact the driver. She further stated that the
plaintiff was aggressive when he was ordered to get into the police
van. He resisted their efforts to put him into the van at the
traffic headquarters and kicked her on her leg on one occasion.
The doctor who took the blood sample explained the procedure to the
plaintiff. A form was filled in (Exh “B”) in which Sgt
Auchas (whose surname was then Isaacks) recorded the examination at
Katutura Hospital took place at 03h35. This was confirmed by
the doctor in writing in her presence. He also indicated that
the blood sample was taken at 03h40. Sgt Auchas stated that she
returned to the police station between 04h00 and 04h30 where she
handed the plaintiff and the sealed blood sample to the charge office
Sgt Auchas stated that the plaintiff smelled of liquor, he was
talking too much, and he was aggressive. He resisted being put
into the van and kicked her. His behaviour and condition led her to
conclude that he was under the influence of alcohol.
On 20 March 2006 she issued the plaintiff with a notice to appear in
the magistrate’s court with the option of paying an admission
of guilt fine for the offence of driving a motor vehicle without
being the holder of a driver’s licence, alternatively without
carrying the driver’s licence with him. She indicated
that the plaintiff was unemployed because that is what he told her.
It is only later that she found out that the plaintiff was in fact
employed as a magistrate at the time.
During cross-examination on behalf of the plaintiff she explained
that she had the breathalyzer with her and she conducted the test
because she was a traffic officer, whereas the other two members were
ordinary police officers. She was adamant that she arrived at the
Kalahari Sands at about 2h30, which was 8 - 10 minutes after call and
that the blood sample was taken within two hours of receiving the
instruction to attend at the scene.
It was put to her that the plaintiff denied going to the police
station in his vehicle and that he went in the van instead, but this
she denied. She also denied that Mr Taapopi went along to the
hospital or that she drove him home.
She said she asked the plaintiff for his driver’s licence but
he did not produce it. That is why she issued the notice, which
she handed to him at the charge office. She denied the
allegation put that the plaintiff had the licence on him the whole
time, but that no-one asked him for it.
He confirmed the evidence of the previous two witnesses in all
The second defendant called Const Annette Goagoses, Const Vilho
Amoomo, Const Jackson and Const J P Jarson.
She is a member of the Namibian Police and was on duty from 22h00 on
19 March 2006 to 6h00 on 20 March 2006 at the Windhoek Central police
station in the charge office. At about 4h05 Sgt Auchas brought
the plaintiff in on a drunken driving charge with the instruction
that he be detained in custody. She made the necessary entries
in the occurrence book (Exh “E”) and placed the blood
sample she received from Sgt Auchas into the safe. The
plaintiff was very drunk and could not tell her his name. She
did not place him in the waiting cell because she was worried that
other detainees may take advantage of his drunken state. She
detained him in the charge office where she had the assistance of the
cell guards. She did not charge him then because he was too
inebriated to understand. In such circumstances the detainee is
given time to sober up. When she went off duty he was not yet
In cross-examination on behalf of the plaintiff it was put to her
that, although the plaintiff had taken some liquor on 19 March, he
was not drunk when she saw him, which she denied.
During cross-examination by Mr Erasmus for the first
defendant, she confirmed that once the members of the City Police had
arrested the plaintiff and handed him over to the Namibian Police,
their jurisdiction ended.
He served in the Department of Investigation of the Namibian Police.
On 20 March 2006 at 08h00 he started his duties at the Windhoek
Central police station as a standby officer for accidents and cases
of drunken driving. At the charge office he signed out all the
dockets which were supposed to be registered. On the way to his
office the plaintiff called him over by name. They knew each
other. The plaintiff explained that he was being detained for
drunken driving and asked whether the witness had the docket, which
he affirmed. He booked the plaintiff out and took him to Const.
Jackson to be formally charged.
After he was charged the witness booked the plaintiff back and noted
that the police had set bail of N$500. As the plaintiff could
not pay this amount, he later that morning at about 10h00 booked the
plaintiff out to be taken to court for his first appearance.
The plaintiff’s case was called soon and he was released on
warning. The witness assisted the plaintiff by taking him home.
Const Jackson confirmed that he received the plaintiff and charged
him on 20 March 2006. In the docket he noticed that mention was
made that the plaintiff had no driver’s licence. When has
asked the plaintiff about this, he said that he had a licence but
that it was not in his possession that day.
Const Jarson is the investigating officer in the matter. The
charges against the plaintiff entered in the police docket (Exh “D”)
were that he drove a vehicle under the influence of intoxicating
liquor and that he drove a vehicle recklessly, negligently or
inconsiderately. He testified that at the time of the civil trial the
blood sample had not yet been analyzed. He noticed at some
stage that the criminal case had been withdrawn on 3 September 2007
because the results of the test were not yet available. He never
charged the plaintiff with defeating the ends of justice and
evidently did not take any statements which indicated that the
plaintiff had not been the driver of the vehicle, nor did he
investigate such a charge.
The plaintiff testified and called three witnesses. They are
Chief Insp Shikongo, Sgt Numbala and Mr Immanuel Taapopi.
His testimony may be summarized as follows. He had been
employed as a public prosecutor since 1991 and since 200 as a
magistrate. At the time of the events in this case he was
serving as such in Windhoek. He is the owner of the Hyundai vehicle,
but since the morning of 16 March 2006 up to the incident, which
occurred on a Sunday, he did not drive the vehicle as he did not know
Windhoek well. It was driven by Mr Taapopi. On the Sunday he,
Mr Taapopi, Thomas and Chief Insp Shikongo had visited a certain
house in Otjomuise where they drank a traditional maroela drink
usually made during the rainy season. This drink did not
contain much alcohol as it is prepared like a juice.
Between 22h00 and 23h00 on 19 March 2006 the four men drove into the
city centre with Mr Taapopi as the driver. The plaintiff was in
the front passenger seat and the other two men at the back.
They dropped the latter two off at a circle in Independence Avenue
near First National Bank, which is close to their place of residence.
From there Mr Taapopi drove in Independence Avenue towards the
Kalahari Sands Hotel. Close by they saw the police vehicle’s
blue lights and heard the siren behind them. Mr Taapopi veered
towards the left and parked in front of the hotel. The both got out
and stood on the pavement. The municipal police vehicle stopped
behind them. Two uniformed officers approached them and asked
who the owner of the Hyundai was. The plaintiff responded in
Oshiwambo that he was the owner.
These officers started to accuse him of being drunk and being the
driver of the Hyundai. He ‘tested’ them by saying ‘You
are saying that it’s me driving the vehicle and saying I’m
drunk’, and he took issue with the fact that he did not know
just from their uniforms who they were as they did not identify
themselves. The one officer who was able to speak Oshiwambo was
trying to interpret to the other officer, but expressed himself in a
mixture of broken Afrikaans and English. These officers told
him that he was drunk and called for their colleagues on the radio.
It took ‘a long while’ until the colleague arrived. It
was a female officer who required of him to perform a breathalyzer
test. She then informed him that he was drunk. He enquired
about her identity as she just wore a uniform without a name tag.
The reason why he asked this information was because there often are
cases where thugs pose as police officers.
He confirmed that he blew once but was told that there was not enough
breath. He blew a second time and the female officer said that
the instrument did not work properly and that he would be taken to
Katutura for a blood sample. He refused and asked how she could
come with an instrument that was not working properly when she is on
duty. Beside this she did not tell him that she was
investigating anything or tasked to do that work – she just
‘came’ to him.
The officers required of him to get into the van, but he asked where
the law said that he should get into the van if he had his own
vehicle. They tried to get hold of him to put him into the van,
but he refused, saying that he would go in his own vehicle to the
police station. One of the police officers then drove his
vehicle, Mr Taapopi sat in front and he sat at the back. He
said that the police officer who was interpreting ‘falsely’
and the female officer went in her police car. (He did not say
in what way the interpretation was false). The van remained at
the scene. His vehicle was parked at the police station.
They all entered the police station where he and Mr Taapopi remained
with the officer who interpreted while the other two officers
disappeared for a long time.
Then ‘a’ female and male officer arrived and asked him to
get into the van that had been left behind at the scene. They were to
go to the hospital. He refused to get into the van and required
an explanation, which was given, namely that the breathalyzer
instrument they had was not working. He said that he would
rather go to the hospital in his vehicle, but they refused and said
that if he does not get in they will do their work as they usually do
it. He was handcuffed and put inside the van. Mr Taapopi
who had been standing at a distance, also got into the van, saying
that, if the plaintiff is going, he has no reason to stay behind.
He could not see properly where they were going, but later found
himself at the Katutura hospital. He did not know for what
purpose he was taken there. The handcuffs were taken off and
blood was drawn, but he did not know for what disease. At this
time Mr Taapopi was waiting outside. Afterwards he was
handcuffed again and they returned to the van. The officers
said that they were going to lock him up. The next thing he just
found himself back at the police station again. He does not
know what time it was because he was in a lot of pain as a result of
being handcuffed. He was locked up.
He stated that the evidence that he was taken to the traffic
headquarters to take another breathalyzer test is lies. He further
expressed surprise at the evidence by Const Goagoses and said that he
was detained in a ‘small place’ with three or four other
people. He dealt with a male officer. He was given no
blanket, had to sleep while sitting up and was denied medical
attention after he complained of pain because of the handcuffing.
He recalls that an unknown officer charged him and that Const Amoomo
took him to court between 10h00 and 11h00. He complained to the
presiding magistrate that he had been arrested illegally. He
was eventually warned to return to court for the next appearance.
Const Amoomo took him back to the police station at 12h00 and he was
released at 13h00.
He had his wallet containing his driver’s licence on him the
whole time at the scene and while he was in custody. The
Hyundai’s key he received back at the charge office. His
vehicle had been parked in the sun ‘as abandoned.’
He denied that his driver made any illegal U turn. The notice
to appear issued by Sgt Auchas was shown to him in court, to which he
replied that he was seeing it for the first time.
He denied that he was drunk that evening or that he sat on the
He is a member of the Namibian Police who testified in his personal
capacity. He resided at the Namibian Police flats. On Sunday, 19
March 2006 during the afternoon he was invited by the plaintiff to
join him at Mr Taapopi’s home in Otjomuise for a braai and a
celebration of the marula tree. He went there by taxi with Mr
Thomas Numbala. He found the plaintiff, Mr Taapopi and a female
person there. They all, except Mr Taapopi drank some of the marula
drink, but they were not drunk. Past nine o’clock they
left in the Hyundai with Mr Taapopi driving. They returned to the
city centre along John Meinert Street and Mandume Ndemufayo past the
Wika service station. The driver did not make the turn
described by the witnesses for the first defendant. Between
22h00 and 23h00 he and Mr Numbala were dropped off at Ausspannplatz,
whereas the plaintiff and Mr Taapopi continued along Independence
Avenue in the direction of the Kalahari Sands Hotel. The plaintiff
told him the next afternoon about his arrest and detention. He
agreed that he could not dispute that the plaintiff was found behind
the Hyundai’s steering wheel at about 2h30.
Chief Insp Shikongo’s evidence was confirmed in all material
respects by Sgt Thomas Numbala, a member of the Namibian police who
also testified in his personal capacity. He could not recall at
what time they left the celebration, but estimated that they were
dropped off between 22h00 and 23h00. He called the plaintiff on
his cell phone early the next morning at about 8h00 because they are
friends and to hear how he had arrived home. The plaintiff said
that he was safe but that he had been caught and that he was in
pain. He later heard from Chief Insp Shikongo that the
plaintiff had been arrested for drunken driving. They never
thought to inform the police that the plaintiff was not the driver.
He further confirmed that the plaintiff was transferred to Windhoek
at the end of 2004.
He could not say since when he knew the plaintiff. On 19 March
2006 he went to visit the plaintiff at his home in Eros as he usually
does. From there they went to his brother’s house in Otjomuise
where they had the marula celebration. He did not drink
anything. He further confirmed the evidence given by the
He further stated that the vehicle that stopped them was a City
Police van. The two officers did not ask who had been driving
the Hyundai. They said that the plaintiff was under the influence of
liquor and contacted a colleague to come and test the plaintiff.
He estimates that they waited about 30 minutes until a female officer
arrived. The plaintiff blew twice but the device did not
function. He told the officers that he was the one who drove
the vehicle, but they did not listen, they just focussed on the
He confirmed that the plaintiff travelled to the police station in
the Hyundai and that the police van was left behind. They waited
there while the one officer and the female officer left. After
a while they returned and instructed plaintiff to get into the van to
go to the hospital to have a blood sample taken. The plaintiff
refused to get into the van and wanted to travel in his own vehicle.
The police handcuffed him and pushed him inside. He decided to
accompany the plaintiff. At the hospital the plaintiff could
not get out and the officers had to drag him out by his legs. He
remained at the van while the plaintiff was taken inside.
Afterwards they all returned to the police station and the plaintiff
was locked up. One of the police officers took the witness
None of the officers introduced themselves that evening, but he could
see that they were wearing City Police uniforms.
of the witnesses and the evidence
The witnesses called for the defendants generally made a favourable
impression on me. They gave their evidence in a clear and
The plaintiff, on the other hand, made a very poor impression on me.
He tended to be longwinded and argumentative. His testimony,
both in chief and under cross-examination, is riddled with
contradictions, improbabilities and absurdities. I shall
mention only some of the most glaring.
The plaintiff’s version is that Mr Taapopi drove his vehicle as
he always does because he uses Mr Taapopi as a driver. The
reason for this is that he did not know Windhoek well enough at the
time to drive. When he was asked how long before the incident
he moved to Windhoek, he claimed not to recall, which is in itself
unlikely. Later when it was put to him that he moved to
Windhoek in 2004, he stated that he had no answer to give. His
own witness, Sgt Numbala later confirmed that the plaintiff did
indeed move to Windhoek at the end of 2004.
It is clear from the cross-examination by Mr Erasmus on behalf
of the first defendant that the plaintiff had ample time and
opportunity to become acquainted with the streets of Windhoek and
that since 2005 he had the use of the Hyundai. His answer that
he did not look around when he travelled by taxi is improbable.
I agree with counsel’s suggestion that the plaintiff falsely
attempted to create the impression that he did not know Windhoek well
enough to drive and therefore used the services of Mr Taapopi that
The plaintiff adapted his version as the case went on. For
example, he stated in further particulars that he was stopped by the
police between 21h00 and 22h00. The version put to Const
Silumbu, the first witness, by the plaintiff’s lawyer, is that
the incident occurred at about 22h00 just after Chief Insp. Shikongo
and Sgt Numbala were dropped off at Ausspannplatz. However,
when Const Silumbu clearly testified during cross-examination the
second defendant’s lawyer that he only came on duty at 22h00
and had to attend the duty parade which lasted about 30 Minutes, it
became evident that the stopping could not have occurred at 22h00.
Const Silumbu was corroborated in this respect by Sgt Auchas.
Only after this evidence was given did the plaintiff’s version
change to state that he and his friends left the party in Otjomuise
between 22h00 and 23h00, but before midnight. The pleadings
were however not amended to reflect this.
Apart from this adaptation the plaintiff’s evidence about the
times that various things happened was contradictory. Although
the plaintiff clearly stated in his further particulars that they
waited for approximately two hours for Sgt Auchas to arrive, he never
stated this in evidence and only mentioned ‘a long time’.
It was also not put to the defendants’ witnesses that they
waited two hours. In cross-examination he stated that he could
not say how long they waited for Sgt Auchas to arrive as he had no
watch. All he knew is that she came after a while. He could not
explain why the answer was given in the further particulars that he
waited for approximately two hours for her to arrive. In his
view these two versions were consistent.
In his pleadings the plaintiff alleged that he was only charged
between 11h00 and 12h00 on 20 March 2006. However in testimony
he stated that this occurred between 10h00 and 11h00 and that he was
brought back from court at 12h00.
Another aspect is his evidence about the stopping by the police. He
said he noticed the blue light because it lights up one’s car
inside. When it was put that the City Police car was close to
his vehicle, he stated that the blue light is visible from
afar, even if behind because it would be visible in the rear view or
side mirrors. When he was pertinently asked how far the
police vehicle was when the light was put on, the plaintiff then
answered for the first time rather startlingly that they had already
stopped by then, but he was evasive when invited to state the reason
why. He was also evasive when asked to estimate how long they
had stopped before the police vehicle also stopped. He did say,
though, that he and Mr Taapopi were already outside on the pavement
and let slip that they ‘expected’ the police to confront
them. When asked why they expected this, he, curiously, said he
did not know. When further pressed he then denied that he used
the word ‘expected’, but he also did not make a
He said he and Mr Taapopi did not say anything to each other when Mr
Taapopi stopped. Yet they both got out in order to wait on the
pavement. This is also rather strange.
When he saw the blue light and heard the siren, he expected the
vehicle to be an ambulance, a police vehicle or an official escort
vehicle. He said the van looked similar to a police vehicle and
the uniforms looked similar, but he was surprised when he did not see
the officer’s wearing name badges or rank insignia.
Nevertheless he did not instruct his lawyer to cross-examine the
officers on this issue when they testified that they had been
inspected at the duty parade. He gave a nonsensical answer,
saying that he did not give such instructions ‘because people
do get robbed by people using police vehicles and police uniforms’.
The reason why he spoke Oshiwambo was because he was entitled to
speak his own language. He could not explain why he did not
switch to English when he heard that Const. Amukwaya had difficulty
interpreting correctly in English.
In cross-examination he stated for the first time that when he was
accused of driving while drunk, he denied being the driver and stated
that Taapopi was the driver and that the latter also said so.
He said none of the officers asked him or Taapopi for their licence
and none asked Taapopi to blow, even though they both told them that
Taapopi was the driver. He could not explain why, expect to say
that in many instances police officers behave very badly when they
appear on the scene. In my view it is highly improbable that if
they had said that Mr Taapopi was the driver the police would have
ignored this, unless they were very sure that they found the
plaintiff behind the wheel. If they did not and they were
unsure, it is probable that they would have tested Mr Taapopi as
well, as Const Silumbu testified. It is also probable that the
officers asked for the driver’s licence as the incident
involved a driving offence.
It was put to him that when Const Silumbu wanted to show his
appointment certificate, the plaintiff said that he did not have to
show it, he knew they were police officers. To this he replied
that there were no appointment certificates shown and that the
officers only fetched these after the arrest. I find this most
improbable. If they did not have them in the first place, why would
they fetch and show them later?
The plaintiff testified that he only accepted that the first
defendant’s witnesses were indeed police officers and peace
officers on the day before he testified. If this is so one wonders on
what basis he instituted the proceedings and made allegations that
they were indeed police officers!
At the point he testified he still did not accept that they were on
duty on 19 – 20 March 2006 because they came on duty with a
breathalyzer that did not work! He obstinately insisted that
the first breathalyzer did not work because it printed no result in
spite of being informed that that type of device does not have the
capability of printing a result.
Later he testified that he did not know whether the first three
witnesses were indeed police officers because they did not follow the
correct procedure by law before they took the alcohol test.
However, when invited he could not state what the correct procedure
was and that they should know! At a later stage he set out a
certain steps to be followed, which amounted to the steps actually
followed by Const Silumbu and Sgt Auchas.
The plaintiff complained high and low about the fact that his rights
were not explained to him upon arrest. Even if this was not
done, there could hardly be any prejudice as he probably knew his
rights better than the police did bearing in mind that he was a
prosecutor before and a magistrate of several years’ standing
at the time. He did not explain why he required them to explain
things to him that he already knew. Such an explanation in any
event is not required to effect a lawful arrest.
His testimony that he travelled to the police station in the Hyundai
and that the van remained at the scene contradicts the version put to
the witnesses by his lawyer. He did not explain this
He testified that the police officers told him at the scene that they
would be taking him to the hospital to draw a blood sample for
alcohol. Yet he testified that when the blood was drawn at the
hospital, he did not know for what disease it was drawn!
At first he disputed the occurrence book entry by Const Goagoses, but
later said that she might have written it, but she was not there!
He complained about the injuries and pain caused by the handcuffs,
but he did not report these to the doctor who drew the blood even
though he was in such pain at the time that he could not make out if
the doctor was male or female as both males and females wear ear
rings these days!
When it was put to him that he clearly was confused that night, he
dismissed the suggestion by saying that everything that had been
stated about him was lies.
He testified that after his release he could not go to the doctor
about the injuries sustained because he had to go to Dordabis for
work the next day, which was a Tuesday, but did not explain why he
did not go on the Monday afternoon. He was at a loss when
confronted with the fact that the Tuesday was a public holiday,
namely Independence Day.
The plaintiff testified that when he was formally charged at the
police station, he was informed for the first time that the charges
against him were (i) drinking and driving; (ii) defeating the ends of
justice; and (iii) driving without a driver’s licence.
However, he was never charged with defeating the ends of justice.
In fact, on the defendants’ case they were not aware of any
allegation that the wrong person had been charged or that the wrong
person had been tested and such a charge had never been
investigated. To my mind this indicates that the issue of the
plaintiff not being the driver was never raised at all at the time,
but is only part of a story subsequently made up by the plaintiff and
I now turn to Mr Taapopi’s evidence, which was evasive and
vague on several material aspects, especially during
cross-examination. The following examples suffice.
He says they arrived at the marula party at about 16h00 and the
others drank throughout until they left. He did not want to give a
clear answer about their state of sobriety or otherwise. He said he
could not say if they were drunk, but their behaviour did not show
they were drunk. When asked whether any of the others could
have driven the vehicle he said that he cannot say ‘anything’,
but usually he drives plaintiff’s vehicle. When it was
suggested that at the age of 36 he should know if someone is drunk,
he evasively answered that ‘the drunkenness of people differs.’
When asked if he could see that if the plaintiff was drunk he said he
did not notice it, which is improbable. When confronted with
evidence of police officers about the plaintiff’s state of
drunkenness he said that it is very difficult for him to answer and
countered by asking an argumentative question, namely ‘If a
person cannot do anything how can he be handcuffed’? When
it was put that he was avoiding the question and ‘covering’
for his friend he evasively stated, ‘I did not see that he was
drunk.’ To sum up, he never actually denied that the
plaintiff was drunk.
He denied making a U-turn at Wika and that it is even possible to
make a U-turn where he drove. The latter is improbable.
He stated that he saw the blue light of the police vehicle behind
him. It was about 20 metres behind him when the siren sounded
and he immediately pulled to the left and parked the Hyundai.
He agreed that the police vehicle would have taken about 2-3 seconds
to come to a standstill behind him.
When asked to explain why he and the plaintiff got out of the vehicle
rather than wait for the police officers, he said that they were not
sure if the police were behind them and if the police were indicating
to them or to someone else. Yet he repeatedly stated in evidence that
only they were there. He also said that he thought that the police
vehicle was perhaps on its way to an emergency or that a convoy would
be passing. All this evidence is improbable and rather
indicates that he feigned not knowing the true reason for them being
pulled over. Any emergency vehicles could easily have passed
them without the need for pulling over. It is also unlikely
that a convoy would be passing there at that time of the morning.
He said that the officer called a female officer to come and test the
plaintiff because the latter was apparently drunk. When it was
put that he knew why she was called he suddenly became evasive and
said that he did not really understand what was said at the time.
After several questions he conceded that he did know that there was
another police officer on her way to test the plaintiff because one
of the officers was Oshiwambo speaking. The implication is that
this officer explained to them what was happening.
He contradicted the plaintiff’s evidence when he stated that
the female officer did explain to the plaintiff how to use the
During cross-examination Mr Taapopi stated for the first time that he
informed all three police officers that it was he who was the driver
and that he did so at the stage when they ordered the plaintiff to
get into the van to go to the police station.
Curiously, he never made a written statement that he was the driver.
He states that the plaintiff also did not ask him to make a statement
that he was the driver. In fact, they never even discussed the
possibility that he should make such a statement. All this
evidence tends, to my mind, to indicate that he was not the driver
and that he also never said to the police that he was the driver.
He also said that they waited for about 30 minutes for Sgt Auchas to
arrive, which is much shorter than the two hour period alleged in the
Mr Taapopi said in cross-examination that the plaintiff phoned him
the next day to say he was on his way to court. This was
between 09h00 and 10h00, which rather tends to confirm the police
evidence. Furthermore, it contradicts the plaintiff’s
evidence that he did not have his cell phone with him.
He further stated that he was dropped at home by two police officers
at home between 01h00 and 02h00, but by this time the blood had not
yet been drawn. I think that it is very unlikely that both Sgt
Auchas and the doctor would have written the incorrect time on Exh
As for Chief Insp Shikongo and Sgt Numbala, their demeanour in the
witness box was satisfactory. While their testimony does
support the evidence of the plaintiff and Mr Taapopi they cannot
testify about the crucial events that form the heart of this case as
they had already been dropped off, as Chief Insp Shikongo also
readily conceded. An unsatisfactory aspect of their evidence is
that they did not really explain why they never provided statements
to the investigating officer to attempt to clear their friend who was
wrongly accused, arrested and detained as one might have expected.
At the outset it is convenient to state that the onus to establish
that the plaintiff’s arrest and detention was lawful is on the
defendants. (Wood and Others v Ondangwa Tribal Authority and
Another 1975 (2) SA 294 (A) at p309; Minister of Law and Order
and Others v Hurley and Another 1986 (3) SA 568 (A) at p589;
Kabinet van die Tussentydse Regering vir Suidwes-Afrika en 'n
Ander v Katofa 1987 (1) SA 695 (A) at p730E-F; p739G–H;
Cabinet for the Interim Govt of SWA v Bessinger 1989 (1) SA
618 (SWA) at 621C-E).
The defendants both rely on section 40(1)(b) of the CPA, while the
second defendant in its plea relies also on section 40(1)(a) and
section 50 of the CPA. In argument, however, the focus fell on
section 40(1)(b) and section 50(1). It is convenient to set out
the relevant parts of these provisions.
Section 40(1)(a) and (b) provide:
Arrest by peace officer without warrant
A peace officer may without warrant arrest any person-
who commits or, attempts to commit any offence in his presence;
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from lawful
Section 50(1) provides:
Procedure after arrest
person arrested with or without warrant shall as soon as possible be
brought to a police station or, in the case of an arrest by warrant,
to any other place which is expressly mentioned in the warrant, and,
if not released by reason that no charge is to be brought against
him, be detained for a period not exceeding forty-eight hours unless
he is brought before a lower court and his further detention, for
the purposes of his trial, is ordered by the court upon a charge of
any offence or, if such person was not arrested in respect of an
offence, for the purpose of adjudication upon the cause for his
Schedule 1 of the CPA refers to, inter alia:
offence ............. the punishment wherefore may be a period of
imprisonment exceeding six months without the option of a fine.’
The offence for which Const Silumbu arrested the plaintiff is a
contravention of section 82(1)(a) of the Road Traffic and Transport
Act, 1999 (Act 22 of 1999). It is common cause that, by virtue
of the applicable penalty provision contained in section 106 of Act
22 of 1999, it is an offence referred to in Schedule 1.
Counsel for all three parties were further ad idem as to the
applicable legal position, which is set out further below.
In Duncan v Minister of Law and Order 1986 (2) SA 805 (A) the
Court stated (at p818G-819H:
so-called jurisdictional facts which must exist before the power
conferred by s 40 (1) (b) of the present Act may be invoked, are as
The arrestor must be a peace officer.
He must entertain a suspicion.
It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the Act (other than one particular
That suspicion must rest on reasonable grounds.
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may arrest the
The question whether the suspicion is reasonable must be approached
objectively and ‘the grounds of suspicion must be those which
would induce a reasonable man to have the suspicion’ (R v
Van Heerden 1958 (3) SA 150(T) at 152; see also De Jager v
Government of the Republic of Namibia 2006 (1) NR 198 (HC) at
p202I-203B; Mcnab and Others v Minister of Home Affairs No and
Others 2007 (2) NR 531 (HC) at p542D-I). In the McNab
case Angula AJ also said (at p542I-543A):
to the test for 'reasonable suspicion', Van der Spuy AJ in the matter
v Commander, Venda National Force
1989 (2) SA 813 (V) at 836I - J stated as follows:
is this 'reasonable suspicion' to be tested? Now it is clear that
'there must be an investigation into the essentials relevant to the
particular offence before it can be said that there is a reasonable
suspicion that it has been committed”. ‘
application of the law to the facts
Both Mr Erasmus and Mrs van der Merwe on behalf of the
defendants submitted that the jurisdictional grounds for an arrest in
terms of section 40(1)(b) were met on the facts of this case.
Mr Brandt for the plaintiff, correctly so, accepted that Const
Silumbu proved that he was indeed a peace officer at the time of the
incident as is also clearly stated in his appointment certificate, a
copy of which was handed in as Exh A.
It is also abundantly clear that Const. Silumbu indeed had a
suspicion that the plaintiff had committed the Schedule 1 offence of
driving under the influence of intoxicating liquor in contravention
of section 82(1)(a).
The only legal issue in dispute is whether Const Silumbu held that
suspicion on reasonable grounds and it is on this issue that Mr
Brandt concentrated in his submissions by traversing the facts
In this regard he submitted that there was nothing wrong in the
manner that the vehicle was driven, except for the alleged illegal
turn. He stated that this fact is not mentioned in Const.
Silumbu’s witness statement, which was referred to during
evidence. However, in the statement Const. Silumbu states that
while he was attending to a complaint at the Wika service station “I
spotted a car while I suspected the driver was drunk. And as I was
driving to the control room office I spotted the same car passing
through the traffic lights at the coner (sic) of Independence
Avenue and Sam Nuyoma Drive at a very slow speed. I followed the car
and stopped the driver ...... I asked him why he had made a wrong
turn first time I spotted his car.......”. There is
therefore no merit in this submission.
It is so that when Sgt Auchas wrote on the police docket in the
column a description of the ‘method and/or instrument used’
in committing the alleged offences, she stated: ‘By driving
N106055W Hyundai m/car in Indep Ave in front of Kalahari Sands Hotel
making a U-turn over the barrier lines’. This is not
quite accurate, but I take into consideration that this was a very
short summary giving only the barest details, which does fit in with
the fuller description given by Const Silumbu that the plaintiff
illegally turned and crossed from one side of Mandume Ndemufayo
Avenue to the other by entering a road in which there was a ‘no
entry’ sign. She stated in evidence that Const Silumbu
reported to her that the plaintiff had earlier made ‘a wrong
turn in Mandume’ and that he saw the Hyundai again in
Independence Avenue driving very slowly.
Mr Brandt submitted that a person as drunk as the police
officers described him would not have been able to react by stopping
the vehicle so promptly as he did. However, this is only one
aspect of the driving. The fact that he drove so very slowly
and not properly in his lane for no obvious reason tends to show that
the driver drove in this manner precisely because he was under the
Counsel for the plaintiff submitted that the plaintiff was adequately
corroborated by his three witnesses and that on the probabilities the
defendant’s did not relieve themselves of the burden on them to
prove that the arrest was lawful. In this context he submitted
that, on all the probabilities, the plaintiff did not drive the
vehicle that night.
It is not necessary to deal with all the submissions made on the
facts in view of the discussion of the facts earlier in this judgment
as well as the credibility findings made. Apart from all the
reasons already stated why the evidence of the plaintiff and his
witnesses is unsatisfactory, it suffices at this stage to state that
the probabilities indicate that Const Silumbu and his colleague were
intent on observing the conduct and driving of the driver of the
Hyundai precisely because it drew their attention. On all the facts
it is common cause that their van was very close to the Hyundai when
the blue light and siren were switched on and that the Hyundai came
to a standstill not far from the van. In my view it is
improbable that the plaintiff and Mr Taapopi immediately got out and
when to stand on the pavement for no good reason. I accept the
evidence of the police that they remained in the vehicle and that the
plaintiff was found behind the steering wheel.
Furthermore, I find it highly improbable that the police would ask
who the owner of the Hyundai is as this fact is completely and
obviously irrelevant in circumstances where they were concerned with
the manner in which the vehicle was being driven. In addition,
I accept the evidence that the police officers would have tested Mr
Taapopi as well if they had been told that he actually was the driver
in circumstances where they were uncertain.
In my view the evidence presented by the defendants sufficiently
establishes that the plaintiff was the driver that evening; that he
smelled of alcohol, that he was boisterous and argumentative; that he
was unsteady on his feet; that a preliminary reading showed the
concentration of alchohol in his breath to be far above the legal
limit, that he made an illegal turn, that he drove suspiciously
slowly for no good reason and not properly in his lane. All these
facts, objectively viewed are sufficient to provide a basis for
forming a reasonable suspicion that the plaintiff drove the vehicle
that night while under the influence of alcohol.
To sum up, the defendants have established on a balance of
probabilities that all the requirements for an arrest in terms of
section 40(1)(b) of the CPA were met. In so far as it may be
necessary, it may be stated that, in my view, the jurisdictional
requirements of section 40(1)(a) were also met as the offence was
committed in Const Silumbu’s presence. It further follows
that the plaintiff was lawfully detained in terms of section 50 of
the CPA and that, because he was unable to pay the bail amount set by
the police, he was lawfully further detained until he was released on
warning by the magistrates’ court.
The result is that the defendants’ liability for any damages
suffered by the plaintiff has not been established. As such the
plaintiff’s claim is dismissed with costs.
the plaintiff: Mr F C Brandt
of Chris Brandt Attorneys
the first defendant: Mr F Erasmus
of Francois Erasmus &
the second defendant: Mrs B van der Merwe
Office of the