REPUBLIC
OF NAMIBIA

CASE NO. I
1347/2001

574/2008

575/2008

IN
THE HIGH COURT OF NAMIBIA

MAIN
DIVISION

In
the matter between:

JOHN
MPANSE LUBILO …..................................1ST
PLAINTIFF

JOHN
GENESE KABOTANA …................................2ND
PLAINTIFF

ENERST
LIFASI LOLISA …................................3Rd
PLAINTIFF

and

MINISTER
OF SAFETY & SECURITY …...........................DEFENDANT

CORAM:
DAMASEB, JP

Heard:
2 - 12 November 2009

Delivered:
8 June 2012

________________________________________________________________

JUDGMENT

DAMASEB, JP:
[1] The three cases before me were consolidated by agreement and
by order of this court. In each case, the defendant is the Minister
of Safety & Security, being sued in his official capacity as the
Minister responsible for the Namibian Police (Nampol). It is alleged
that members of Nampol, acting within the scope and course of their
employment, wrongfully and unlawfully arrested the plaintiffs;
assaulted them, or unlawfully detained them in violation of their
right to be brought before Court within 48 hours of arrest.

[2] The plaintiffs
form part of a group arrested in the wake of a failed attempt to
secede a part of Namibia’s territory, the Caprivi region, in
the latter half of 1999. Their guilt or innocence is at the moment
the subject of the longest criminal trial ever to take place in this
country. The plaintiffs – alleged traitors – have been
behind bars since their arrests. The incidents which led to their
arrests were violent: people died or were injured. The security arms
of our State were apparently caught off-guard. Some of the murderous
attacks happened at a police station – the very place the
plaintiffs subsequently ended up being incarcerated after their
arrests. Understandably, emotions are not detached from the case.

[3]
In regard to the criminal trial, the presumption of innocence
operates in favour of the plaintiffs. On the other hand, the empathy
that comes naturally for a person who has endured a long period of
incarceration without their case being finalised is no substitute for
what is expected of them as plaintiffs in a civil trial: They bear
the evidentiary onus to
establish a prima facie case for their claims. They are, however,
limited in that endeavour by the fact of incarceration. Conversely,
the defendant bears no onus to disprove the allegations against it
unless there is prima
facie evidence of
liability. The fact that the implicated members of the force acted
against the plaintiffs in the wake of the events I mentioned, is
presumed by the law to be wrongful. That does not, in and of itself,
turn the police into villains. The police invoking the procedures of
the law to have the allegations against the plaintiffs determined in
a criminal court, is a power enjoyed by the State under the law in a
democratic state. However, that power is no warrant or license for
violating the plaintiffs' constitutional rights to bodily integrity
and freedom from arbitrary arrest and detention.¹
The latter is what this case is
about.

[4] I make these
remarks at the outset because either side, to a greater or lesser
extent, relies on the atmosphere associated with the secession events
to advance a theory of the case and to suggest a particular approach
to the evidence based on that.

The claims in
brief

[5] The plaintiffs
come to this court saying they suffered physical assaults and other
breaches of their constitutional rights such as to be brought to
court within 48 hours of their arrest or being arrested without being
told the reason for the arrests. They seek compensation.

THE LAW

Unlawful arrest

[6]
An arrest or detention must be constitutionally and statutorily
justified.²
Wrongful arrest consists in the
wrongful deprivation of a person’s liberty. An arrest or
detention is prima facie wrongful and the defendant must allege and
prove the lawfulness of the arrest or detention.³
An arrest without a warrant is
lawful if at the time of arrest the arresting officer had reasonable
belief that the plaintiff had committed a Schedule 1 offence. (which
includes treason and murder) The defendant should show not only that
the arresting officer suspected plaintiff of having committed an
offence, but that he
reasonably suspected him of having committed a Schedule 1 offence.⁴
The plaintiff is not required to
allege and prove on the defendant’s part the intention to
injure or awareness of unlawfulness (animus
iniuriandi). An honest
belief in the legality of the arrest does not constitute a defence⁵.
Article 11 of the Constitution enjoins that upon arrest a person
being arrested must be informed of the reason for the arrest in the
language that he or she understands.⁶
Once arrested, he or she must be
brought before court within 48 hours or soon thereafter as is
reasonable.

[7]
Article 11(2) of the Constitution states that “no persons who
are arrested shall be detained in custody without being informed
promptly in a language they understand of the grounds for such
arrest.” In the South African case of Naidenov
v Minister of Home Affairs and others⁷,
interpreting a similar provision as our own, Spoelstra J held that
the provision did not require that the arrestee should be informed in
his native language, but merely that he be informed in a language
which he understands.

Unlawful
detention

[8]
Article 11(3) of the Constitution and s.50 of the Criminal Procedure
Act (CPA),⁸
deal with detention after arrest.
The effect of these provisions was discussed by Hannah AJ (as he then
was) when he stated the following in S
v Mbahapa⁹:

“The
terms of art 11(3) are to my mind quite clear. The article provides
in plain terms that an arrested person must be brought before a
magistrate within 48 hours of his arrest or released. It is only if
it is not reasonably possible to bring an arrested person before a
magistrate within the 48- hour period that further detention in
custody is permitted and even then the detained person must be taken
before a magistrate ‘as soon as possible’. In the context
of art 13(3) the words ‘as soon as possible’ require
little interpretation or explanation. There must, of course, be an
element of reasonableness implied but once the circumstances are such
that it is reasonably possible to take the arrested person before a
magistrate that must be done. If it is not then the arrested person
is deprived of his fundamental right to freedom as guaranteed by the
Constitution. As I have indicated, what is possible or reasonably
must be judged in the light of all the prevailing circumstances in
any particular case. Account must be taken of such factors as the
availability of a magistrate, police manpower, transport, distances
and so on. But convenience is certainly not one such factor.”

Assault

[9]
The cause of action is the action iniuriarum. An assault violates a
person’s bodily integrity.¹⁰
Every infringement of the bodily
integrity of another is prima facie unlawful. Once infringement is
proved, the onus moves
to the wrongdoer to prove some ground of justification.¹¹
But before that duty arises, the
plaintiff must allege and prove the fact of physical interference.¹²

General comment

[10] In applying the
law stated above to the facts before me, I will take the following
approach in analyzing the evidence that was led before me.

Assault
allegations

(a) Is there
evidence of assault on the plaintiffs?

(b) If assault is
established, how is it justified?

(c) It must follow
that in circumstances where assault is denied on the pleadings and I
find there was assault, it was wrongful in the absence of
justification.

Unlawful
arrest

(a) Was there a
failure to inform the arrestee of the reason for the arrest?

(b) If it was, is it
sufficient that the reason was apparent from the surrounding
circumstances?

Unlawful
detention

(a) It being common
cause that the second plaintiff Kabotana was not brought to court
within 48 hours of arrest;

(b) Was it possible
for the police to have complied with the requirement of the law?

(c) Is the reason
the plaintiff was not brought to court within 48 hours after arrest
because it was not reasonably possible to do so; and assuming that to
be the case, was he brought to court as soon as possible?

Common cause
facts

[11] The following
is common cause between the parties:

(a) The arrests
which are the subject of the present proceedings were preceded by
violent attacks which took place in the Caprivi region during August
1999. Those attacks were perpetrated by a group of people who wanted
to secede the Caprivi from the rest of Namibia. That amounts to
treason. People were killed by the armed men who perpetrated the
attacks.

(b) The plaintiffs
have been in custody since August and September 1999 on suspicion of
having been involved in the violent attacks against the State of
Namibia and people.

(c) Except for one
person (Zekia Oliver Kabotana) who is the biological brother of the
second plaintiff, all of the witness for the plaintiffs are
co-accused in the treason trial and all have pending civil claims
against the Government for the same delicts the present plaintiffs
are pursuing through these actions. They all rely on each other as
witnesses in their respective claims.

THE CLAIMS OF THE
PLAINTIFFS

First
plaintiff: John Mpanse Lubilo

[12] This
plaintiff’s cause of action is for unlawful arrest, and
assault.

Second
plaintiff: John Genese Kabotana

This plaintiff
claims for unlawful arrest, unlawful detention and assault.

Third
plaintiff: Ernest Lifasi Lolisa

This plaintiff
claims for unlawful arrest and assault.

EACH PLAINTIFF’S
CASE CONSIDERED

First plaintiff:

Unlawful arrest

[13] The original
particulars of claim in respect of his claim filed in July 2000
alleged the following: that first plaintiff was arrested on 30 August
1999 by a sergeant Simasiku. He was then detained unlawfully until 31
August 1999, the date on which he appeared brought before a
magistrate. His further detention was authorised by a magistrate on
that date.

Assault

[14] As for the
alleged assault, the particulars alleged that the first plaintiff was
allegedly assaulted by six Nampol officers, one of whom was Oupa on
30 August 1999 at Katima Mulilo(‘KM’). During this
assault he alleged he was beaten with rifle butts. Again, on 30
August, he was allegedly taken to the Zambezi River where he was
tortured by six Nampol members and Oupa. The assaults resulted in him
suffering an injury to his right-hand finger and multiple bruises
over the body. He was treated for these injuries at Grootfontein from
10 September 1999 until July 2000. He also endured shock, pain and
such like.

The evidence led
at the trial in support of the assault allegation of Lubilo

[15] The first
plaintiff testified that he was born in 1952, and hails from Lusave
village in the Caprivi. He attended school only up to Grade 2. He can
write his name but can’t write English. The bit of English he
knows he picked up in prison. He testified that he was arrested at
about noon on 30 August, 1999 while he was at home. He testified that
he was arrested by a Simasiku, ‘Oupa’ and another officer
he said was Ovambo-speaking. He testified that he was in his
courtyard when he saw 4 cars approach. The police officers jumped off
and surrounded him. Simasiku told him that he was under arrest and
asked him to board. He was blindfolded, assaulted and thrown onto the
car. Simasiku did not tell him why he was being arrested and he said
he also did not ask why he was being arrested. He testified that the
police behaved like wild dogs in the process of arresting him. During
the assault, he said, he was blindfolded, punched with fists, kicked
in the face and on the chest and thrown onto a pick-up vehicle. He
was bleeding in the mouth. When thrust onto the vehicle, he fell on
people who were already arrested. He was taken to Ngwezi police
station at KM. There he, with others, was off-loaded and had the
blind folds removed. He recognized other arrestees: Josef Kaviana and
Richard Mungulike. He had no communication with the fellow arrestees.
At Ngwezi police station he was taken into an office and asked by
Simasiku if he was a rebel. When he enquired what that meant, he
testified, the Ovambo officer, Oupa, started assaulting him. Simasiku
allegedly then told him that if he did not admit to being a rebel, he
would be killed.

[16] Lubilo further
testified that the assaults went on for a long time and consisted in
him being kicked and being hit with rifle butts in the ribs. He
stated that he sustained scratches to the head, stomach and legs.
After being assaulted, he was taken to a cell and remained locked up
until 31st August 1999. According to him, nothing happened on the
night of the 30th, but early morning of the 31st he was again taken
to an office and assaulted and told to confess to being a rebel. He
refused to confess and was then taken to the Zambezi River by
Simasiku, Oupa and others he did not know. At the river Zambezi, he
testified, Simasiku ordered him to sit on a bag filled with stones.
He was told that if he did not confess he would be tied to that bag
with stones and thrown in the river to drown. He testified that he
had no choice but to agree to sign a confession, whereupon he was
placed in a sack and returned to the police station. At the police
station, he was told that if he did not sign the confession he would
be killed. He told the interrogators to bring the papers. Simasiku
then brought some papers which he signed. He testified that the
statement that he signed was never read-back to him and that he
signed it to save his life. The assaults stopped after he signed the
confession. The witness testified that he sustained the following
injuries as a result of the assaults: a cut to the head, the stomach
and the left foot. He said that his left rib cage is paining to this
day. He testified that he experienced pain from the injuries from
August to November 1999. While detained at Katima Mulilo he did not
receive medical treatment and was denied food. He was only given food
on 6^th November 1999 when he was taken to Grootfontein. He
received medical attention in Grootfontein for the first time in
October 1999. Although he had asked for medical treatment at
Grootfontein before that, it was refused him. The witness testified
that whilst detained at Grootfontein no one asked him about the
injuries and he was afraid to tell the police of his injuries as he
thought he would be killed if he did so and that Simasiku had in fact
threatened to kill him if he told anyone, including the Court, about
the injuries. He testified that he only received treatment in October
when an official came from the military base. He also testified that
the people who treated him did not speak his language and that he did
not understand them. He showed them his injuries using sign language.
The witness testified that he had informed fellow inmates at KM about
his injuries.

[17] Lubilo also
testified that he had informed his fellow inmates while being held in
Katima Mulilo about his injuries. As regards the claim that he was
not brought before Court within 48 hours, Lubilo testified that when
he was taken to Court, a magistrate was not present but that the case
was postponed to 24 January 2000 by Simasiku.

[18] In
cross-examination Lubilo testified that the criminal trial now
underway relates to a series of attacks that took place in the
Caprivi in August 1999 and that he was told as much by an officer he
called ‘Ovambo Oupa’ and that Simasiku acted as an
interpreter for him. He denied that he participated in the attack at
the Vinella border post, claiming that he was at his village far away
from the border post. He stated that he heard about the attacks on
the radio. He further stated that he was aware before his arrest that
the police were looking for the perpetrators of the attacks.

[19] In support of
the wrongful arrest Lubilo stated that the police did not identify
themselves upon arresting him and that he was not told what he was
being arrested for. He could not say who arrested him but stated that
the officer who spoke to him was Simasiku. He accepted that during
his arrest, in addition to Simasiku and 'Oupa', there was a white
officer called Karstens, a fact he did not mention in his particulars
or in chief. He stated that the police who arrested him were in
uniform and were armed and that he knew they were the police. Lubilo
denied that officer Karstens identified himself as a police officer
and informed him of the reason for the arrest and that same was
interpreted to him by Simasiku. Lubilo could not dispute that the
police were led to him by a collaborator and that they had a
reasonable suspicion he was involved in the attacks. He denied that
upon being confronted by the police about the wound he had that he
admitted he sustained it in the Vinella border post attack.

[20] Asked when he
became aware for the first time about the reason for the arrest,
Lubilo testified that it was at the police station when 'the Ovambo'
called him a rebel and accused him of participating in the attack;
and that it was on the same day that he was arrested. He testified
that he was taken to the Magistrate's Court on 31 August 1999 and
that Simasiku, not a magistrate, told him that the case was
postponed. This contradicts his particulars of claim which quite
accurately set out the true position. He maintained that in his
instructions to his present practitioners of record he had informed
them that he had not been brought before a magistrate. It was put to
him that his original particulars of claim state that he appeared
before a magistrate on the 31st. He testified that he stood by the
version now given in Court and persists that he never appeared before
a magistrate, and that it was Simasiku, not a magistrate, who
postponed the case.

[21] Lubilo was
adamant that he had not before 24 January 2000 appeared before a
magistrate at Grootfontein, implying that any evidence that he indeed
so appeared after his arrest, was a fabrication. He claimed that he
was unlawfully detained from arrest to 24 January 2000. Lubilo
disputed the truth of the warrant of further detention and removal
and stated he had not seen the document before. Lubilo also dismissed
as untrue the version, as shown in the Grootfontein admission
register of 5 September 1999, that he was referred by a magistrate at
KM.

[22] This version is
against the weight of the evidence and demonstrates that this is a
man who is prepared to lie about a detail that in a verifiable way
proves the opposite. It raises the question if he can be believed on
matters that cannot be independently verified. In what clearly
demonstrates the emotions involved in the case, Lubilo stated that
everyone, including Simasiku and Mr Coleman acting as counsel for the
defendant, are Ovambos because they are working for the government of
Sam Nujoma.

[23] For the first
time in cross-examination, Lubilo stated that in addition to Oupa and
Simasiku, officer Karstens participated in the assault on him and
that Karstens (a white officer) was the one who inflicted the wound
to his head. His implausible explanation to the question why, if he
referred to Oupa as a Wambo, he did not previously name Karsten by
reference to his race, was that he only came to hear Karstens' name
in Court. He also for the first time in cross-examination mentioned
the assaults on him at Kahende village. It was put to him that the
alleged assaults at the Kahende village are not mentioned in his
particulars of claim and he maintained that he had informed his
practitioners of record about those assaults too. As for the
suggestion made in cross-examination that he was assaulted on the
head upon arrest with a pistol, it was put to Lubilo that same is not
mentioned in the particulars of claim. Lubilo conceded he did not
mention it to his practitioners of record but asserted that it was
the pistol -assault to the head that caused the bleeding. He
described this injury arising from this assault as 'serious' and
covered his face, stomach and feet with blood. He added that the
wound caused by the pistol-attack bled a lot. He added for good
measure, that not only was his shirt still covered in blood when he
was brought to the KM hospital, but that he had informed his
practitioners of record that the most serious injuries he sustained
in the assaults, were the ones to his head and to the left foot. He
was emphatic that he had not sustained any injuries to his throat.
When challenged in cross-examination that his complaint of 7
September had not mentioned any of the injuries now referred to in
Court, Lubilo retorted that he did not mention them then as he was
'still afraid of being killed’, if he did.

First Plaintiff’s
witnesses

[24] Mr Richard
Mungulike, who is Lubilo's co-accused in the treason trial, testified
on Lubilo's behalf. The two were acquaintances before their arrests.
Mungulike was arrested on 30 August 1999 and saw Lubilo at the Katima
Mulilo charge office of Nampol. He also has a pending civil suit
against the government arising from his arrest. According to this
witness, when he saw Lubilo at KM charge office, Lubilo had blood on
his head and his mouth was swollen. The two of them were, he said,
again in the same cell on 31 August when Mungulike had just been
assaulted too and Lubilo 'looked tired' and appeared like he had been
assaulted.

[25] In
cross-examination Mungulike stated that he, Lubilo and others were
taken to the Magistrate's Court on 31 August 1999 but that he was at
the time in a state of shock as to be unable to tell how Lubilo
looked like. He was however able to see that Lubilo's clothes were
covered in blood. Mungulike accepted in cross-examination that he and
Lubilo do meet and talk regularly in prison since their arrest in
1999.

[26] The second
witness for Lubilo was Josef Kabyana, a co-accused in the Caprivi
treason trial; also with a pending civil claim against the State.
Kabyana too was arrested on 30 August 1999 and is related to Lubilo.
He testified that he saw Lubilo on 31 August after the arrest at the
KM police station. Kabyana testified that Lubilo then had fresh
injuries to his head, stomach and left foot. He testified that the
injury to the head looked as if it had been caused by a knife or an
axe. The injury to the foot looked like a burn, he added. When asked
in cross-examination if Lubilo would be a witness on his behalf in
his pending claim against the State, Kabiana was very evasive but
left open the possibility that it would be the case. Kabana’s
version of Simasiku’s role at the Magistrate's Court and what
happened or did not happened there is not the same as that of Lubilo.

Case for Second
Plaintiff

Kabotana

Unlawful arrest

[27] The original
particulars of claim relative to this plaintiff were also filed in
July 2000. Therein he had alleged that he was unlawfully arrested on
1 September by an officer he knew only as ‘Popyanawa’.
Before trial, on 19 October 2009, the second plaintiff amended his
particulars of claim in respect of the unlawful arrest allegation and
alleged that the unlawful arrest was effected, in addition to
Popyanawa, by Simasiku, Chisavulio, Oupa and Karstens.

Unlawful
detention

[28]The particulars
alleged that after his arrest on 1 September 1999, the second
plaintiff was detained unlawfully until 6 September 1999, the date on
which he was brought before a magistrate at Grootfontein.

Assault

[29] The particulars
alleged that the second plaintiff, upon arrest, was assaulted on 1
and 2 September 1999, by Oupa and Simasiku with a baton, kicks and
punches. The assaults resulted in a laceration on his chest and above
his left eye as well as multiple bruises all over his body. He
received treatment for the injuries whilst in Grootfontein prison,
from 6 September 1999 until about 12 September the same year.

EVIDENCE IN
SUPPORT OF SECOND PLAINTIFF’S CLAIMS

[30] The second
plaintiff (John Kabotana Genese) testified that he, like the first
plaintiff, hails from Kahende in Sivuyu village of the Caprivi
Region. He was arrested on 1 September 1999 between 10-11 in the
morning whilst at home. Kabotana testified that he was at a borehole
with his brother and others when several police officers swooped on
them. A police officer asked him for his name and led them back to
their village and upon their arrival at the village; he was asked
about the whereabouts of a Sambona, accused of being a rebel and was
then assaulted. The assault was with fists and rifle butts. He was
blind-folded, had his shirt removed and then thrown onto the loading
box of a pick-up vehicle. He was neither told of the reason why has
was being beaten nor for the arrest. He testified that the officers
involved were Simasiku, Mbinge and a lot of Ovambo speaking officers.
Whilst being conveyed in the vehicle, he testified, the officers
stepped on his back and dropped cigarette ash on him. He was taken to
the Ngwezi police station, assaulted there at night and denied
medical attention although in need of it. He identified the officers
who removed him from the cells at night as Simasiku, Oupa, Karsten
and an 'Ovambo'. The assaults were perpetrated, he said, with
buttons, firearm butts and being thrown against the wall.

[31] He testified
that he was assaulted on the day of arrest, the 2nd, 3rd and 4th of
September, denied food for 4 days and was made to sign a confession
against his will on 3 September. Kabotana testified the he appeared
at the Magistrate's Court on 6 September 1999 and that no effort was
made to take him to the Magistrate's Court at KM before that.
Kabotana testified that as a result of the assaults following his
unlawful arrest, he sustained a cut to the right side of his chest.
The injury sustained caused him pain for a long time and he only
received medical treatment after 2 weeks following his arrest –
when he was given panado tablets at Grootfontein prison for the pain.

[32] In
cross-examination, Kabotana accepted that he could not deny that
Mungulike pointed him out as a rebel. He was aware of the
secessionist attacks from the wireless. He persisted that the police
never told him of the reason for his arrest and that he became only
aware on 6 September 1999 that he had been arrested. He said that
when the police swooped on them they were in police uniform and that
he was aware that they are police officers. He said he was accused of
being a rebel while he was being arrested. The officers that arrested
him were Chisavulio (since deceased) Mbinge, Simasiku, Oupa and
Karstens.

[33] This plaintiff
denied under cross-examination that he was informed by officer
Chisavulio of the reason for the arrest at the time he was arrested.
He also denied that he was brought to court within 48 hours on 3
September or within a reasonable time. He denied giving a warning
statement on Friday 3 September 1999 intended to bring him before a
magistrate. He vehemently denied signing his purported warning
statement of 3 September 1999.

[34] In support of
the claim based on the assault, this plaintiff stated that upon
arrest at his home, he was assaulted by Simasiku, Mbinge and an
‘Ovambo’ Oupa. He stated that officer Karstens was not
present at the village. During the assault at his home in the
village, this plaintiff testified that he was assaulted with a
batton, resulting in swelling to his body and that he had a
laceration above his left eye when he was brought to the police
station. He stated that he was not bleeding. He was again assaulted
at the police station at night. After the assault on the 4th of
September he was bleeding on the left eye.

[35] This plaintiff
was emphatic (contrary to what is alleged in his particulars of
claim) that he was always assaulted at night and that the assaults
also happened on the 3rd and 4th September 1999. It was put to him
that all that conflicted with his version in the pleadings, which he
attributed to a possible misunderstanding with his practitioners of
record. It was also put to the witness in cross-examination that his
prison file showed that he received medical treatment. He said all
that it could refer to was the panado tablets he received. It was
also put to him that the file showed that he only complained of
diarrhea on 15 October 1999. He was emphatic that when he arrived at
Grootfontein he had an open wound above the eye (which was swollen)
and another wound to the chest. He stated that any suggestion that
upon arrival at Grootfontein the prison officials examined him and
did not find the injuries he claims to have had, is a fabrication
both by the police and the prison authorities.

[36] Three witnesses
testified on behalf of the second plaintiff. The first was one Zekia
Oliver Kabotana, a brother of the second plaintiff. This witness is
not an accused in the treason trial. He confirmed that he was present
at the borehole when the second plaintiff was arrested. When they
returned to the village with the police, the second plaintiff, whom
the police were looking for when they arrived at the village, was
taken into his hut. He later heard the plaintiff scream and concluded
he was being assaulted. He testified that when the second plaintiff
emerged he looked different and seemed to be in pain. According to
this witness, upon entering second plaintiff’s hut after the
police had taken him away, he noticed that things were scattered and
that a plastic chair had been broken.

[37] In
cross-examination he conceded that he never actually saw Kabotana
being assaulted.

[38] The second
witness on behalf of Kabotana was Josef Mufuhi, also accused of
treason and has a pending claim against the defendant. He testified
that he was arrested on 1 September 1999 and saw Kabotana at the KM
police station in the evening of 1 September. He did not notice any
injury on Kabotana. Kabotana was then removed from the cell by the
police the next day and upon being returned he had an injury to the
right side of his chest and an injury on the eye.

[39] In
cross-examination Mufuhi testified that when he first met Kabotana at
the police station, he looked as if he had been assaulted although he
had no visible injuries. The witness testified that he only saw the
injuries on Kabotana on 3 September – being a cut on the
forehead and that it was bleeding.

[40] The version
that he had no see any injury on Kabotana is at odds with Kabotana’s
own version that at that point of arrest he was assaulted and had
swelling to his body and a laceration above his left eye when he was
brought at the police station.

[41] The third
witness for Kabotana was Vasco Lionga a co-accused in the treason
trial who said he was at the moment ‘dying in prison’ in
Windhoek Central prison. He also has a pending claim against the
State. He hails from the same village as the second plaintiff and was
arrested on 1 September 1999. He testified that he first saw the
second plaintiff on 3 September 1999 at the KM police station. Lionga
testified that he saw Kabotana being removed from the cell in the
evening and without injuries and that upon being returned, the second
plaintiff suffered from injuries and that his shirt was covered in
blood. Kabotana was again removed from the cell on 4th September and
was bleeding upon being returned. According to the witness, the
bleeding was as a result of the plaintiff being assaulted on the old
injury (left eye) which had caused the bleeding the previous day.

[42] In
cross-examination, Lionga confirmed that he did not see any injury on
Kabotana when they first met in prison at KM police station. He also
confirmed that Mufuhi was also present in that cell. In answer to the
question whether it was reasonable to assume that he and Mufuhi would
have made the same observations about Kabotana, Lionga gave a rather
evasive answer stating that he could not tell what Mufuki saw –
a clear attempt to hide what differences there were between his
version (that Kabotana had no injuries when he first saw him) and
that of Mufuhi (that Kabotana had injuries).

As the record amply
demonstrates, Mufuki was an unreliable witness who kept changing his
story. I need to mention at this stage that the versions of Kabotana
and his witnesses about how he looked physically after the assaults
are radically different and do not corroborate each other.

Case for 3rd
plaintiff: Ernest Lifasi Lolisa

The particulars
of claim

Unlawful arrest

[43] The third
plaintiff (Lolisa) in his particulars of claim filed in July 2000
alleged that he was unlawfully arrested on 2 September 1999 at Makusi
village by unknown police officers. He alleged that he only appeared
before a magistrate in Grootfontein on 6 September 1999. Before
trial, the third plaintiff amended his particulars of claim in
respect of the unlawful arrest and named the arresting officers as
Simasiku, Mbinge and Karstens.

Assault

[44] As for the
alleged assault, the particulars stated that he was assaulted by
unknown police officers on the date of arrest at Makusi and during
the night at Katima Mulilo police station. On arrest he was
sjambokked, kicked and punched with fists while at the police station
he was repeatedly sjambokked. He sustained multiple lacerations and
bruises all over the body and sustained soft tissue injuries.

EVIDENCE IN
SUPPORT OF THIRD PLAINTIFF’S CLAIMS

[45] The third
plaintiff (Lolisa) testified that he was arrested on 2 September 1999
– at about 8 am - at Makusi village at his grandmother’s
home. He said he was arrested by Robert Chisavulio, Mbinge, Evans
Simasiku, Karstens and Henry Mwilima. When the police came to where
he was, Mwilima had a list of names on which his name was too.
Mwilima called out his name and when he responded to it, the assault
on him started and he was tied, kicked and brought to the police car
where the assault continued – with firearm butts. The assault
was perpetrated by Robert, Mbinge, Karsten, Henry and Simasiku.
During the assaults he was, he said, accused of being a rebel. His
hands having been tied, he was loaded onto a vehicle and taken to the
police station and on the way assaulted with fists by Robert, Evans,
Karstens and Henry. They arrived in the evening at the police station
and during that time was not given food or blankets to cover himself.
During the night he was taken to the charge office by Robert, had his
hands and feet tied with wire and was assaulted. Robert was forcing
him to sign a document as the assaults happened and he sustained an
injury to his chest. He in the end caved in and signed a document the
nature and content of which he did not know. The assaults ceased when
he signed the document.

[46] According to
Lolisa, the only visible injury he sustained was to the chest and he
experienced pain as a result of it for a ‘long time’.
When he complained about his injuries at Grootfontein, he was told
that it would be a waste of government money to take him to hospital
and that he had been taken to Grootfontein to die. For fear of being
victimised, he never complained of his injuries to the authorities.
Lolisa maintained that he was never informed of the reason for his
arrest and was only taken to a magistrate’s court on 6
September 1999 at Grootfontein.

[47] In
cross-examination, Lolisa stated that he was aware of the
secessionist arrests based on radio reports but stated he was not
aware of the operation being mounted by the army. He maintained that
neither was he informed of the reason for his arrest, nor brought to
court as required by the Constitution. He maintained that to this day
he does not know the reason for his arrest, is being forced by arms
to attend trial, and does not know why he is on trial.

[48] He denied that
he was arrested near a school in the Kaliyangela area or that it was
during an armed confrontation with the NDF during which Hansmeyer
(whom he knows), was killed. He denied that he was captured by
Mwilima following engagement with the NDF. He also denied that he was
handed over to the police by the NDF’s Mwilima after his
capture. He denied that the arrest was then effected by Karsten after
he had been handed over by the NDF to the police. He denied being
informed by Karsten of the reason for the arrest. Lolisa stated that
before his unlawful arrest he knew Henry, Simasiku and Robert and
that he had said as much to his practitioners of record. It was put
to him as incongruous that his particulars of claim (including the
amended one) state that he was assaulted and arrested by people
unknown to him.

[49] In
cross-examination, Lolisa said the injury he suffered during the
assaults was to the chest and that it was sustained at the KM police
station. The only cut sustained, he said, was to the right of the
upper torso, leaving a scar. He had not suffered any broken bone. The
cut, he said, was sustained at the KM police station and not during
armed contact with the NDF. He said he was alone when he was
assaulted at the KM police station. He denied that he had any scar on
his back sustained in the bush as he was hiding. Lolisa vehemently
denied that he knew the meaning of the word ‘rebel’ that
he was being accused of, although he asserted that he was denied food
and medical treatment because he was regarded as a rebel. It reached
the absurd point where he would say that he was called a rebel and
therefore denied food and medical treatment, but that because he does
not understand English, he does not know the meaning of the word
‘rebel’.

[50] Lolisa called
one Chiko Moses Kajoka a as a witness, also a treason co-accused with
a pending civil claim against the State. He too was arrested on 2
September 1999. He testified that he witnessed the assault on the
third plaintiff at the latter's grandmother’s house. He said he
saw the arresting officers tear off Lolisa’s shirt and
blindfolding him. The two of them were transported in the same car
and detained in the same cell 6. At the KM police station he saw an
injury to the left part of Lolisa’s chest. He only witnessed
Lolisa being taken out of the cell at night and visibly changed when
he was returned to the cell, showing the appearance of having
experienced an assault. Kayoha said he was arrested at Chivundu in
Kaliyangela whereas Lolisa was arrested at his grandmother’s
house.

[51] In
cross-examination, Kajoka denied that he and Lolisa were captured in
combat after one Tungulu had been shot.

The defence case

Introduction

[52] The witnesses
in opposition to the claims of all three plaintiffs are the same
group of officers. Each denies the factual averments made by the
plaintiffs against the defendant. In broad outline, the defendant
denies that the plaintiffs’ arrests were unlawful and it is
common cause that the arrests are admitted. The defendant’s
case is that each plaintiff was properly informed of the reason for
the arrest and that, in any event, the reason for the arrest was
obvious to each plaintiff from the surrounding circumstances. The
defendant denies the allegations of assault (i) alleged by each
plaintiff and relies on the denials by the officers to whom the
plaintiffs attribute the assaults, (ii) the absence of any report of
such allegation or evidence of visible injuries in official police or
prison records and (iii) the failure by the plaintiffs to report
alleged assaults or injuries resulting therefrom to persons in
authority.

[53] In respect of
the first and third plaintiffs, the defendant denies that they were
not brought to court within 48 hours of their arrest; and in respect
of the second defendant the defendant’s case is that although
on the face of it he was only brought to court outside the 48 hours,
the failure was not unreasonable as the magistrate, unknown to the
defendant’s officers, was not available and that the second
plaintiff was brought to court as soon as possible after arrest in
keeping with article 11(3) of the Constitution. In respect of this
latter denial, it bears mention that in the original plea the
defendant had alleged that second plaintiff could not be taken to
court due to security reasons. That has, just before trial, been
amended and it is now alleged that unknown to the officers a
magistrate was not available when the second plaintiff was taken to
court on 3 September 1999.

The defence
witnesses

[54] The first
witness called for the defence was inspector John Makani Lifasi who
at the material time (August/September 1999), was the station
commander of the KM police station. He testified that he became aware
of armed attacks in the Caprivi Region on 2 September 1999 at about
1-3 in the morning. He made contact with the charge office and got no
response. He took his riffle and drove to the police station. He was
then informed by a superior officer that the Caprivi Liberation Army
had launched an armed attack. He then saw gunfire coming from the
direction of the Katima Mulilo Hospital and took cover where he was
joined by the regional commander of Nampol. They eventually reached
the police station and there found a wounded officer, and another
officer (Kamati), who was fatally wounded. There was blood in the
charge office and wounded officers had gone in hiding inside the
police station. There was widespread gunfire around town and several
people were either injured or killed.

[55] In the wake of
the armed attack, the President of the Republic of Namibia had
declared a state of emergency in terms of which people could be
detained longer than usual. Lifasi testified that to deal with the
aftermath of the armed attack, several police officers from other
parts of the country were assigned to assist the Caprivi police with
the maintenance of law and order, investigations, arrests of suspects
and mopping up. This resulted in his station becoming very busy. Some
prisoners were therefore transferred to Grootfontein.

[56] Lifasi also
detailed his responsibilities as station commander and explained the
workings of the shift system, the procedures for the treatment, and
the processing and handling of inmates. Lifasi testified that the
procedure operated in the force and at his station is that all
inmates requiring medical attention are taken to hospital; if an
inmate is injured the officers will ascertain the nature and
circumstances thereof and if serious, it will be brought to the
attention of the station commander and in all circumstances entries
will be made in the Occurrence Book (OB). He was unable to recall if
in the aftermath of the armed secessionist attack injured suspects
were brought to the station and that if they were, the procedures he
outlined would apply. Lifasi also testified that standing
instructions are that where an investigating officer wants to see a
suspect detained at the police station, the permission of the shift
commander is required. He denied the allegation that the plaintiffs
or other secession suspects were denied food, but stressed that in
the aftermath of the attacks, many people were detained - and
preparing food for many people took rather long.

[57] Lifasi led into
the evidenced the OB of the KM police station for the relevant period
to demonstrate that the suspects arrested in the aftermath of the
secession attacks were fed regularly; and that no reports of injuries
and assaults were recorded.

[58] Under
cross-examination Lifasi testified that he could not tell how many
suspects altogether were kept at his station in the aftermath of the
attacks. He conceded that if an officer investigating the armed
attacks wished to see any of the implicated suspects, they could see
them at any time, day or night and that the shift commander could not
refuse such access. He stated that if an investigating officer had
access to a suspect without the permission of a shift commander it
would be contrary to standing procedures but that no such incident as
brought to his attention. He conceded that the OB would reflect any
contact between an inmate and a suspect and that the booking-out of a
suspect by an investigating officer ought to be reflected in the OB.

[59] In
cross-examination, Lifasi conceded that the OB of his station, as
respects the time the plaintiffs were taken into custody and
subsequently transferred to Grootfontein, does not show any entries
about the feeding, booking-out of the suspect plaintiffs for
interrogation and by whom, and specifically the booking-out of
Kabotana (second plaintiff) for the taking down of a warning
statement and the booking-out of Lubilo on 1 September for
pointing-out. He stated that it must be due to an omission on the
part of his subordinates at the station.

[60] It was
suggested to Lifasi that the fact that their colleagues were wounded
or killed might have induced anger towards the plaintiffs amongst the
officers who guarded over or interrogated the suspects. Lifasi
asserted that he felt no anger but did not suggest that others might
have.

[61] In
re-examination, Lifasi asserted that the omission in the OB was not
proof that the procedures to be followed in respect of the inmates
were not followed. He also stated that during the material time he
was short-staffed as one of his officers had been killed, one injured
and he had to surrender some of his officers to assist in the
mopping-up operation then going on in the region in the aftermath of
the secession attacks. He asserted that the OB showed that many
routine entries had not been made and attributed that to the work
overload and confusion which prevailed in the aftermath of the
secessionist attacks.

[62] The next
witness for the defendant was Evans Simasiku, an inspector in the
detective unit of Nampol based in KM in August-November 1999. He had
personal experience of the events that unfolded in KM following the
secession attacks.

[63] Simasiku
disputed the version by Mungulike that the second plaintiff was
assaulted. Simasiku testified that in the wake of the secession
attacks the officers of the KM police station had a heavy
administrative burden shared amongst only six officers. These
officers had to process a large number of suspects, decide who to
charge and who to release. As regards Lolisa, Simasiku testified that
this plaintiff was arrested on 2 September at Kaliyangela village,
together with Tungulu and Moses Kayoka, after he was handed over to
Nampol by Mwilima of the NDF. According to Simasiku, Karsten of
Nampol effected the arrest in English and Lolisa was able to
understand English. In respect of plaintiff's witness Kayoka,
Simasiku testified that led by the NDF, the police investigating unit
went to a suspected base of the secessionists where Kayoka was in the
custody of the NDF. At that base the party found injured and
dead secessionist combatants. Lolisa and Kayoka who had accompanied
the police and the NDF identified the dead amongst the secessionists
and told the police the identities of the armed combatants that had
run away.

[64] Simasiku denied
that Lolisa was assaulted. He maintained that after the arrest the
suspects were locked up in a van behind the car and that there were
no police with them and therefore no assault could have taken place
on the way to the police station. Simasiku also testified that the
investigating team only begun to interrogate the suspects on the 3rd
of September and that there were no interrogations on the 2nd as
alleged.

[65] As regards the
visible scars on Lolisa, Simasiku testified that these more likely
were sustained in the thick thorny bush that the armed combatants
were operating in at the time. Simasiku testified that at the time
the warning statement of Lolisa was taken, he was not present but
that he had been present and participated in his interrogation. He
also testified that Lolisa had after being arrested pointed out a
firearm to the investigating team. Simasiku testified that Richard
Mungulike was also arrested on the same day as Lubilo and Josef
Kabotana and that the trio was kept in separate cells and that
Mungulike could not have met Lolisa.

[66] In
cross-examination, Simasiku stated that by the time of the arrest of
the suspect plaintiffs they had a fairly good idea about who was
involved in the armed attacks and who the leaders were. He stated
that he regularly visited the lock-up cells were the inmates were
kept to see how they were doing. He said he paid such visits with the
permission of the charge office sergeant. He stated that when Lubilo
pointed out a firearm he had been taken from the cells and that
Karstens would have made notes of the pointing out. He stated that
any firearm pointed out would have been kept in a register.

[67] Simasiku
conceded that the KM OB does not show the dates and times he removed
the suspect plaintiffs from the cells for interrogation and suggested
that there was a lot of tension at the time and that the
investigating team was exhausted. He denied the suggestion that
suspects were taken out at night for interrogation saying that there
was no urgency to do the interrogations on the night of 2 September.
Simasiku testified further under cross-examination that when the
suspects were arrested he carried a pistol and an AK 47 assault rifle
and his colleagues were also armed. He denied that they had batons
and sjamboks. He stated that it was not necessary for them to torture
the suspects to obtain information. He denied coercing the suspects
to make admissions or confessions and stated that the suspects
cooperated.

[68] As for the
failure to bring Kabotana before court on 2 September, Simasiku
testified that they could not make arrangements on 2 September
because of the extensive nature of the mopping-up operation the
police were engaged in and the limited human resources at their
disposal.

[69] Simasiku
asserted that he had translated for Lubilo upon arrest by Karsten. He
also maintained that the case was postponed on 31 August by the clerk
of court, Mrs Theron and that the prosecutor was present.

[70] The next
defence witness was a registered nurse, Ms Maria Yambeka Nahole, a
lieutenant in the NDF. She was based at the Grootfontein military
hospital. Nahole testified that in August 1999 she attended on some
inmates arrested in the wake of the secessionist attacks. She
testified that as required by procedure they kept records relating to
the attendances on the inmates. Such records reflect the medical
complaint by a patient and the observations made by the medical
officer.

[71] Nahole
proceeded to testify about the medical records of the plaintiffs.
Relying on the file, she testified that she attended on John Lubilo
on 7 September 199 at 11H00. He complained of headache and chest pain
and she prescribed for him panado and multi-vitamin. She stated that
the patient did not complain to her about any injury and that she
would have recorded the same if the patient reported it to her.

[72] In
cross-examination, Nahole conceded that she does not speak or
understand Silosi, the language spoken by the inmates. She maintained
that she was assisted by an interpreter. She stated that as a nurse
she was authorised to make nursing diagnosis but that in serious
cases she would refer the patient to a doctor. She also stated in
re-examination that if there was a referral to a doctor, it would be
shown by her on the medical file of the patient.

[73] The next
witness for the defence was Jacobus Hendrik Karsten stationed at KM
at the time of the events giving rise to the present claims. He held
the rank of detective inspector. He described in general terms the
mayhem that arose in the wake of the rebel attacks: several people
were injured; scores had been killed; schools and businesses were
closed and the president had declared a state of emergency. On the
police’s side, six officers were committed to the mopping-up
operation and had their hands full. They had to effect arrests
following tip-offs and had to screen the suspects, a process that
involved determining who should be further detained and who should be
released.

[74] In regard to
Lubilo, Karsten confirmed that he was part of the group of officers
that arrested Lubilo, and two other suspects, at Kahende village
following information received. Karsten testified that in effecting
the arrest he identified himself and told the arrestees of the reason
for the arrests. He maintained that when they effected the arrests
they had enough information about the suspects and that they had no
need to act violently towards the suspects. He denied the allegations
of assault and was emphatic in his denial that they took anyone to
the Zambezi River for interrogation.

[75] Karsten
testified that Lubilo was taken from the cells for a pointing-out
according to the applicable procedures. He maintained that the
pointing-out was voluntary and that Lubilo took him to a village
where he dug out of the ground the firearm and a magazine covered in
white plastic.

[76] Karsten
testified that Richard Mungulike was arrested together with the first
plaintiff and upon arrest informed the officers that he did not act
alone and was prepared to go and point out others and ended up
pointing out 5-6 individuals whom the police then arrested, including
second plaintiff, John Kabotana. Kabotana was then arrested by
Karsten with the help of Chisavulio who interpreted for Kabotana.
Kabotana too was told of the reason for the arrest.

[77] Karsten denied
the assault allegations made against the investigating team and
stated that they were very busy during the day and were tired at
night and did not go to interrogate the suspects at night. He
testified that even after the state of emergency was lifted by the
president, there was still sporadic fire and they preferred not to
work at night in any event. Karsten denied the general allegation
about the mistreatment of the arrestees.

[78] Karsten
testified that he had on the morning of 3 September given instruction
that the suspects be taken to court but later received the report
from the officers he had detailed for the assignment, that the
magistrate was not present.

[79] As regards
Lolisa, Karsten testified that this plaintiff was arrested on 2
September after they received report of a gunfight at Kaliyangela
village. According to Karsten, when they came to that village Lolisa
was in the custody of the NDF and the special field force officers.
Karsten then arrested Lolisa who not only identified the body of an
accomplice ostensibly killed in combat, but proceeded to point out
the spot where a suspect rebel Hansmeier Tungulu was killed. Karsten
testified that he saw no physical evidence of an assault on Lolisa.

[80] As for Lubilo,
Karsten testified that he had a wound on the left foot which started
healing and that it was not necessary to take the suspect to
hospital.

[81] Karsten
testified that the suspects were put in a van and that it was a
safety risk to put them in an open pick-up. No officers sat with the
suspects in the van.

[82] In
cross-examination, Karsten conceded that in the aftermath of the
attacks emotions ran high in the force as some of the people killed
or injured were police officers. He stated that the arrests were
based on intelligence received and that a lot of people were released
after interrogation - presumably because there was no evidence
implicating them.

[83] Karsten stated
that Lubilo was able to understand when spoken to in English and that
it is possible that Simasiku also interpreted for him in Silosi.
Karsten testified that the pointing-out made by Lubilo is recorded in
the witness statement of Karsten. Mbinge had brought Lubilo to
Karsten and photos were also taken of the pointings-out made by
Lubilo. Karsten testified that he never visited the cells were the
suspects were detained at KM and was emphatic that he never took out
any suspect from the cells at night for interrogation.

[84] The next
witness for the defence was Sem Mbinge who, at the material time, was
based at Okakarara and was drafted in to assist with the police
operation in the aftermath of the secessionist attacks. During the
operation he worked under the command of Karsten. He also testified
about the circumstances surrounding the arrest of the suspect
plaintiffs. According to Mbinge, a suspected rebel combatant, Hobby
Habani Sinjabata, during interrogation implicated several
individuals, including Lubilo whom they then proceeded to arrest at
the Kahende village after he was identified by his wife. Mbinge said
it was in his presence that Karsten arrested Lubilo having informed
him of the reason therefor. Mbinge also confirmed that by the time
the investigating team went to arrest the suspects; they had already
had significant intelligence on them. He denied any assaults on the
suspects.

[85] Mbinge also
testified that it was on 1 September that Mungulike informed the
investigating team that he was not alone in the attack on KM and he
implicated several others. According to Mbinge, Mungulike was asked
to put on police uniform and a balaclava and in that disguise
identified potential suspects, two of whom were released after
questioning. Mbinge also testified that Kabotana was implicated by
Mungulike. He denied any assault on Kabotana by the arresting
officers and said it was he who took the warning statement from
Kabotana.

[86] Mbinge
confirmed that he was part of the group that on 2 September undertook
an operation at Kaliyangela and that because of that he was only able
to take a warning statement from Kabotana on 3 September as a
precursor to his appearance at court. He stated that on that date the
suspect was taken to court but that the magistrate was not available.

GENERAL FACTUAL
FINDINGS

Against the
defendant

[87] I am satisfied
that the concessions by the defendant’s witnesses (especially
Lifasi, Simasiku and Karstens) that the OB at KM police station (as
presented in evidence) is not as accurate as it ought to have been.
That corroborates the version of the plaintiffs who say they were
removed at night from their cells by certain Nampol officers. Whether
that was for the purpose of being assaulted is another question, and
will depend on what physical evidence there is of assault.

Failure to
bring Kabotana before a magistrate within 48 hours

[88] As I understand
it, the second plaintiff’s position is that the non-
availability of a magistrate on 3 September is not denied, but that
the defendant, who bears the onus, did not provide a
satisfactory explanation why no prior arrangement was made with the
court to ensure that someone would be available on 3 September for
Kabotana to be taken to court. The evidence led by the defendant on
that score only demonstrates that the police were overstretched in
the aftermath of the secession attacks. Karstens testified that he
had given instructions the morning of 3 September that Kabotana be
taken to court and later established that he did not appear because a
magistrate was not present. Public prosecutor Christopher Stanley who
testified on behalf of the defendant had testified that the court was
not too busy the morning of 3 September and that if arrangements were
made a prosecutor would have been available to deal with the matter.
He had himself to travel to Rundu the afternoon of 3 September (with
prior approval) to be with his family and was therefore not available
to convene court. It is clear from his evidence, firstly that no one
contacted him to make arrangements for the court to be available the
afternoon of 3 September and, secondly, had arrangements been made,
court officials would have been available for Kabotana to be brought
before court. The defendant has not led any evidence to show why no
arrangement was made for a magistrate to be available on 3 September
1999, which is the date on which he ought to have been brought before
a magistrate to comply with the 48-hour requirement in article 11 of
the Constitution. It follows therefore that the second plaintiff was
unlawfully detained beyond the 48-hour period after his arrest- which
is from the afternoon of 3 September 1999 until the morning of 6
September when he appeared before a magistrate in Grootfontein.

[89] Mr Coleman for
the defendant has argued that Kabotana is not entitled to damages
because when he appeared on 6 September 1999, he was refused bail and
that it follows that he was not going to get bail on 3 September any
way. I cannot agree with this line of reasoning. Being admitted to
bail is not the only reason a person must be brought before a
judicial officer after arrest. An arrested person must be brought
before court as a safeguard of their rights. It is before a judicial
officer that they can demand to be given access to a lawyer as early
as possible and to bring to the court’s attention any untoward
conduct from law enforcement officials. It is a right the court must
therefore enforce without fail, subject to the exceptions that are
contained in art 11(3) and s.50 of the CPA as referred to in the
Mbahapa judgment. Kabotana is therefore entitled to his
damages for the period that he was unlawfully detained.

Against
plaintiffs generally

Alleged failure
to be informed of reason for arrest

[90] All of the
defendant’s witnesses were adamant that the plaintiffs were
all, upon arrest, informed of the reason for their arrest. The
plaintiffs in my view knew the reason why they were being arrested
from the surrounding circumstances. Each one of them in
cross-examination conceded that they knew about the attacks that had
happened in the Caprivi before their arrests. From radio broadcasts
they knew that there was a state of emergency declared by the
president.

[91] Each one of the
plaintiffs conceded, either in evidence in- chief or under cross
examination that they were accused of being rebels by the officers
that arrested them. As I have already stated, the defendant’s
implicated witnesses have denied failing to inform Lubilo about the
reason for the arrest. Simasiku was present at the arrest of all
three plaintiffs and maintained that they were informed of the reason
for the arrest. Karstens denied that the plaintiffs were unlawfully
arrested. Mbinge was also present when all three plaintiffs were
arrested and he maintained that they were all informed of the reason
for the arrests. Aupa also testified that he was present when all
three plaintiffs were arrested and he was adamant they were all
informed of the reason for their arrests. The evidence of the
witnesses on the manner in which the plaintiffs were arrested was not
shaken in cross-examination.

[92] The plaintiffs
knew, at the very least from the surrounding circumstances of their
arrests, that they were being arrested because of a suspicion of
their involvement in the secessionist attacks that were perpetrated
by some people in the Caprivi region before their arrests.
Information about the reason for an arrest need not have the same
particularity of a charge sheet as long as the arrestee is made aware
of the nature of the allegation and that it constitutes a criminal
offence. I am satisfied that the defendant discharged the onus of
establishing that the arrests were lawfully executed as required by
article 11(2) and s 39 of the CPA. In view of the information the
arresting officers had, the defendant has also discharged the onus
that all plaintiffs’ arrests were justified. I am satisfied,
upon a preponderance of the evidence, that the police officers that
arrested all three plaintiffs informed them of the reason for the
arrest and that they had a reasonable suspicion that they had
committed a schedule 1 offence based on information received from
informants. None of the plaintiffs could dispute the evidence given
by the witnesses for the defendant that they had credible information
about the plaintiffs’ alleged involvement in the secessionist
attacks.

[93] The defendant
was able to establish that before setting out to arrest the
plaintiffs, the Nampol officers concerned and who testified in this
trial, had intelligence from persons suspected of being involved in
the attacks that the plaintiffs were also implicated in the attacks.
They were not going about aimlessly and were looking for specific
individuals, clear evidence that they had reasonable grounds for
believing that the plaintiffs were probably guilty of treason or
other serious offence.

[94] All claims of
the plaintiffs founded on unlawful arrest therefore stand to be
dismissed.

Discussion: first
plaintiff Lubilo

[95] A brief word
only needs to be said about Lubilo as regards his case and whether or
not his testimony is credible. I am in doing so also guided by the
conclusions to which I have already come in summarizing the evidence.
In Lubilo’s particulars of claim it is alleged that he was
brought before a magistrate on 31 August. He denies that he appeared
before a magistrate and states that at the court where he was taken,
Simasiku, not the court, postponed his case. He maintained that he
for the first time appeared before a magistrate in Grootfontein on 24
January 2000. He incredulously denied that he was detained after 31
August in terms of a valid warrant of detention. This posture by
Simasiku demonstrates that he is not a credible witness. He is
prepared to lied on a matter that can be objectively verified.

[96] Lubilo in
cross-examination, for the first time, stated that Karstens had
participated in the assaults on him and was actually responsible for
the most serious assault to his head. That allegation against
Karstens (and the injury to the head) was not made in the particulars
of claim and was also not mentioned in his evidence in chief and came
as a complete surprise. Lubilo also for the first time in
cross-examination alleged that he had been assaulted at Kahende where
he was arrested. Such assaults are not mentioned in his particulars
of claim, original or amended and an independent witness, Nahole, a
registered nurse who treated him at the Grootfontein prison on 7
September 199 at 11H)) stated that she saw no injuries such as Lubilo
alleges he did. Lubilo had complained of headache and chest pain and
for that she prescribed panado and multivitamin.

[97] Understandably,
Lubilo could not remember the number and identities of all the
officers who arrested him or allegedly assaulted him. He has,
however, not offered any satisfactory explanation why he could not at
the outset attribute, by the obvious characteristic of race, to
officer Karsten what he said was the most serious assault on him that
caused severe bleeding in the terms that he described before me.
Lubilo also failed to explain satisfactorily why the assaults
allegedly perpetrator at the Kahende village were not mentioned in
his particulars of claim. To these factors must be added the fact
that the plaintiff’s injuries were not reported to or noticed
by all the persons in authority with whom he had contact during the
relevant period. True, he attributes that to the assertion he makes
that he was told not to, on pain being harmed. But it must be borne
in mind that the defendants’ witnesses have all denied the
alleged assaults and attributed whatever injury they observed on him
to an admission allegedly made by him that he was injured during an
armed confrontation with Namibia security agencies.

[98] Lubilo’s
assertion in cross-examination that everyone arrested in the wake of
the armed insurrection in the Caprivi had been assaulted by the
police raises the real possibility that the allegation that he had
been assaulted is an afterthought. His version of events is even less
plausible if regard is had to the fact that either important aspects
of his case were not conveyed to his practitioners of record, or
stand in direct conflict with verifiable evidence such as that he
appeared before Court on the date that he says none of those things
happened; and that official records that his further detention was
authorised by a magistrate is not true.

The witness called
by him, Mungulike, being his co-accused with similar claims against
the government, did not really add much to the evidence of the first
plaintiff.

[99] To the extent
that I find that Lubilo lied about the injuries allegedly suffered,
Mungulike lied about noticing any injuries on Lubilo. Witness
Kabiana, also a co-accused with claims against the government,
testified that he saw a wound on Lubilo that looked like it had been
caused by a knife or an axe. This is clearly an exaggeration in the
light of what we know the medical records of Lubilo show. This
witness’s bias and motive to exaggerate and to place the
defendant in bad light is all too apparent. His evidence too is false
as regards Lubilo’s alleged injuries and stands to be rejected.

[100] For all of the
above reasons I find not only that Lubilo is not a credible witness
but that he lied in material respects as I have shown.

Kabotana

[101] Similarly, in
considering this plaintiff’s version, I also rely on the
conclusions to which I came in summarizing his evidence. In
cross-examination Kabotana conceded that it was possible that
Mungulike pointed him out to the Nampol officers as an accomplice in
the attacks. The brother of Kabotana, Zekia Oliver Kabotana, could
only say that he heard the plaintiff scream after the defendant’s
officers took him into the hut. He stated that he then later saw
items scattered in second plaintiff’s hut and notices a broken
chair. The screams he allegedly heard are consistent with a physical
assault on second plaintiff but do not tell us what kind of physical
harm was inflicted on the second plaintiff. The scream allegedly
heard by Zekia does not suggest that it led to the injuries which
second plaintiff claims to have sustained and which I will deal with
presently. I reiterate the observations I previously make about the
inconsistencies in Kabotana’s testimony and that of his other
witnesses.

[102] The evidence
of Joseph Mufuhi is even more suspect. This witness, the record amply
demonstrates, changed his evidence as the questioning continued. I
found him a very unreliable witness. I was compelled to bring to his
attention the fact that his evidence was not helpful to the Court.

[103] Kabotana’s
allegations about the assaults allegedly perpetrated on him whilst
detained are not consistent with those alleged in the particulars of
claim. He implausibly attributed that to a misunderstanding with his
legal practitioners of record. Kabotana’s alleged open wound
above his eye sustained during the alleged assaults was not recorded
in the medical records, as shown by the evidence of nurse Nahole. It
is clear therefore that he has lied about the wounds allegedly caused
by him by police officers.

[104] To the extent
that Mufuhi testified to seeing injuries on Kabotana which are
demonstrably false, his testimony too cannot be relied upon. There
was clearly a contradiction too between Mufuhi and Vasco Lionga,
another of the second plaintiff’s witnesses. Lionga too is a
treason trialist with pending claims against the government. Lioyisa
said that when Kabotana was removed from the cell, he had no injury,
but when he was returned, he noticed injuries on him. This is
inconsistent with Mufuhi's testimony that he saw visible injuries on
Kabotana.

I am therefore
satisfied that Kabotana had not adduced any credible evidence that he
was assaulted and that his claim based on assault, stands to be
rejected.

Lolisa

[105] In respect of
this plaintiff too, I reiterate all the conclusions about the
untrustworthiness of his testimony in crucial respects, and the
contradictions evident between his testimony and that of his witness.
Lolisa is one plaintiff who demonstrated at the trial that he has an
axe to grind. Rather inexplicably, he maintained under oath that
since his arrest he had not been informed of the reason for his
arrest; until now: i.e. even after he had been arraigned in this
Court (on his own admission) of amongst others, high treason. He
testified that he is being forced by arms to attend the treason trial
and that he does not know why he is on trial. There does appear to be
rather incriminating evidence implicating Lolisa in the attacks. The
defendant’s witnesses testified that he was the one person who
was with a Tungulu Hamsmeyer killed in action. Lolisa admitted he
knew Hansmeyer. His circumstances are also different from the first
two plaintiffs in that he was, on the unchallenged evidence of the
defendant’s witnesses, handed over by the NDF officers who had
captured him in action. He therefore has the motive to present events
in a way that is most damaging to the defendant.

[106] I had
previously shown that Lolisa had not in his particulars of claim
stated the names of the officers who had allegedly assaulted him.
This even after the amended particulars of claim had been filed
before trial. Yet, when he came to testify he was rather confident
about the identities of the people he said assaulted him.

[107] Another
significant detail is that according to the defence witnesses,
Mwilima was the NDF officer who handed over Lolisa to the police. In
the amended particulars of claim, Lolisa does not mention Mwilima
amongst the officers who arrested him, but in his evidence in chief
he stated that when the police came to arrest him, Mwilima was
present and was the one who read out his name from a list. It was
then that the assaults on him were perpetrated by Robert, Mbinge,
Karsten, Henry and Simasiku. How he could not have conveyed such an
important detail to his legal practitioner of record at the first
opportunity he had and soon after the alleged incident, is not
satisfactorily explained and points to the alleged assaults being
false. After all, he said he had known Henry, Simasiku and Robert
before his arrest. To associate people he knew with what was a
violent assault on him should not have been difficult.

[108] Chiko Moses
Kajoka testified that he was present when Lolisa was arrested and saw
the officers tear off Lolisa’s shirt and blindfolding Lolisa
with it. He said he saw Lolisa being assaulted along the way after
the arrest but could not satisfactorily explain how he could see any
assault on Lolisa if in his(Kayoha’s) particulars of claim he
alleged that he was blindfolded all the time after arrest. He also
testified that he saw a wound at the KM police station on Lolisa’s
chest.

[109] Chiko Moses
Kayoka who testified on behalf of Lolisa has the obvious bias that he
too has a pending claim against the government and is alleged by the
defence witnesses to be one of the people captured in combat together
with Lolisa. In view of that potential for bias and the inconsistency
that he was blindfolded but was able to see assaults on Lolisa, I
reject his evidence.

[110] Lolisa was
adamant that the only injury he suffered from the assaults was to his
chest and that he did not suffer multiple lacerations over his body
as alleged in his particulars of claim which were drafted soon after
the incident and presumably based on what was noticed on him by those
that drafted his particulars of claim. Simasiku testified that Lolisa
had what seemed like scratches on his body and stated that these were
more likely sustained in the thick thorny bush where the armed
combatants were operating at the time. Simasku also testified that
Lolisa had pointed out a firearm to the officers which was in the
bush. He also testified that Lolisa had identified other armed
combatants at Kaliyangela. Simasiku therefore points to evidence that
corroborates the version that the scratches seen on Lolisa might have
been sustained while operating in thorny bush.

[111] The denial by
Lolisa in his evidence of the multiple lacerations alleged in the
particulars of claim corroborates the defence case that he had been
operating in thorny bush where he sustained such lacerations and
clearly undermines his version of assaults by officers of the
defendant. I find therefore that it is more probable than not that
Lolisa had scratches on his body and that these were sustained by him
while operating in thorny bush and not as a result of assaults
perpetrated on him by police officers.

[112] I am satisfied
that the third plaintiff too has not on a balance of probabilities
established that he was assaulted by officers of the defendant. His
claim based on assault must therefore fail.

[113] THE ORDER:

1. 
   First plaintiff:
   John Mpanse Lubilo

   
   

Claims A and B
are dismissed with costs.

2. 
   Second
   plaintiff: John Genese Kabotana

   
   

Claims A is
dismissed with costs.

Claim B:
unlawful arrest: Dismissed with costs.

Claim B:
claim for unlawful detention: Succeeds with costs. In respect of his
unlawful detention from the afternoon of 3 September (starting at
16H00) until the morning of 6 September 1999 when the court convened
and his continued detention authorised: he is awarded N$12 000 with
interest at the rate of 20% per annum, with costs from the date of
judgment to date of payment.

3. 
   Third plaintiff:
   Enerst Lifasi Lolisa

   
   

Claims A and B
are dismissed with costs.

_______________________

DAMASEB, JP

ON BEHALF OF THE
PLAINTIFFS: Ms L Conradie

Instructed By:
LEGAL ASSISTANCE CENTRE

ON BEHALF OF THE
DEFENDANT: Mr G Coleman

Instructed By:
GOVERNMENT-ATTORNEY