NOT REPORTABLE

CASE NO.: I 588/2008

I 589/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SAVIOUR NDALA TUTALIFE First Plaintiff

POSTRICK MARIO MWINGA Second Plaintiff

and

MINISTER OF HOME AFFAIRS First Defendant

MINISTER OF DEFENCE Second Defendant

CORAM: PARKER J

Heard on: 2009 October 5 – 9; 2010 May 17 – 21

Delivered on: 2010 July 29

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JUDGMENT

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PARKER J: [1] The 1^st plaintiff and the 2^nd plaintiff are among a group of accused persons in a ‘treason trial’ presently underway in the Court. Each plaintiff instituted delictual action separately in July 2000. The plaintiffs’ claims arise from attacks that rocked Katima Mulilo (the regional administrative capital of the Caprivi Region) on 2 and 3 August 1999. The plaintiffs claim damages for alleged civil wrongs done to them by the defendants’ agents. The 1^st defendant is now the Minister of Safety and Security (i.e. since 21 March 2005).

[2] In appraising the evidence placed before me, I must keep in my mental spectacle the following approach which is distilled from the authorities (e.g. Harold Schmidt t/a Prestige Home Innovations v Heita 2006 (2) NR 555 at 559D; Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA); Kisco Twaimanyo Shakusheka; Masialeti George Liteseko v Minister of Home Affairs Case Nos. I592/2005 and I595/2008 (Unreported); U v Minister of Education, Sports and Culture 2006 (1) NR 168 (HC)).

[3] Thus, from the authorities it emerges that, where the onus rests on the plaintiff and there are two mutually destructive versions, as aforesaid, the plaintiff can only succeed if the plaintiff satisfies the Court on a preponderance of probabilities that the plaintiff’s version is true and accurate and therefore acceptable, and that the version on the opposite side is false or mistaken and should, therefore, be rejected. (National Employers’ General Insurance Co. Ltd v Jagers 1984 (4) SA 432; Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others supra.)

[4] Furthermore, as indicated below, the alleged delict consists of, according to the pleadings, (1) assault, (2) arrest and (3) detention. As respects the alleged assault (1), in order to succeed, each plaintiff must prove on a balance of probabilities that the agents of the defendants did assault him (Kisko Twaimanyo Shakusheka, et al supra; Lielezo v Minister of Home Affairs Case No. I590/2008 (unreported)). And in respect the alleged arrest (2) and alleged detention (3), the plaintiff must cross the threshold of proving that he was arrested (2) and that he was detained (3) before the defendants can be called upon to justify such of their actions. It follows that if a plaintiff fails to establish on a preponderance of probabilities that he was arrested (2) or that he was detained (3) that is the end of the matter. The reason for the proposition is elementary. It is not necessary to cite authority in support thereof: it is a matter of rudimentary logic. X cannot be called upon to justify that which X has not done.

[5] I will proceed to apply the aforegoing propositions to the present case. In doing so, I shall treat the 1^st plaintiff’s case first.

1^st Plaintiff

[6] It is important to mention at the outset that the 1^st plaintiff amended his particulars of claim in February 2009, followed by the defendants’ amended plea. The significance of these two events will become apparent in due course.

Claim A

[7] Under Claim A, the 1^st plaintiff alleges that he was assaulted on a three-time continua, and the 1^st plaintiff particularizes (a) the nature of the alleged assault, and (b) the alleged perpetrators of the alleged assault on each of those times, namely (set out here verbatim) –

1. from approximately 13h00 on 9 August 1999 at Katima Mulilo Police Station.

2. at approximately 09h00 on 10 August 1999 at Katima Mulilo Police Station.

3. on 12 August 1999, near Wenela border post.

[8] The 1^st defendant has denied that the 1^st plaintiff was assaulted. W.O. Kashawa denies that he assaulted the 1^st plaintiff. Kashawa testified that his involvement with the treason suspects, including, as aforesaid, the 1^st plaintiff, did not include interrogating suspects. In this, his testimony is corroborated by the testimonies of Siluka, Haikali, Karstens, Philander, Simasiku, Popyeinawa, Kanyetu and Maasdorp. Constable Siluka also denies that he assaulted the 1^st plaintiff. Siluka’s uncontradicted evidence was that because of his disability occasioned by an attack on him by a lion he only did light work at the Police Station like the cleaning of offices. He testified further that as a result of the said disability he was incapable of assaulting the 1^st plaintiff in the manner described by the 1^st plaintiff.

[9] As respects Kashawa, Ms Conradie submitted that Kashawa could have been involved in the 1^st plaintiff’s assault. And why does counsel say so? The basis of counsel’s submission is that W.O. Kashawa was evasive about when, how often and for what purpose he used his office at the Katima Mulilo Police Station. I do not think all this is capable of tipping the scale of probabilities in favour of the 1^st plaintiff that his testimony is possibly true. Kashawa’s evidence is that his Unit, the Special Field Force (SPF) kept an office in the Katima Mulilo Police Station, and he worked from there at times; otherwise his operational base was Katoonyana SPF Base. In this regard, it must be remembered that the SPF is one of the units or departments (I use ‘department’ in its literal and non-technical signification.) of the Namibia Police (Nampol). The evidence that is possibly true is that not being part of the interrogation team of the ‘treason’ suspects, Kashawa could not have assaulted the 1^st plaintiff at the Katima Mulilo Police Station; he did not have dealings with him. Furthermore, the piece of evidence which I find to be rather credible and which buries the 1^st plaintiff’s evidence that he was assaulted at the Katima Mulilo Police Station is the uncontradicted testimony of Karsten (former ‘white man’ police officer of Nampol). Karsten refutes the 1^st plaintiff’s evidence that the plaintiff was assaulted at the Police Station by police officers; and what is more, Karsten refutes the 1^st plaintiff’s evidence that he intervened and reproached his fellow officers for their conduct and also that Karsten stopped the assault on the 1^st plaintiff.

[10] Added to all the above is this. From the totality of the evidence I make the following factual findings. The 1^st plaintiff willingly and voluntarily reported to his community’s Khuta in Chinchimani for protection. I reject as false the 1^st plaintiff’s evidence that he had reported himself to the Khuta because he had left the country illegally and returned illegally. No law was referred to me to support the plaintiff’s assertion, and the 1^st plaintiff has not proved that the 1st plaintiff had heard it aired on the NBC Silozi radio programme that those who returned to the Caprivi Region after the aftermath of the armed attack should report themselves to their traditional leaders. From the entire population of the Caprivi Region not one single witness was called to corroborate the 1^st plaintiff’s assertion. But there is the uncontradicted evidence of Mr. Nandu, an NBC employee and an executive producer for radio in Silozi at Katima Mulilo at the material time that no such broadcast was ever made. And above all, no such instruction is found in the Emergency Regulation (Exh V) that was promulgated to deal with the aftermath of the armed attack.

[11] Furthermore, I make the factual finding that at the Katima Mulilo Police Station the Police considered the 1^st plaintiff as someone who had potentially useful information that would assist the Police in their ongoing investigation into the aforementioned armed attack on Katima Mulilo. Knowing that he had reported himself voluntarily to the Chinchimani Khuta and had been taken from the Khuta to the Police Station, and knowing that that would be news which would spread in the community and its environs, in my opinion, against the backcloth of all this, the 1^st plaintiff did not feel safe to return to the community, not knowing what his confederates who were still at large would take him for – a sell out, a turncoat or an informer, and that he would rather remain with the law enforcement personnel. Thus, that the 1^st plaintiff was considered many things by different law enforcement personnel at different times, that is, as aforesaid, as someone who had voluntarily sought sanctuary at the Police Station, or as someone who had potentially useful information, or as an informer cannot take the 1^st plaintiff’s case any further: it cannot increase ‘the improbability’ in favour of the 1^st plaintiff, contrary to what Ms Conradie argued.

[12] It must be remembered that at that material time, although the said armed attack had been contained by the law enforcement and security personnel, not all the attackers had been put out of commission, considering the broadcast on the NBC Silozi radio programme made by the 2^nd plaintiff, calling on his confederates to abandon their enterprise and give up. (As I have already said, I shall deal with the 2^nd plaintiff in due course.) It is therefore reasonable to say that at that moment in time the law enforcement and security personnel were still conducting mop up operations in order to pacify the Caprivi Region and its capital. Under those circumstances, it is more probable than not that caught between the Scylla of facing the wrath of his confederates (as described previously) and the Charybdis of being captured by the law enforcement and security personnel, the 1^st plaintiff preferred to report himself willingly to the Khuta and he preferred to stay voluntarily at the sanctuary of the Katima Mulilo Police Station for his own protection.

[13] That being the case, as I have held it to be so, it is possibly true that the 1^st plaintiff’s protectors would not, and did, not assault him: they would have no reason or excuse to assault him. In this regard, I have no good reason to reject Det. Popyeinawa’s evidence that the 1^st plaintiff was not treated as a suspect at the outset and that he was not assaulted. Accordingly, I accept as bona fide and good (considering the dangerous situation existing at the material time and discussed below) the explanation by some of the defence witnesses that the 1^st plaintiff was entered in the OB (the Occurrence Book) at the Katima Mulilo Police Station as a ‘suspect’ as a stratagem. The authorities suspected that there were some police personnel who were sympathetic to the ‘cause’ of the attackers and it was also a ruse designed to ensure that the 1^st plaintiff was given food by the Police Station without compromising his safety. For these reasons the 1^st plaintiff was not entered in the OB as ‘for safekeeping’, a label as Ms Conradie argued suited his position at the Police Station, if the Police there to be believed. In my opinion, if that was done it would have stultified the purpose why the 1^st plaintiff was kept at the Police Station in the first place, i.e. for his own voluntary protection, and it would have been, with the greatest deference, foolish on the part of the Police in the extreme to have done that.

[14] It could be that in 2010 in the comfort and security of Windhoek, other people might think that it would have been truly reflective of the characterization of the true reason why, according to the defendants, the 1^st plaintiff was at the Katima Mulilo Police Station if ‘for safekeeping’ had been entered against the 1^st plaintiff’s name in the OB. Such a view is really of no consequence. The fact that that was not the entry made in the OB cannot, considering the reasoning and conclusion I have set out previously, lead to only one reasonable inference in the circumstances, namely that the 1^st plaintiff was held as a suspect at the Katima Mulilo Police Station with effect from 9 August 1999 and that he was assaulted while held there as a suspect.

[15] In this regard, it must be remembered, as it emerged from the cross-examination-evidence, which Ms Conradie elicited from the Nampol personnel, that those were unsettled and dangerous times: there has just been an armed attack on a regional capital of Namibia during which some people had lost their lives and State property had been destroyed and, above all, the attackers had not yet been put completely out of commission, as aforesaid. Thus, what had happened in Katima Mulilo was, therefore, not anything like a group of harmless and unarmed community women marching peaceably to the district magistrates’ court in order to present a petition to the learned magistrate that a person accused of rape of a child girl and was standing trial in the court for the offence should not be admitted to bail.

[16] From the aforegoing, I hold also that the 1^st plaintiff’s evidence that he was kept at the Katima Mulilo Police Station at some imaginary ‘killing room’ and without food from 9 to 12 August 1999 cannot possibly be true.

[17] To the factual findings and conclusions I have made previously concerning the claim of assault by the 1^st plaintiff should be added the following. (1) The 1^st plaintiff avers that he was assaulted by an immigration officer at the Katima Mulilo Police Station in the presence of Sgt. Veldskoen. Sgt. Veldskoen denies this. We have only the say-so of the 1^st plaintiff. I accept the evidence that immigration officers sometimes went to the Katima Mulilo Police Station. I also accept the evidence that they went there to deal with illegal immigrants. I do not see that to be ‘a strange coincidence’, as Ms Conradie submitted. It is my view that their reason for going there is good and bona fide. It cannot, therefore, be seriously argued that because immigration officers went to the Katima Mulilo Police Station occasionally the only reasonable inference that can be drawn is that one of the immigration officers assaulted the 1^st plaintiff in August 1999. Accordingly, I find that the 1^st plaintiff’s evidenced as respects this averment cannot possibly be true. (2) It is the 1^st plaintiff’s case that as a direct result of the alleged assaults he was treated by medical personnel at Grootfontein prison. The records in that prison for the material time do not support the 1^st plaintiff in his averment. (3) Ms Conradie submitted that the 1^st plaintiff (when he appeared before Magistrate Pietersen (Diergaardt)) mentioned that he had been sjambokked but the learned magistrate ‘did not record the scar which she saw on his back’; and so, according to counsel, this ‘confirms Tutalife’s (i.e. the 1^st plaintiff’s) evidence that he had, inter alia, been “sjambokked”.’ It could be that the learned magistrate acted as she did because she did not believe that the scar she saw on the plaintiff’s back could have been caused by a sjambok strike only. Counsel’s submission, therefore, with respect, does not add any weight. (4) The same learned magistrate who was so meticulous that she noticed a scar of the 1^st plaintiff did not notice any injuries on the 1^st plaintiff. In addition, the same learned magistrate who was told by the 1^st plaintiff that he had been sjambokked was not shown any injuries by the 1^st plaintiff. (5) Furthermore, it is inexplicable that the allegations that the 1^st plaintiff was injured by a bayonet, that he was sjambokked and that he lost a molar were inserted in February 2009, but not in July 2000 when the events they relate to should have been fresher in his memory. Accordingly, I put these additions down as constituting an afterthought and so no weight can be put to the plaintiff’s evidence concerning those matters.

[18] I have carefully considered the evidence on both sides of the suit. I have applied my mind not only to the merits and demerits of the evidence on both sides of the suit and to their probabilities. Having done so, I accept the version of the witnesses of the defendants on the material aspects of the case to be possibly true and I reject the version of the plaintiff and his witnesses as possibly false. Accordingly, I hold that the 1^st plaintiff has failed to discharge the onus cast on him as respects Claim A. It would therefore be unfair and unsatisfactory for me to hold that the 1^st plaintiff has established on a preponderance of probabilities that he was assaulted as he claims.

Claim B

[19] I now proceed to consider the 1^st plaintiff’s Claim B under which he essentially claims he was unlawfully arrested and unlawfully detained. In particular the 1^st plaintiff avers that:

1. he was arrested –

on 9 August 1999 at Katima Mulilo by an unknown Nampol member.

2. He was detained –

(a) from 9 to 22 August 1999 at Katima Mulilo Police Station.

(b) from 22 to 26 August 1999 at Grootfontein prison.

(c) from 26 to 27 August 1999 the (Windhoek) headquarters of Nampol.

(d) from 27 August to 17 November 1999 at Hou Moed.

(e) from 17 to 22^nd November 1999 again at Grootfontein police station.

[20] I shall now deal with paras (1), (2)(a), (2)(b), (2)(c), (2)(d), and (2)(e), in the above expressive representation of the 1^st plaintiff claim under Claim B, and in doing so, I shall apply the principles of law I proposed previously.

[21] I have already dealt with (1) and (2)(a), and so I do not proposed to rehearse the treatment of (1) and (2)(a) here. Suffice to make the following point, considering the reasoning and conclusions set out previously concerning the 1^st plaintiff being at the Katima Mulilo Police Station on 9 August 1999. I find that the 1^st plaintiff was not arrested by the 1^st defendant’s agents (in Nampol) on 9^th August 1999, and also that he was not unlawfully detained at the Katima Mulilo Police Station from 9 to 22 August 1999. The fact that Philander, who took down the 1^st plaintiff’s statement on 9 August 1999 (Exh A), could not confirm whether the 1^st plaintiff was locked at night is of no moment. As I have demonstrated below the Police gave the 1^st plaintiff sanctuary which the 1^st plaintiff voluntarily requested. The police were therefore entitled to protect the 1^st plaintiff by any legitimate and lawful means; otherwise they would have failed in a duty which they assumed willingly.

[22] On the strength of the principles of law proposed previously, I conclude that the 1^st plaintiff has failed to cross the threshold of establishing that he was unlawfully arrested and unlawfully detained ((1) and 2(a)) and so the defendants cannot be called upon to justify a non-existent arrest and a non-existent detention (under paras (1) and 2(a), above).

[23] I pass to consider 2(b), above; and in doing so, I must unavoidably trace my steps back to the conclusion I have reached previously under paras (1) and (2) in my expressive representation above, namely, that the 1^st plaintiff sought voluntary sanctuary at the Katima Mulilo Police Station; he was not a detainee at that Police Station.

[24] I now take the enquiry to the next level; that is, into para (2)(b). The evidence which I accept as possibly true is this. It is not far fetched to say that as time went on, more and more suspects were brought in, and detained at, the Katima Mulilo Police Station. It is therefore not improbable that the 1^st plaintiff would no longer feel safe in Katima Mulilo, the regional capital of Caprivi Region, which together with the Ohangwena and Oshana Regions are the smallest regions of the country in terms of geographical expanse. It is also not improbable that the 1^st plaintiff requested to be relocated to a place far away from the Caprivi Region, where he is known, to a place, where he is a complete stranger, as Popyeinawa testified. I also accept as possibly true that the authorities suggested the Gobabis area and the 1^st plaintiff agreed to go there.

[25] In this regard, one must not lose sight of the fact that in human experience when X voluntarily puts the protection of X’s person in the hands of another person Y and Y assumes that responsibility willingly and Y is minded to be serious and conscientious in protecting X, Y should have some leeway in deciding the best legitimate way, in Y’s view, Y can carry out such responsibility effectively, particularly where Y is a State institution. Accordingly, I do not see anything wrong in law in the conduct of the 1^st defendant in taking the 1^st plaintiff to Hou Moed which is not a prison and which has no ‘holding’ cells but a police training establishment and far away from the Caprivi Region. And what is more, as I have accepted, the 1^st plaintiff agreed to that arrangement. That being the case, I accept the defence evidence to be possibly true that the 1^st plaintiff did not travel in the company of the ‘treason’ detainees on a truck that conveyed the detainees to Grootfontein, as I have shown below.

[26] From what I have said previously, it would have been a dereliction of duty on the part of the authorities if they had conveyed the 1^st plaintiff together with the detainees in the same truck. I therefore find that from the totality of the evidence I find it established that Popyeinawa and the 1^st plaintiff rode in a car driven by Popyeinawa from Katima Mulilo to Grootfontein and Popyeinawa and the 1^st plaintiff stayed in Kaipiti’s house. Mr Kaipiti is a Prisons Officer and his residence was in the grounds of the Grootfontein prison.

[27] The 1^st plaintiff’s insistence that he did travel to Grootfontein together with detainees in a truck and that he was kept at the Grootfontein prison cannot possibly be true. His evidence is contradicted by Popyeinawa who, as I have found above, drove him from Katima Mulilo to Grootfontein, and that two of them stayed in Mr Kaipiti’s house. Mr Kaipiti corroborates Popyeinawa’s evidence that Popyeinawa and the 1^st plaintiff stayed in his house. Mr Kaipiti is a Prisons Officer and at the material time his official residence was in the grounds of the Grootfontein prisons.

[28] As to para (2)(c); the evidence is clear that the police detail that took the 1^st plaintiff to Hou Moed sojourned at the National Police Headquarters of Nampol on Lazarett Street, Windhoek (Nampol HQ). There is not one iota of evidence capable of establishing that the 1^st plaintiff was detained at Nampol HQ. Ms Conradie sought to elicit evidence that the 1^st plaintiff was detained because he was not free to leave the Nampol HQ and there were police officers carrying firearms in the foyer of the HQ where the 1^st plaintiff sat on a bench. That is the national headquarters of a national police force. What is so unusual and illegal that members of the force stationed there should be carrying firearms as they went about their official duties? Indeed, it would be monumentally naïve for anyone to argue that if the 1^st plaintiff was not a suspect who was detained, then no police personnel should carry arms in the proximity of the 1^st plaintiff. There is not one jot of evidence that police personnel sat close to the 1^st plaintiff where he sat on a bench, or that anyone pointed a gun at him while he was there. What is more, there is not one grain of evidence that the 1^st plaintiff asked to leave the Nampol HQ and his request was turned down.

[29] As I have concluded previously, the Police had willingly agreed to protect the 1^st plaintiff who had voluntarily sought their protection. The Police were entitled to do anything legitimate and lawful in the execution of the responsibility that the Police had assumed willingly. Whether later on, after interviewing the 1^st plaintiff, the protectors felt that the 1^st plaintiff had potentially important information that would assist the Police in the aforementioned ongoing investigation cannot by that fact alone change the reason why the 1^st plaintiff was being kept by the Police; neither can it detract from the factual findings I have made and conclusions I have reached in this regard; that is to say, at all material times the 1^st plaintiff was not considered a suspect up to the time frame in para (2)(c) and he was not a detainee.

[30] I pass to deal with para (2)(d). As I have concluded previously the 1^st plaintiff was, with his consent, in Hou Moed for his own protection which he voluntarily sought from the Police and which the Police willingly gave. I have already held that there is nothing unlawful for the 1^st defendant’s agents who had willingly assumed the responsibility of protecting the 1^st plaintiff, at the 1^st plaintiff’s request, to keep him at any place the agents considered safe, after the 1^st plaintiff had agreed to go to such place; and Hou Moed cannot be taken out of the equation.

[31] Munyika testified that the 1^st plaintiff could not leave Hou Moed without permission, and he would have sought such permission from Naukosho. Flowing from this Ms Conradie submitted rhetorically, ‘Why was this necessary if he was there for protection?’ This retort adds no weight. If Y agrees to protect X, particularly when Y is a State institution with a considerable amount of resources at its disposal, Y must know where X is at any moment in time; otherwise how can Y protect X effectively. Wouldn’t Y look foolish if Y the protector did not at any moment in time know where X the protectee is, if I may ask rhetorically? In any case, there is no evidence that the 1^st plaintiff asked for permission to leave Hou Moed and his request was refused. Furthermore, I accept, as I have found previously, that there were at the material time no ‘holding’ cells at Hou Moed and that the plaintiff shared quarters and meals at Hou Moed with other police personnel who were staying there.

[32] The aforegoing compel me to the following conclusion. I do see why the defence witnesses would lie, but the same cannot be said for the 1^st plaintiff. The 1^st plaintiff is still held in custody together with people some of whom he had named in his statements to the Police (Exh A) in which he had at that time played down his own role in the attack on Katima Mulilo and highlighted the role of some of the detainees, and later Exh B. It may not be safe for him to admit that he voluntarily sought refuge with the Police during which time he made the said statements and collaborated with the Police; to admit that when those detainees were being transported to Grootfontein prison in trucks he drove in a car in the comfortable company of Popyeinawa, a Nampol personnel who was involved in the ongoing investigations; to admit that upon his agreement he was sent to Hou Moed to continue his life of police protectee; to admit that he sojourned at the Nampol HQ before being taken to Hou Moed; and to admit that at Hou Moed he was not locked up as a detainee but was treated as a guest of the people at Hou Moed, sharing meals and quarters with them.

[33] Accordingly, I hold inexorably that the 1^st plaintiff has failed to establish that the agents of the 1^st defendant wrongly and unlawfully deprived him of his liberty (of movement) and detained him at the Grootfontein Prison (para (2)(b), at Nampol HQ (para (2)(c), and at Hou Moed (para (2)(d).

[34] The aforegoing reasoning and conclusion apply also to Ms Conradie’s argument concerning Simasiku’s evidence that if the 1^st plaintiff had left the Katima Mulilo Police Station they (i.e. the Police) would have gone to look for him. Counsel argued, ‘This is strange, seeing as the impression was created that Tutalife could come and go as he liked.’ I understand Mr. Simasiku’s evidence to mean that if the 1^st plaintiff had left the premises of the Katima Mulilo Police Station without any police woman or police man in authority there knowing that the 1^st plaintiff had left the Station or without knowing the 1^st plaintiff’s whereabouts, the Police would have searched for the 1^st plaintiff. With the greatest deference, I do not see anything strange or incredible about what Simasiku said in his testimony. Why should Y willingly take the responsibility to afford sanctuary to X who asks for it voluntarily if Y would not take the necessary steps required for Y to know where X was at any moment in time? It would be a mark of inexcusable carelessness on the part of Y if Y failed in that department. Thus, what would be strange, in my opinion, would be Y failing in that regard.

[35] I proceed to consider para (2)(e). Under this paragraph the 1^st plaintiff avers that he was wrongly and unlawfully deprived of his liberty and detained from the afternoon of 17 November 1999 to 22 November 1999, when the plaintiff appeared before a magistrate. Commissioner Maasdorp’s uncontradicted evidence is that the 1^st plaintiff was only arrested on 17 November 1999 in the Windhoek district police station when he decided that there was sufficient and probable cause and lawful reason to arrest the 1^st plaintiff. Ms Conradie submits that it is significant that Commissioner Maasdorp testified that he would have charged the 1^st plaintiff ‘from the beginning’, that is after the 1^st plaintiff had made a statement before Det. Insp. Philander on 9 August 1999, ‘yet neither Popyeinawa nor Philander thought the statement sufficient for him to be arrested, if their version in this regard can be believed.’ It must be remembered that Nampol personnel have their own individual minds; and above all, like in any other ordered organization in Nampol, too, there must be in existence, in my opinion, differentiations in experience and powers of deductive reasoning. I do not think any inference of probative value can be drawn from Commissioner Maasdorp’s testimony in that regard. Accordingly, I do not, with respect, accept Ms Conradie’s submission that something significant should be read into the fact that Philander and Popyeinawa did not think sufficient grounds existed to arrest the 1^st plaintiff at the beginning of August 1999 and Maasdorp held a different view. It must be remembered that even in August 1999, Maasdorp was a very senior police officer, and, indeed, senior to both Philander and Popyeinawa, and so Maasdorp, in my opinion, is entitled to his ‘senior’ and ‘more experienced’ view.

[36] In this regard the credible and unchallenged evidence which has probative value for my present purposes is that having decided that there was probable cause and lawful reason to arrest the 1^st plaintiff, Maasdorp did arrest the 1^st plaintiff in Windhoek on 17 November 1999 (as aforesaid) and the 1^st plaintiff was taken to the Grootfontein police station the same day. The 1^st plaintiff then made his first appearance on 19 November 1999 before a magistrate in the person of Ms Alexis Pietersen Diergaardt, who testified as one of the defence witnesses. In this regard, it is worth noting that it has not been established that in all this the 48-hour rule under Article 11 (3) of the Namibian Constitution was breached; neither has it been established that Maasdorp did not have lawful reason to arrest and detain the 1^st plaintiff within the meaning of s. 39, read with s. 40, of the Criminal Procedure Act, 1977 (Act 51 of 1977). Accordingly, having carefully applied my mind not only to the merits and demerits of the evidence of the side of the plaintiff and the defendants, I accept the defendants’ witnesses’ version on the aspect of the 1^st plaintiff’s Claim B as possibly true and I reject the version of the plaintiff and of his witnesses as possibly false. That being the case, I hold that the 1^st plaintiff has failed to establish that he was wrongly and unlawfully arrested and detained as he claims in his particulars of claim.

[37] All this disposes of the 1^st plaintiff’s claims under Claim A and Claim B. I hold, as I do, that both Claim A and Claim B fail.

2^nd Plaintiff

[38] I now proceed to determine the 2^nd plaintiff’s claims as set out in his particulars of claim. In doing so, I keep firmly in my mind’s eye the principles of law that I proposed previously in respect of the 1^st plaintiff’s claims. I shall apply those selfsame principles to the factual findings that I make respecting the 2^nd plaintiff’s claims.

Claim A

[39] Under this head the 2^nd plaintiff avers the following, set out verbatim et literatim:

(1) Plaintiff was assaulted and/or was subjected to torture or cruel, inhuman or degrading treatment or punishment and/or his dignity was violated in conflict with the provisions of Article 8 of the Namibian Constitution and/or his common law rights to personality by certain members of the Namibian Police, alternatively acting under the direction or control of members of the Namibian Police, further alternatively in the presence of members of the Namibian Police in the following respects, times and places:

(a) On 27 September 1999 at approximately 22h00, and at Sifuwe village, Caprivi, Plaintiff was, whilst his hands being handcuffed behind his back, taken into the bush and a member of the Namibian Police known to Plaintiff as Gideon Kashawa shot several shots between his legs and also threatened to kill him.

(b) On 27 September 1999 at approximately 22h30 and whilst being transported from Sifuwe village to Katima Mulilo, plaintiff was ordered to jump off from the fast moving motor vehicle.

(c) On 27 September 1999 Plaintiff was beaten and hit several times all over his body with a riffle butt by a member of the Namibian Police known to Plaintiff as Gideon Kashawa.

(d) On 28 September 1999 during the evening hours and at the Katima Mulilo police station, Gideon Kashawa put a gun against Plaintiff’s stomach forcing him to sign a statement.

(e) On 28 September 1999 at approximately 8h30 until approximately 17h30 and at the Katima Mulilo police station, Plaintiff was, whilst being blindfolded, interrogated by several police officers, one being Gideon Kashawa.

(f) On 29 September 1999 at approximately 15h00 and at the Katima Mulilo police station, Plaintiff was at gunpoint forced to read out a statement on the NBC radio.

(g) On 29 September 1999 at approximately 10h00 and at the Katima Mulilo police station, Plaintiff was instructed by Gideon Kashawa to take off all his clothes and Plaintiff’s hands was handcuffed behind his back, and whilst in the state, the said Gideon Kashawa applied electric shocks to Plaintiff’s private parts.

(h) Thereafter, Plaintiff was kicked several times with booted feet by Gideon Kashawa and several other members of the Namibian Police, whose identities are unknown to Plaintiff. Plaintiff lost his consciousness as a result.

[40] In my view, a treatment of the 2^nd plaintiff’s case should, as was with the 1^st plaintiff’s case, commence with the factual finding that the security and law enforcement personnel did not capture the 2^nd plaintiff either during the attack on Katima Mulilo or at the aftermath of the attacks when there were the aforementioned mop up operations conducted by the law enforcement and security personnel. It is crucial, therefore, in my opinion, that in determining the 2^nd plaintiff’s claims, I should, as I have done in respect of the 1^st plaintiff’s claims, make the following important observations which, in my view, are critical in assessing the weight of evidence adduced on either side of the suit, that is, concerning the 2^nd plaintiff’s claims of assaults. It is this. At the material time, as I intimated when treating the case of the 1^st plaintiff who, like the 2^nd plaintiff, gave himself up voluntarily – first into the hands of his community’s Khuta and later into the hands of the Police – the security and law enforcement personnel were engaged in mop up operations so as to completely pacify the Caprivi Region and its capital city in the aftermath of the aforementioned armed attacks. It would reasonably appear that in the face of the heat of the mop up operations the 2^nd plaintiff, one of the commanders of the attackers, weighed his options and chose to give himself up willingly and voluntarily – as aforesaid – rather than risk the uncertain outcome of remaining outside the law.

[41] That being the case I find that it stands to reason and it makes sense that the 2^nd plaintiff would think it better and prudent to cooperate with the aforementioned State agencies. A priori I find it possibly true, as some of the defence witnesses testified, that the 2^nd plaintiff gave the Police no trouble as he cooperated – willingly, I find – with them. I take it that his cooperation took the form of agreeing willingly to give them useful information and to read a statement on the NBC Silozi programme network, apparently addressed to his confederates who were still in hiding. It must be remembered that, for instance, in his 9 August 1999 statement (Exh A), the 1^st plaintiff had named names of those ‘who physically took part in the attack on Katima Mulilo on 99.08.02’, including the 2^nd plaintiff’s; and the 2^nd plaintiff was described in the statement as ‘section leader’. It must be remembered further that the law enforcement and security personnel were gathering information from other sources: it is more likely than not that they would not have been content with the 1^st plaintiff’s information only. I find it possibly true that the Police did not need to assault the 2^nd plaintiff in order for him to give names. This is a ‘section leader’ of the attackers who has been vanquished, and fearing that he might be captured by the security and law enforcement personnel has given himself up willingly and voluntarily to his community traditional Khuta first and the law enforcement and security personnel later.

[42] Accordingly, I do not find any good reason to reject the defence witnesses’ version that the 2^nd plaintiff gave himself up willingly and voluntarily and he cooperated with them willingly by giving them useful information and so they did not see why they would assault him. In this regard I reject as false the 2^nd plaintiff’s testimony, and echoed by Ms Conradie in her submission, that the 2^nd plaintiff signed his statement (Exh G) because he was forced to do so. By a parity of reasoning, I reject as false the 2^nd plaintiff’s evidence that he was forced to read out a statement over the NBC Silozi programme network. The only reason given by Ms Conradie for so saying is that ‘there were about 10-12 police officers present when the NBC came to record the broadcast and the officers were armed.’ This argument is, with the greatest deference, weak: it is not well-founded and it brims with unreasonable naivety. As counsel herself elicited in cross-examination of some Nampol personnel and as I have mentioned previously, those were perilous and unsettled times and Katima Mulilo and the Caprivi Region had not yet been pacified by the security and law enforcement personnel. For anyone to expect the law enforcement and security personnel not to be present at the place where the 2^nd plaintiff, one of the commanders of the attackers, was making a broadcast to his confederates and to expect such personnel not to carry firearms is to wish for that which on any pan of scale is not commonplace in human experience. A fortiori, there was no evidence to support the 2^nd plaintiff’s averment in his particulars of claim that he was forced to read out a statement on the radio broadcast ‘at gunpoint’. I did not hear one jot or title of testimony that someone pointed a gun at the 2^nd plaintiff.

[43] I add to all that I have said above the fact that there is no credible evidence aliuende tending to establish that it is possibly true that the 2^nd plaintiff was assaulted, as he claims. There is rather evidence aliuende showing that the defence witnesses’ evidence that the 2^nd plaintiff was not assaulted to be possibly true and that the 2^nd plaintiff’s evidence is possibly false and so must be rejected. The 2^nd plaintiff’s medical records at the Grootfontein prison sickbay do not support his evidence that he had been assaulted and that he informed the nurses who attended to him but they refused to give him medical attention. Furthermore, Chief Inspector Kanyetu was one of the Nampol personnel who saw the 2^nd plaintiff when he was bought into the Katima Mulilo Police Station. He did not notice any injuries on the 2^nd plaintiff. I accept the defence evidence – weighty evidence, in my view – counting against the 2^nd plaintiff’s evidence of assaults and resultant injuries is that given by Public Prosecutor Hendrik van Zyl. His evidence remained unchallenged by the end of the defence case. He testified that it is highly improbable that the 2^nd plaintiff was assaulted. Why does he say so? His reason is that learned magistrate Noabeb was a very ‘pro-defence’ magistrate and he would have enquired if he saw, or was told, that an accused appearing before him had injuries. And what is more; W.O. Lishoni’s evidence, which was also uncontradicted, is that he knows the 2^nd plaintiff and he recorded in the register on 27 September 1999 about the 2^nd plaintiff’s arrest, and that he was not assaulted. He saw the 2^nd plaintiff on the said 27 September 1999 and he did not notice anything wrong with the 2^nd plaintiff, except that the 2^nd plaintiff complained of a headache and he was given tablets as medication.

[44] Under this Claim, too, having applied my mind carefully not only to the merits and demerits of the evidence on both sides of the suit and to their probabilities, I accept the version put forth on behalf of the defendants as possibly true and I reject the version put forth on behalf of the 2^nd plaintiff as false. It follows that for all the aforegoing reasoning and conclusions I hold that the 2^nd plaintiff has failed to establish the claim he makes under this head. I pass to consider Claim B.

Claim B

[45] Under Claim B the 2^nd plaintiff avers:

1. From 27 September 1999, and despite Plaintiff’s said injuries, one or more of the members of the Namibian Police stationed at the Katima Mulilo police station and at Grootfontein Prison, wrongfully and unlawfully and despite a legal duty which they owed to Plaintiff, alternatively in violation of Plaintiff’s rights under Article 8 of the Namibian Constitution not to have his dignity violated and not to have subjected to torture or to cruel, inhuman or degrading treatment:

1. subjected Plaintiff to further and additional pain, suffering and discomfort by denying him medical treatment or failing to provide him with medical treatment;

2. degraded Plaintiff and violated his right to dignity and denying him medical treatment or failing to provide him with medical treatment;

3. failed to establish that Plaintiff required medical treatment;

4. failed to provide medical treatment without delay, or to take Plaintiff to a doctor and/or hospital without delay so that he could receive medical treatment there; and/or

5. failed to take proper care of Plaintiff, who was a prisoner in their custody, more particularly to provide Plaintiff with medical treatment without delay.

[46] It is important to note at the outset that Claim B is predicated upon Claim A. I have dismissed Claim A, and so Claim B cannot succeed. Thus, Claim B cannot exist without sustenance from Claim A. Accordingly, Claim B must inevitably, as Mr. Coleman submitted, suffer the same fate as Claim A. In any case, as I have found previously, when the 2^nd plaintiff complained of a headache, he was given tablets for it. There is no credible evidence that on any other occasion he did ask for medical attention and it was refused. The result is that Claim B also fails.

1^st plaintiff and 2^nd plaintiff

[47] In all this it is worth noting the following observation which has a crucial bearing on the claims made by the 1^st plaintiff and the 2^nd plaintiff and the consideration of their claims and the evidence in support thereof. It must be borne in mind that the 1^st plaintiff might be seen as a ‘collaborator’ when he told on some of his confederates in his statements to the Police. The 2^nd plaintiff, too, might be considered a ‘collaborator’ when he made a statement on the NBC Radio Silozi programme network, apparently addressed to his confederates. Is there a better way whereby the 1^st plaintiff and the 2^nd plaintiff can demonstrate to their confederates (some of whom they are sharing custody cells with) that they were forced to ‘collaborate’ with the relevant law enforcement and security agencies because they were assaulted and tortured or assaulted and so they had no choice but to ‘collaborate’ with the said agencies. I do not think there is a better way. But it has not been proved, as I have held, that they were indeed assaulted or tortured. The following further apt observation must be made. In her submission, Ms Conradie submitted, ‘Although Makendano is a co-accused (in the said treason trial), he had nothing to gain or lose by giving evidence. His claim against the defendants was settled out of Court before commencement of the trial’. That is significant. If that was done, it shows that where the defendants have seen they were wrong in their conduct towards some of the accused persons, they have been bold and honest to admit delictual liability outside the surrounds of the Court. That is not the case with the 1^st and 2^nd plaintiff; and they have failed to establish any delictual wrong doing on the part of the defendants as averred in their particulars of claim.

[48] In the result –

(a) the 1^st plaintiff’s case is dismissed with costs, such costs to include costs occasioned by the employment of one instructed counsel.

(b) the 2^nd plaintiff’s case is dismissed with costs, such costs to include costs occasioned by the employment of one instructed counsel.

_______________________

PARKER J

COUNSEL ON BEHALF OF THE PLAINTIFFS: Ms Conradie

Instructed by: Legal Assistance Centre

COUNSEL ON BEHALF OF THE DEFENDANTS: Adv. Coleman

Instructed by: Government Attorney