REPUBLIC OF NAMIBIA
CASE NO: I 2782/2005
IN THE HIGH COURT OF
NAMIBIA
In the application of:
LAVIANA NGHIMWENA
................................................................................PLAINTIFF
and
THE GOVERNMENT OF THE
REPUBLIC OF NAMIBIA ….......................DEFENDANT
CORAM: GIBSON, J
Heard on: 17 –
20 March 2008
Delivered on: 8 April
2011
JUDGMENT
The Plaintiff has brought
an action against the defendant claiming damages under two heads:
In the first part, the
Plaintiff claims that she was wrongfully and unlawfully arrested by
certain members of the Police Force whose names appear in the
judgment and she was also unlawfully detained a the instance of the
said members of the Police Force. As a result she suffered damages in
the sum of N$200 000.00.
Secondly, the Plaintiff
claims damages for unlawful assault, torture and other unlawful acts,
that she was subjected to cruel and inhuman treatment.
Consequently, she claims
damages in the sum of N$500 000.00.
The Plaintiff was the
only witness to her cases, she said she arrived at the office of Mu
Africa at about 14h30hours and found three policemen, namely Chief
Inspector Sheehama and two others. The Police told her that they
wanted her to accompany them to the Police Station to answer some
questions.
She was instructed to
drive her car with one of the Policeman as passenger. At the Police
Station she was taken to Chief Inspector Sheehama’s office
where she was shown a photograph of Jason Awene Killingi. She was
asked where Killingi was. She told the police that she only knew that
he resided in Windhoek and was not aware of any address in the north.
The Chief Inspector
became angry on that explanation. He seized her by her hair and shook
her, fondled her all over the body. Another Police Officer accused
her of lying and called her a bitch.
The Police then resumed
the questioning for a while, they stopped and left her alone in the
office.
A short while later one
of them returned, she recognized the passenger with whom she had
driven from her office, he was more gentle and placatory.
He asked her to tell him
frankly, and save herself from being locked up. She answered that she
did not have anything more to tell.
The other two Police
Officers then returned, the questioning resumed and she gave the same
negative replies. The Police then told her they were going to take
her to her husband. She was asked to drive her own car, if I may
comment now;
On this aspect the
evidence of the Plaintiff was confusing, it wasn’t clear to me
whether she drove with one policeman while Chief Inspector Sheehama
followed in another car, or whether she rode in the same car with the
Chief Inspector. The Plaintiff talked of an argument with the Chief
Inspector as they drove, as a result of which she left her seat and
sat at the back.
When they got to her home
they found her children only so they returned to her office. As they
arrived, her husband also arrived and made his way to the office.
However the police seized him and pulled him about. They then called
for further police assistance. She said her husband was dragged to a
police car and she too was put in a car.
They were driven to
Oshakati Police Station. She was not asked to get out at the Police
Station but was taken to a different Police Station where she was
interrogated until midnight. She was then handed to two women Police
Officers in camouflage dress to guard her.
The Plaintiff then said
that at 23h00 hours she heard a loud voice screaming for help. She
recognized the voice as that of her husband. Shortly afterwards
Warrant Officer Scott and Chief Inspector Sheehama arrived and
escorted her to her husband.
She said her husband was
not recognizable; he was bleeding and sat with his head on one arm
resting on the table. The other arm was dangling loosely between his
legs.
The police told her she
was to be locked up. She got worried about her children and appealed
to Warrant Officer Scott, he refused and replied in a foul language.
Her personal particulars
were taken after which she was escorted to a cell where she was
locked up. The cell was dark and smelly and cold. She was
uncomfortable as she had to sleep on the floor without blankets. She
was aware of cockroaches creeping all over her as she lay down.
The Plaintiff was adamant
about the interrogation and denied this was in her office. The
Plaintiff told the Court that she never complained about the assault
to the police before she was discharged, and she never told her
lawyer who came to collect her from the Police Station.
That ends Plaintiff’s
evidence.
The Defence called Chief
Inspector Sheehama and two police officers. Also called, was an
employee of MTC, the mobile phone company. I will deal with his
evidence later.
Chief Inspector Sheehama
was called. He told the Court that he reached Ondangwa the day before
they found Killingi’s bakkie on the 11th of January.
When they found the bakkie they surrounded a house pointed out to
them, where the bakkie was. They identified this vehicle as one which
was said to have been driven to the North by Jason Awene Killingi.
They laid siege of the house for some time and eventually they raided
it, only to find two women occupants, Warrant Officer Scott said they
slept on the spot.
However, following upon a
conversation with the women they learned that Killingi had been at
the house for two days but left that morning, that is 11th
January and was driven away in a white Condor vehicle with the
letters “Mu Africa” on the sides.
The police drove around
the town on the 11th January 2005 and made enquiries.
Eventually they found the business premises of “Mu Africa”,
sometime that day. They went in, and introduced themselves to a woman
in the shop who turned out to be the wife of Mr. Grunni, the owner
and husband of the Plaintiff, in these proceedings.
They questioned the
Plaintiff and asked for the whereabouts of her husband. She denied
any knowledge of his whereabouts. They asked her about Killingi, she
agreed she knew him but said he resided in Windhoek. Whilst
questioning the Plaintiff, the Chief Inspector received a message
that Killingi was at the Eastern Border Post with two men, that
Killingi and the other man had crossed into Botswana, but the third
man had remained in Namibia. That man was identified as Mr. Grunni,
the Plaintiff’s husband.
In addition to this
information, the police had a telephone number, a landline, that Mr.
Killingi had contacted in the course of the robbery that telephone
number belonged to the “Mu Africa” business where the
Police were.
The police requested
permission to browse through the phone log. Among the messages sent,
the police found a voice mail message to Killingi’s cellphone
number on 11 January 2005. The message was in Oshiwambo and was
translated as follows:
“When
you get to Grootfontein, change your clothes and do not leave before
I telephone you or you telephone me” Also there was a reference
to collecting the parcel.
As well as this telephone
call, calls had been made to Plaintiff’s cellphone on the day
of the robbery, in 2004.
The Chief Inspector said
in his view the message was a warning to Killingi that the police
were closing on them.
The Plaintiff having
agreed that this was her voice, the Chief Inspector said he then told
the Plaintiff that he was arresting her, Pressed in Court to explain
the grounds for the arrest, the Chief Inspector said he formed a
reasonable suspicion that the Plaintiff and her husband had been
rendering assistance to Killingi, a fugitive from justice. He told
her that she was being arrested because of the admission that she
left the message to Killing on the phone.
The Plaintiff then
suggested that they go to her home, they found only children. They
returned to “mu Africa” offices.
On the way the Plaintiff
asked to make a telephone call, she put the Chief Inspector on the
phone to her husband.
Mr. Grunni told him that
he was on his way. He arrived within a few minutes of their arrival.
The Chief Inspector said they immediately confronted him with the
news that he was seen at the Eastern Border Post with Killingi and
another man, Mr. Grunni denied initially, he became violent. Both,
became aggressive, however they were subdued and taken to Oshakati
Police Station.
On arrival the
Plaintiff’s husband was told he was under arrest. The Plaintiff
was detained.
He was referred to
Warrant Officer Nowaseb’s account. He said he couldn’t
understand why Warrant Officer Nowaseb said that Plaintiff was
questioned at the Police Station. He agreed Nowaseb was in his team
but said he didn’t know where he was most of the time. He said
that they were a large team, as many as ten at one time. So he did
not know where the officers were from time to time.
The Chief Inspector was
questioned about the message to Killingi upon which he said he formed
the suspicion to arrest the Plaintiff. He said the message was a
voicemail, sent to Killingi’s phone that it was played out loud
and the Plaintiff also listened to it. He said it was then that she
admitted that this was her voice but did not explain why she sent it.
The Chief Inspector
admitted that he made a statement in the robbery case in December
2005, a year after the events. He said that there was a mistake in
it, it was a long time and memories deteriorate. He said it was
purely a human error that he made when he talked of a text message.
Chief Inspector Sheehama
was substantially corroborated by the Investigating Officer at the
time. Warrant Officer Scott gave evidence that he remembered the
playback on the loud speaker of the Plaintiff’s phone. He knew
it was a woman’s voice and was in Oshishiwambo which he
recognized, but could not understand.
Warrant Officer Scott
said not long after listening to the message he left for Oshikuku on
further enquiries on another aspect of the robbery with some of the
officers. He said he accomplished that job and returned that same day
late in the evening about 23h00 hours, he never slept there.
He went straight to the
Oshakati Police Station, on arrival. He saw a woman in white standing
outside with a woman police officer in camouflage dress. The woman
was crying but he did not pay any attention.
On entry into the police
station, he went into an office where the Plaintiff’s husband
was, Mr. Grunni was sitted on a chair handcuffed behind his back, he
was still under interrogation.
After midnight the Chief
Inspector asked him to detain both the Plaintiff and her husband,
which he did.
As to the dates, Warrant
Officer Scott said he couldn’t remember the exact date but said
he arrived in the North on a Sunday afternoon. The date was given
subsequently as the 9th of January 2006.
They made enquiries and
got information from and informant. He said the Chief Inspector
arrived after them. Warrant Officer Schott said they visited the
house where Killingi’s bakkie was parked, he gave evidence as
on record.
As for the arrest,
Warrant Officer Scott said he did not know the merits. He merely
carried out the instructions from the Chief Inspector who gave the
order to lock up the Plaintiff and her husband.
He said there were many
police officers including Warrant Officer Lazarus Nowaseb, the
witness ideal with next.
Nowaseb’s evidence
was that the Windhoek team travelled North on the 9th of
January 2006, not the 11th. He said however that the
Plaintiff was seen later, on the 12th, but denied that any
interview took place at her offices. He said the Plaintiff was
interrogated at the Police Station, there was no playback of the
phones in her office.
Warrant Officer Nowaseb
also related that after the visit to the house where Killingi’s
truck was parked, the team went to Oshikuku on further enquiries and
spent the night. That is the end of the evidence.
The Plaintiff evidence
was not at all convincing. It is unlikely that the police team who
had been led to the North and had relied on the telephone messages
and cellphone messages to pin point the movements of Killing’s,
would have hastily removed themselves from the first human link to
the phone calls, and from the place of operation and guidance to the
fugitive without nosing around the premises, because the police had
no warrant authorizing the search of the Mu Africa premises. Further,
the premises and occupant had not been of interest to the police when
they came North.
Thus the presence of the
plaintiff was a heaven sent opportunity for gathering any information
to help their inquiries on the role of “Mu Africa’s”
owner.
Also, money had been
taken to the north and Mu Africa personnel had been among those
called from the scene of robbery.
Though the Plaintiff’s
version appears supported by Warrant Officer Nowaseb, I do not give
much credence to it. Warrant Officer Nowaseb seems to have been out
on the periphery concerning the events and developments in the North.
His references to calling on the Ondangwa house, then proceeding to
Mu Africa premises and to Oshikuku the same afternoon, on the Sunday,
appears highly improbable. The police needed to make further
inquiries once they reached Ondangwa and to ascertain the whereabouts
of their suspect, Killingi. He was never suggested that Killingi had
gone to Oshikuku.
Warrant Officer Scott’s
version that the Police team laid siege round the house where
Killingi’s car was for some time, the day before the arrest,
and slept there is more in accord with reality and common sense.
After all, Chief
Inspector Sheehama who was heading the investigation was not in the
advance team, he only arrived a day before the call on the Plaintiff.
As he would have to approve any move, the team could not have done
more than watch Killingi’s truck, in case he had returned. On
abandoning the search in the early hours of the 11th, the
police would then have made inquiries about Mu Africa.
The other aspect of the
Plaintiff’s evidence which made no sense to me was her account
of her removal from her premises to the Police Station. Her claim
that she was asked to drive her car to the Police is improbable and
unlikely. The part of her version is totally confused, as is further
shown by her account regarding the call on her home after some
interrogation.
The question who drove
what car, and how many cars were there, and whether she was allowed
to drive herself, presumably after the assault, is not plausible.
The inconsistency is not
material, save that it shows the unreliable nature of her account and
the sequence of events. Rather I accept Chief Inspector Sheehama
version that the visit to her house was made from her office after
she was questioned and threatened that they would take her to Police
Station for further questioning.
By then the Plaintiff
would have realized the grave situation she was in, hence the need to
telephone her husband, who came within minutes. Clearly he had been
in hiding with her knowledge and was ready to come forward and face
the music when he realized that the Police were not going to go away
without him or his wife.
Chief Inspector’s
account of finding of the voice message to Killingi’s
cellphone, changed the police’s brief and put the plaintiff
right in their investigation.
Warrant Officer Scott
confirms the playback on the landline speaker. He, as the
investigator would have been right in the midst of the enquiry. His
departure immediately for Oshikuku was made with the assurance and
knowledge that part of the inquiry had been concluded satisfactorily.
Warrant Officer Scott’s account is coherent and logical, and is
in line with the probabilities.
The final aspect of the
Plaintiff’s version which makes her claim of assault whimsical
is the account of where she and her husband were taken to from “Mu
Africa” premises.
The Plaintiff’s
evidence that she was taken to a different Police Station after
dropping her husband at Oshakati Police Station is difficult to
accept as reliable because Plaintiff says that in the course of
interrogation which finished at midnight, she was able to hear the
cries of her husband during his own interrogation, at about 11pm.
Clearly the two would not
have been held at different Police Station if she was able to hear
her husband. In any even overwhelming evidence shows that she was
left in the care of two female police officers in camouflage uniform
outside the Police Station, as seen by Warrant Officer Scott.
The final witness for the
Defence, Mr. Mark Praaght, an employee of MTC was largely
unchallenged. He gave mainly technical evidence explaining how
cellphones work, how calls could be used to trek down the person
answering a call. He gave evidence of the calls made to or from
Killingi’s cellphone, for instance on the 11th
January 2005, and even before that, in 2004, at the time of the
robbery.
He also confirmed that
Killingi’s phone was used to call Mu Africa on the day of the
robbery, as well as when Killingi was on the run at Ondangwa.
The question is whether
the Chief Inspector Sheehama had a reasonable suspicion to arrest the
Plaintiff?
Section 40(1)(b) of the
Criminal Procedure Act 51 of 77 provides that:
“A
peace officer may without warrant arrest any person ...
(l) A peace officer may
without warrant arrest any person -
(a) who commits or
attempts to commit any offence in his presence;
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from lawful custody;
“Suspicion”
has been held to mean a state of conjecture or surmise where there is
no proof, such suspicion is present at the beginning of an
investigation intended to procure evidence of a prima facie case;
Duncan v Minister of Law
and Order 1986 2SA 805 at 814E.
In regard to the
requirement that the suspiction be reasonable, in Mabona and another
v Minister of Defence and other, 1982 SSA 654(SE) at 658 F-H, the
Judge held that: “In evaluating his information a reasonable
man would bear in mind that the section authorizes a drastic police
action. It authorizes an arrest on the strength of suspicion without
the need to swear out a warrant, that is something which otherwise
would be an invasion of private rights and personal liberty. The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically and he will not accept it
lightly. But this is not to say that the information at his disposal
must be of sufficient quality and cogency to engender in him a
conviction that the suspect is in fact guilty. The section requires
that the suspicion must be based upon solid ground:”
It is clear from the
above that the test for whether or not the suspicion is reasonable is
not subjective; it is not whether the police officer believes that he
has a good reason to suspect, rather, that the suspicion, when look
at objectively, one can say that the police officer as a reasonable
man has reasonable grounds for harbouring such suspicion: Watson v
Commission of Customs and Exice 19603SA2212(N), at 216. This decision
was followed in the Dunvan case, above.
In the present case the
Police Officer had come to Ondangwa in pursuit of a suspect, Killingi
who was alleged to have been involved in a serious crime of robbery
in which N$5 700.00 was stolen.
On calling at the house
where Killingi had been hours before they found two women who gave
them information which they followed and located the business
premises of Mu Africa. At the premises, they found a woman, the
Plaintiff, wife of the owner of the business, she however, was not
forthcoming with information concerning her husband.
Further, upon
investigations, the police found that the Plaintiff had been in
communication with her husband and Killingi by phone giving certain
information which, as it turned out was vital to the escaped fugitive
eluding pursuers.
In my view those factors,
were grounds enough upon which a reasonable man might have suspected
that a crime had been committed.
Thus I am of opinion that
the arrest was justified in law.
The fact that Plaintiff
was released after detention does not detract from the initial
finding. A police officer may arrest a suspect with intention of
conducting further enquiries and depending on the results may release
or charge the suspect: Duncan vs Minister of Law and Order 1986
2SA505 at 819-820.
The next question is
whether the Plaintiff’s objection to the admissibility of
Killingi’s record of calls on his cellphone made available to
the Police by MTC, the mobile phone company which helped to locate
the movements of Killingi, is sustainable in Law given the fact that
the Police did not have a Court Order to do so.
Every citizen has a
fundamental right to privacy of communications, inter alia, by virtue
of the Namibian Constitution.
The breach of a
Constitutional right, however does not invariably lead to the
exclusion of the evidence illegally obtained, particularly so in
civil proceedings.
Furthermore it is trite
that the effect of such breach can be of varying degrees, the
decision would depend on whether it was deliberate or inadvertent, or
cruel and violent. This is a principle that emerges from a number of
Court precedents in South Africa.
Clearly the Court has
discretion whether or not to allow the use of such evidence: S V 2001
SACR 572C v Madiba 1998 1BCLR 38 (D).
In SV Mkhize 19992SACR
632, the Judge affirmed the view that there is a discretion, and
said,
“The
Constitution envisages precisely that there will be a circumstance
when evidence will be admissible even if the obtaining of the same
entailed the violation of a right enshrined in the Constitution (Bill
of rights) 35 (5) of the South African Constitutions.
The principle in our
Courts and under The Namibian Constitution is that the right to
privacy is fundamentally enshrined.
Section 13, (1) provides:
“No
person shall
be
subject
to interference with in the privacy of their homes, correspondence or
communications save as in accordance with law and as in necessary in
a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the protection
of health or morals, for the prevention of disorder or crime or for
the protection of the rights or freedoms of others”.
This Article, by its
saving clause clearly permits the deviation from the fundamental
right of privacy, inter alia, for the prevention of disorder and
crime.
“It
would be a matter for the Courts to determine whether a matter falls
within or without the saving clause. The Court, in coming to its
decision, in exercise of its discretion will no doubt be guided by
the principle of fairness to ensure Justice to both sides.
In the instance case, the
Police were in pursuit of an elusive and mobile suspect allegedly
involved in a grave criminal matter in which a lot of money was
taken. Given that the suspect might still be in possession of some of
the money, the need to intercept him became of great urgency. Granted
the publicity that the case enjoyed at the time, it was necessary for
the Police to get Killingi before some brave person and member of the
public got in his way, with resultant injury to the suspect or member
of the public. Embarking on a Court of application for an order,
would have costs and lost a lot of valuable time.
In the result I hold that
the Police were justified in employing the latest technology to
locate and apprehend the suspect as soon as possible. Therefore
breach of Killingi’s rights to privacy pales into
insignificance as against the goal of achieving justice. A Court must
be wary lest it be seen to be too quick to tip the scales of justice
in favour of a litigant alleged to have deliberately trampled on the
rights of others;
S V Ngcobo 1998 10 BCLR
1248 (N)
In conclusion, I hold
that the Plaintiff has failed to prove her case. There was no
unlawful arrest or unlawful detention.
The Plaintiff also sought
damages for assault and torture; I find no merit in this claim. The
assault even if viewed from the Plaintiff’s side was not
plausible, there was no mark or signs either physically or mentally
on her. Thus, at the time the Plaintiff was released the following
day, she went straight to work rather than to her home to recuperate,
or receive medical attention.
In an event, the evidence
of such assault if any was not that convincing. If the Plaintiff had
been dragged by her hair as she claimed signs of bruises or forceful
removal of hair should have been seen. Further, the Plaintiff did not
even tell her lawyer about it on being released, or soon after. It
was only when she lodged the complaint for unlawful arrest and
detention that she raised it.
Thus i find not merit in
the claim for assault.
Both claims for damages
are therefore dismissed.
In light of his
conclusion, I will not go into the matter of quantum.
The Defendant will be
entitled to their costs.
IT IS ORDERED
ACCORDINGLY.
___________________
GIBSON, J
ON BEHALF OF THE
PLAINTIFF: Sisa Namandje & Co
13 Pasteur Street
Windhoek West
ON BEHALF OF THE
DEFENDANTS: Mr. Asino
Instructed By:
Government- Attorney
Sanlam
Building
Nghimwena v Government of the Republic of Namibia (I 2782/2005) [2011] NAHC 105 (08 April 2011);