REPORTABLE

CASE NO.: SA 27/2009

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between:

and

Coram: Strydom
AJA, Langa AJA et O’Regan AJA

Heard
on: 11/07/2011

Delivered
on: 03/04/2012

____________________________________________________________________

APPEAL JUDGMENT

____________________________________________________________________

STRYDOM
AJA:

[1] The appellant issued
summons in the High Court in terms of which she claimed damages from
the respondent in an amount of N$741 400. The appellant alleged that
she was wrongfully and unlawfully detained in the Mental Health
Centre, Windhoek Central Hospital for the period 13 January 2003 till
15 December 2003. The claim was principally based on the Lex
Aquilia and, in the alternative, on the infringement of her
constitutional rights to personal liberty (Art. 7 of the
Constitution); her dignity (Art. 8 of the Constitution); to be free
from arbitrary detention (Art. 11 of the Constitution) and/or that
she was denied administrative justice (Art. 18 of the Constitution).

[2] In
regard to the main claim the respondent denied that the appellant was
detained unlawfully and wrongfully. Respondent pleaded that the
appellant was detained in terms of a court order which was issued
in terms of the provisions of sec. 77(6) of the Criminal Procedure
Act, Act 51 of 1977 and Chapter 3 of the Mental Health Act, Act 18 of
1973 (the Mental Health Act). For the same reasons it was denied that
there was an unlawful and wrongful infringement of the appellant’s
constitutional rights.

BACKGROUND

[3] The
appellant was charged with the crime of child stealing but it was
found that she was incapable of understanding criminal proceedings in
order to properly defend herself. This was found to be as a result of
a mental illness or defect as provided by the Criminal Procedure Act,
Act 51 of 1977. In terms of sec. 9(3) of the Mental Health Act a
reception order was issued by a magistrate and the appellant became a
President’s patient on 9 August 1999 which led to her being
taken up in the Mental Healthcare Centre in Windhoek.

[4] In the Mental
Healthcare Centre (the Centre) the appellant was, inter alia,
treated by Dr Japhet, a qualified Psychiatrist. On the 11 April
2002 the appellant was brought before the hospital board who
recommended that she be released. Ss. 29(4), (5), (6) and (7) of the
Mental Health Act set out the procedure to be followed to obtain the
discharge of a President’s patient not charged with murder,
culpable homicide or a crime involving serious violence. The official
curator ad litem, the Prosecutor-General, determined that the
appellant was a patient who fell within these provisions."

[5] Obtaining the
recommendation of the hospital board was the first step to be taken
towards the release of a patient. On 11 April 2002, the Hospital
Board made such a recommendation and the appellant was temporarily
released on leave from the 17 April 2002 till 17 July 2002. The
reason for her release on leave, according to Dr Japhet, was to see
if the appellant would be able to cope on her own. However, when she
returned from leave she was not as well as when she left the Centre
on the 17 April. Dr Japhet testified that she was again psychotic and
it would have been inappropriate to release her in that condition. Dr
Japhet testified that this relapse was due to the appellant not
taking her prescribed medicine regularly or at all. The doctor
testified that her disorder was of a genetic nature and that her
condition could only be controlled by regular medication.

[6] Dr
Japhet testified further that by September 2002 the appellant’s
condition was again such that she could be sent on leave and for the
period 18 September 2002 until 13 January 2003 she was released on
leave. When she returned, Dr Japhet stated that she was fine. This
the witness repeated on more than one occasion. Notwithstanding the
fact that the appellant was fine in January 2003, the process to
obtain her discharge as a President’s patient was only again
taken up on the 24 June 2003 when the recommendation of the hospital
board, together with that of the official curator ad litem,
the Prosecutor-General, were forwarded to the Minister of Justice.
This only followed after various letters had been written to Dr
Japhet by the legal representatives of the appellant, the Legal
Assistance Centre.

[7] Once
the matter was taken up by the Ministry of Justice further delays
occurred. From the correspondence attached to a statement of facts it
seems that the Ministry was of the opinion that only the President
could discharge a President’s patient and that the Minister of
Justice had no power to do so. This, so it seems, was based on the
stance that there was no delegation to the Minister of Justice to
discharge the appellant and that such delegation must first be
obtained from the President.

[8] After
further correspondence between Ms Hancox, of the Legal Assistance
Centre, and the Ministry the appellant ceased to be treated as a
President’s patient on the 15 December 2003 by order of the
President.

[9] This
opened the door for a Judge of the High Court to finally release the
appellant. This happened on 17 April 2004.

[10] When
the matter came to trial the parties handed up an agreed statement of
facts and the learned Judge was requested to firstly determine the
issue of liability and to let the issue of damages stand over.
Attached to the statement of facts were copies of correspondence
between Ms Hancox, of the Legal Assistance Centre, and the various
government institutions involved in the release of the appellant.

[11] The
statement of facts did not in any material way change the stance of
the parties as set out in their pleadings. It contained a list of
undisputed facts which confirmed the dates on which the various steps
were taken for the release of the appellant and it was also accepted
that all government officials acted at all times within the course
and scope of their employment with the respondent. These included the
Minister of Justice and officials within his Ministry; the Minister
of Health and Social Services and officials within his Ministry and
the hospital board and government officials employed by the
respondent acting for and on behalf of the said Board.

[12] The
issues to be determined by the Court a quo were set out in the
statement of facts and were the following:

“4.1 Defendant denies that the
period as from the date of the recommendation made by the Hospital
Board on 11 April 2002 until the date on which the State President
ordered that Plaintiff cease to be treated as a State President’s
Patient on 15 December 2003, some 20 months and 5 days, constitutes
an excessive and/or unreasonable delay of administrative action.

4.2 Defendant denies therefore that
Plaintiff was wrongfully and unlawfully detained from 13 January 2003
to 15 December 2003, a period of 11 months and 3 days.

4.3 In amplification, Defendant pleads
that Plaintiff was lawfully detained by virtue of a Court Order in
terms of the provisions of Section 77(6) of the Criminal Procedure
Act, Act 51 of 1977 and Chapter 3 of the Mental Health Act, Act 18 of
1973, on account of the fact that Plaintiff was found to be incapable
of understanding criminal proceedings so as to make a proper defence
by reason of a mental illness or mental defect.

4.4 Defendant denies that any of its
organs or employees or officials acted wrongfully or in negligent
breach of their duty of care and that they failed to:

4.4.1 act expeditiously and to take
steps to secure or facilitate a decision and/or make or cause an
order for the release of plaintiff in terms of section 29(4)(b) of
Act 18 of 1973 and not to unreasonably delay the aforegoing;

4.4.2 safeguard and uphold Plaintiff’s
constitutional rights, inter alia, under Articles 7, 8, 11(1)
and 18 of the Namibian Constitution.

4.5 Defendant denies that the
plaintiff has suffered general damages in any amount or that
Plaintiff is entitled to an award of monetary compensation in terms
of Article 25(3) and 25(4) of the Namibian Constitution.”

THE FINDINGS BY THE
TRIAL COURT

[13] In
regard to the delictual claim the Court concluded that the officials
did not act unlawfully or wrongfully, seemingly because the appellant
was detained in terms of a valid court order issued in terms of the
provisions of Chapter 3 of the Act. The Court nevertheless also found
that reasonable explanations were given by the Board for any delay in
taking the matter further, and that there was no unreasonable delay
in the Office of the Minister of Justice. In the circumstances the
appellant did not prove that a legal duty was owed to her.

[14] In
regard to the alternative claim based on the Articles of the
Constitution the trial Court concluded that the claim should fail for
the same reasons. Bearing in mind the history prior to our
independence, the trial Court found that Articles 7, 8 and 11(1)
related to detention in communicado, detention without trial
or unlawful detention, all practices designed to enforce the
obnoxious laws and policies of apartheid. Committal to a mental
institution bears no resemblance to such practices, and such
detention can therefore not be said to be a deprivation of personal
liberty, an insult to dignity or arbitrary.

COUNSEL’S
SUBMISSIONS ON APPEAL

[15] The
appellant was represented by Mr Tötemeyer who also represented
the appellant at the trial. Regrettably there was no representation
for the respondents.

[16] Counsel
in a full and able argument interpreted the various relevant
provisions of the Act and, with reference to the time periods it took
to obtain the release of the appellant, submitted that an order by
the Minister of Justice, whereby the appellant was no longer treated
as a President’s patient, pre-eminently involved the exercise
of a public power by a public authority. As this authority is
exercised in terms of a statutory enactment it falls within the ambit
of the definition of an administrative act. See, inter alia,
Administrator, Transvaal, and Others v Zenzile and
Others, 1991(1) SA 21 (A) at 34B – C.)

[17] Counsel
further submitted that the decision by the Minister of Justice was a
pre-requisite for the ultimate release of the appellant by a Judge.
The decision by the Minister therefore constitutes administrative
action which is subject to the provisions of Article 18 of the
Constitution which requires fair and reasonable action by
administrative officials. The failure to take administrative decision
within a reasonable time (especially where a statutory duty to act
exists) would be unfair and unreasonable. Counsel submitted that the
claim of the appellant could succeed under the Lex Aquilia
without the need to rely on the wider scope provided for in the
various articles of the Constitution.

THE APPEAL

[18] A
reading of the provisions of Chapters 3 and 4 of the Mental Health
Act makes it clear that once a magistrate is satisfied, on the
evidence presented to him or her, that a person is mentally ill to
such a degree that he or she should be detained as a patient he may
issue an order that such person be received, detained and be removed
to an institution. (Sec. 9(3) and sec. 28 of the Mental Health Act.)

[19] However,
it cannot be denied that the compulsory detention of a person in a
mental institution inevitably impairs the personal rights of the
detainee and in particular his or her right to liberty (Article 7 of
the Constitution) and dignity (Article 8 of the Constitution).
Although the Court may have been correct that one of the
considerations that informed the adoption of Articles 7 and 8 of the
Constitution was caused by detention without trial during the
apartheid era, the principles of liberty and dignity are far wider in
their scope. A person compulsorily detained in a mental institution
is physically restrained and his or her right of freedom of movement
has been taken away. He or she is subject to certain discipline
enforced by the institution where he or she is detained. (See
Minister of Justice v Hofmeyr, 1993(3) SA 131 (A).) I
conclude therefore that compulsory incarceration in a mental
institution where a person is mentally fit does impair the liberty
and dignity of a person.

[20] The
question that arises crisply in this case is what obligations are
imposed upon the respondent once the court order to detain a person
has been made in terms of section 9(3), to secure the release of the
patient once the patient is medically fit for release. That question
is answered by the provisions of section 29(4) – (7). These
sections provide that the Minister may order the discharge of
President’s patients who have not been detained in respect of a
charge of murder, culpable homicide or a charge of serious violence,
after the Minister has obtained a report from the hospital board
concerned and the official curator ad litem. The
Minister’s order is then forwarded to the superintendent of the
hospital where the prisoner is detained, who shall in turn furnish a
report on the patient’s condition to the official curator ad
litem, who shall transmit the documentation to the registrar of
the Court. The documentation is then placed before a judge in
chambers. The question that arises is what obligations are placed
upon the Minister, the hospital board, the superintendent and the
official curator ad litem by these provisions. Guidance in
answering this question is to be found in the decision of the South
African Appellate Division in Simon’s Town Municipality v
Dews and Another, 1993(1) SA 191 (A).

[21] In
that matter employees of the Municipality undertook the cleaning of a
fire belt on vacant land belonging to the Municipality. The fire got
out of hand and spread to the adjacent properties of the claimants
where it caused extensive damages. The Court a quo, having
found that the employees of the Municipality were negligent, found
for the plaintiffs but nevertheless granted leave to appeal to the
Municipality. The basis of the appeal was the Municipality’s
contention that sec 87 of Act 122 of 1984 afforded legal immunity
where it or its employees had acted, in good faith “in the
exercise of a power or the carrying out of a duty conferred or
imposed by or under this Act”. The following principle was
stated by Corbett CJ, in response to this submission, at p 196:

“A further important principle
is that, even where the statute does authorise interference with the
rights of others, the person or authority vested with the power is
under a duty, when exercising the power, to use due care and to take
all reasonable precautions to avoid or minimise injury to others.
Failure to carry out this duty has been described as 'negligence',
but, as pointed out by Prof J C van der Walt in Joubert (ed) Law
of South Africa vol 8 para 30, in this context the word is used
in a special sense; and

'(t)he presence of "negligence"
in this special sense in the exercise of a statutory power is,
however, a conclusive indication that the defendant has exceeded the
bounds of his authority and has therefore acted wrongfully.'

See also Neethling, Potgieter and
Visser The Law of Delict at 91-2; Van der Merwe en Olivier Die
Onregmatige Daad in die Suid-Afrikaanse, Reg 6th ed at 105-6;
Boberg The Law of Delict vol 1 at 771-3. In my view, these
writers all correctly state that jurisprudentially the consequences
of the repository of the statutory power having exercised it without
due care and without having taken reasonable precautions to avoid or
minimise injury to others, are that the repository must be taken to
have exceeded the limits of his authority and accordingly to have
acted unlawfully. Save for a fleeting remark in Kenly Farms (Pty)
Ltd v Minister of Agriculture 1984(1) SA 406 (C) at 410G, so far
as I am aware there has hitherto been no judicial pronouncement
specifically to this effect. I am nevertheless satisfied that the
analysis is sound and that it accords with modern distinctions in our
law of delict between fault and unlawfulness. The principle of
statutory authority renders lawful what would otherwise have been
unlawful; and if the implied limits of the statutory authority are
not observed the repository of the power acts without authority, or
in excess of his authority, and consequently unlawfully.”

[22] I
am of the opinion that the principle set out in the Simon’s
Town Municipality case, supra, also applies to the present
instance.

[23] In
the present case the defence of the respondent was that it was acting
in terms of a valid court order which was still operative and that
therefore it had authority to continue to detain the appellant. This
meant that there could be no question that the detention of the
appellant was unlawful at any stage. The court order, issued in terms
of a statute, the Mental Health Act, therefore authorized the
respondent to detain the appellant even in circumstances where
doctors considered she was fit for release. As long as there is a
valid court order the detention was not unlawful. This, in my
opinion, is no less than a plea of immunity for as long as there is a
court order.

[24] This
cannot be correct because it means that a person can be detained for
as long as the order subsists. It is so that the order authorizes the
institutions of the Government to interfere with the rights of a
person so certified but as was stated in the Simon’s Town
Municipality case that is not a carte blanche to such
institutions to act as they please. The fact is that the Mental
Health Act provides in detail the steps to be taken to obtain the
release of a person detained in terms of an order by a magistrate,
and once a person so detained is fit for release, a decision left to
the health authorities and the court, the steps prescribed by the
Mental Health Act must be complied with reasonably. Those authorities
that are mandated to obtain the release of a patient are therefore
under a duty to act cautiously and reasonably in order to minimize or
avoid further injury to such patient. Where this is not done they
will have overstepped their authority and a valid court order will
not assist them.

[25] I
can therefore not agree with the learned Judge a quo that for
so long as there is a court order in terms whereof a patient is
detained, detention will always be lawful. This presupposes that as
long as there is a court order a wrongful detention will still be
lawful and it could therefore be for any length of time. Although a
court order is necessary to detain a person the court has no role to
play in setting in motion the various steps for release of a patient
as was the case with the appellant.

[26] I
therefore agree with the submissions made by Mr Tötemeyer that
there was a statutory duty upon the Board and its personnel and the
Minister of Justice and his personnel to act reasonably. In
determining what is “reasonable” in the circumstances a
court will take into account the provisions of Article 7 (the
protection of liberty of the individual) and Article 8 (respect for
the dignity of the individual) and, in particular, bear in mind, as
noted above, that the compulsory detention of a person in a mental
institution, where that person is mentally fit, will be a limitation
of that person’s liberty and dignity.

[27] I
can also not agree with the contention of the learned Judge a quo
that protection by these Articles was not designed to include
unlawful detention in terms of the Mental Health Act and was framed
and meant to deal only with unlawful arrests of a particular type.
That is too narrow an interpretation of such important provisions of
our Constitution. Our case law suggests that, in the absence of other
considerations, the provisions contained in Chapter 3 of our
Constitution should be interpreted widely “so as to give to
individuals the full measure of the fundamental rights and freedoms
referred to”. (Per Lord Wilberforce in Minister of Home
Affairs and Another v Fisher and Another, [1980] AC 319 at 329
and applied with approval by this Court in Minister of Defence v
Mwandinghi, 1993 NR 63 (SC) at 70G.) A detention order, by
itself, is not necessarily in conflict with those provisions.
However, in this instance the problem lies in the fact that according
to the doctors attending her, the appellant was fit for release and
the question is whether the role players acted reasonably in order to
obtain the release of the appellant.

[28] In
the present instance the process for the release of the appellant was
started on 11 April 2002 when she was presented to the hospital
board, which, so it seems, was satisfied that the process could be
taken further. The appellant was then released on leave to see if she
was able to cope on her own. However, when she returned on 16 July
2002, she was again psychotic and Dr Japhet testified that it was
clear that she did not take her medicine regularly as was prescribed
for her. The release of the appellant was then put on hold. This was
done without involvement of the hospital board so that the Board’s
recommendation still remained.

[29] After
further treatment, the appellant was again released on leave on 16
September 2002. Dr Japhet testified that when she then returned to
the hospital on 13 January 2003, “She was fine.” Although
Dr Japhet testified that there were still some problems in regard to
the appellant he ended his evidence by stating that the appellant was
generally speaking fine and this statement covered the period 13
January 2003 until her release.

[30] The
problems referred to by this witness, bearing also in mind his
statement that the appellant was fine, must have been regarded as of
a minor nature. In the one instance the situation immediately
improved after he had had a talk with the appellant, and in the other
instance the problem was solved after her medicine was changed.
Neither of these two problems were described by Dr Japhet as
psychotic episodes and the relative ease with which these problems
were solved also show that they were not regarded as such. It was
also the evidence of Dr Japhet that since the return of the appellant
on 13 January 2002 until her release in April 2004 there were no
further relapses by the appellant.

[31] I
am satisfied that up to 13 January 2003 the actions by the hospital
staff and the explanation given by Dr Japhet why no further steps
were taken to obtain the release of the appellant, were reasonable. I
also did not understand Mr Tötemeyer to submit otherwise. Mr
Tötemeyer’s complaint was that after the appellant had her
relapse, after the first period of leave, it was not, in terms of
administrative law, correct for Dr Kanyama, to take it upon himself,
to decide to take no further steps in regard to the release of the
appellant. Counsel submitted that the matter should then again have
been brought before the hospital board for decision. Counsel may be
correct but nothing turns upon this issue and I need not decide the
point. In any event, because of the relapse of the appellant the date
of the hospital board’s recommendation has become irrelevant
with regard to the computation of the period for which she was
unlawfully detained. It, however, still served the purpose of
setting in motion the release procedure.

[32] The
recommendation by the hospital board for the release of the
appellant, together with a similar recommendation by the curator
ad litem, was only sent to the Minister of Justice on 24 June
2003. By that time the legal representatives of the appellant had
written various letters to Dr Japhet to urge him to speed up the
release of the appellant. There was no reply to any of these letters
although Dr Japhet testified that he drafted answers which he handed
to Dr Vries, the Superintendant of the hospital. If that is so there
is no explanation why these letters were not sent to the legal
representatives of the appellant.

[33] I
am of the opinion that the respondents did not present a reasonable
explanation why they waited until nearly the end of June before they
forwarded their recommendation to the Minister of Justice for his
consideration. The learned Judge a quo referred to an excerpt
from the evidence of Dr Japhet and concluded that because of her
condition it would have been unwise to release the appellant.
However, under cross-examination Dr Japhet was specifically referred
to the period 13 January 2003, when the appellant returned from
leave, to 25 June 2003, when the letter by the hospital board was
sent to the Minister of Justice which set in motion the release of
the appellant, and he was asked whether there was any change in her
condition during that period. The witness testified that the
appellant was generally doing fine. From the evidence it is not
always clear whether Dr Japhet referred to the condition of the
appellant after she had returned from the first period of leave or
the second period. The following excerpt from the cross-examination
of Dr Japhet cannot be reconciled with his attempts to justify the
sending of the recommendation of the Board only on the 24 June 2003.
The following questions were asked by Mr Tötemeyer:

“Q: Now you gave evidence that
after the patient came from leave that was in July 17^th
2002 there were some problems?

A: Yes.

Q: But on 18^th September
2002 she was sent on leave again?

A: Yes.

Q: Was she then fine?

A: She came back fine. She was fine
when she was sent and she was fine when she came back.

Q: So it is fair to say that she
actually then followed the conditions?

A: Exactly.

Q: By attending treatment at Tsumeb
at the hospital?

A: She had taken the medication. She
did that.

….

Q: Was she then fine, that is now
25^th June 2003?

A: She was fine.

Q: So there was no change in her
condition as from 13^th January or 18^th January
2003 until 25^th June 2003 as far as you are aware?

A: She was generally doing fine.”

[34] On
this evidence it seems that for all intents and purposes the
appellant was fine from January 2003 up and until 25 June 2003 and
even further until 15 December and up to her eventual release in
April 2004. I therefore conclude that the hospital board did not act
reasonably in delaying from January 2003 until 24 June 2003 before
they sent their recommendation to the Minister of Justice.

[35] Once
the hospital board sent their recommendation, together with that of
the official curator ad litem, to
the Minister of Justice, there was again a spate of correspondence
between the staff of the Ministry and the legal representatives of
the appellant. From the
correspondence it seems that the Ministry was uncertain whether any
action was required from them to secure the release of the appellant.
At one stage there was even reference that for them to act they
needed a delegation. The uncertainty of the Ministry continued even
after the legal representatives of the appellant referred them to a
precedent where the Minister of Justice, in similar circumstances,
had approved the release of a President’s patient in terms of
the provisions of the Act. Only after they were threatened with legal
action did the Ministry react and obtain a discharge from the
President, which, in terms of the Act, was the wrong procedure
prescribed by the provisions of sec. 29 of the Act.

[36] In
the light of the provisions of the Act it is difficult to understand
the attitude of the staff of the Ministry of Justice and why it took
them almost six months to obtain the discharge of the appellant as a
President’s patient, and then in terms of the wrong provisions
of the Mental Health Act.

[37] As
previously pointed out sec. 29 of the Act provides for the discharge
of a President’s patient. It distinguishes between patients
held with reference to a charge of murder, culpable homicide or a
charge involving serious violence, on the one hand, and a President’s
patient detained as such not in terms of a charge of murder, culpable
homicide or involving serious violence. In regard to the first
category only the President can order the discharge of the patient.
In regard to the second category the Act provides as follows:

“29(4) The Minister may order
the discharge of a President’s patient either absolutely or
conditionally or that he cease to be treated as such-

(a) on receipt of authority for such
an order under subsection (2);

(b) in the case of a President’s
patient detained as such in respect of a charge not referred to in
subsection (1)(a), after obtaining a report from the hospital board
concerned and a report from the official curator ad litem.

(5) It shall be the function of the
official curator ad litem to decide for the purposes of
subsections (1)(a) and (4)(b) whether any charge with reference to
which a person is detained as a President’s patient, involves
or does not involve serious violence.”

[38] The
reference to subsections 1(a) and (2) in subsection (4) are
references to President’s patients detained on a charge of
murder, culpable homicide or serious violence. In those instances the
Minister may order their discharge only on authority of the
President. They therefore fall into the first category set out herein
above. It is common cause that the official curator had determined
that the appellant was not detained in regard to a charge involving
serious violence.

[39] Furthermore,
section 1 of the Act, the definition section, makes it clear which
Minister must act in terms of sec. 29. It states as follows.

“Minister means the Minister of
Health, except in Chapter 4, where it means the Minister of Prisons
in sections 28 and 30 to 41 inclusive, and the Minister of Justice in
section 29;”

[40] In the light of the
above provisions, the Minister and his staff should not have had any
doubt as to what, in terms of the Act, the Minister's duties were.
The Act empowers specifically the Minister to grant a discharge of a
President’s patient who falls within the second category, set
out herein above, and the issue whether the Minister needed a
delegation, before he could act, is farfetched. Again I am of the
opinion that there is no reasonable explanation for the delay to act
in order to discharge the appellant as a President’s patient
which was a necessary step in the process before a judge could order
the release of the appellant.

[41] Judging
from the correspondence, originating from the Ministry to the legal
representatives of the appellant, which was always signed by a staff
member in the Ministry, the learned Judge a quo was of the
opinion that the Minister himself might have been unaware of the fact
that action was required on his part. That may be so but it is
clear from the pleadings that blame for the delay is also laid at the
door of the staff of the Ministry and if they were causing the delay
they were liable.

[42] I
am also satisfied that looking at the question of negligence that a
diligent paterfamilias would have, in the circumstances
described above, foreseen the possibility of his conduct causing loss
to another person, in this instance the appellant, and would have
taken reasonable steps to avoid such possibility. (See Kruger v
Coetzee, 1966(2) SA 428 (A) at 430E – F.)

[43] For
the reasons stated above I am satisfied that the respondents owed the
appellant a legal duty to take reasonable steps to secure her release
once her medical condition had improved to the point that her doctors
considered her continued detention in an institution unnecessary.
Detention seems to me to be in a niche of its own as far as
forseeability is concerned. Where a person is unlawfully detained the
person causing that can hardly be heard to say that harm was not
foreseeable. The liberty of an individual and protection against
arbitrary arrest and detention form the cornerstones of any
Constitution based on human rights and respect for the individual.
Without such protection there can be no free and democratic society.
In regard to Namibia this Court has found that the right to liberty,
set out in Art. 7, gives rise to a substantive right which guarantees
personal liberty. (See the unreported case of Jacob Alexander v
The Minister of Justice and Others, delivered on 9 April 2010.)

[44] I
conclude that the respondent was liable in terms of aquilian
liability for its omission to take reasonable steps to secure the
release of Ms Gawanas, once her doctors considered her continued
detention in the institution unnecessary. In the circumstances, it
is not necessary to consider the claim for damages based on the
Constitution.

[45] However,
it does not follow that the delay caused by the officials renders the
respondent liable for the whole period from 13 January 2003 till 15
December 2003. The process whereby a President’s patient is
discharged and released is, to a certain extent, time-consuming. It
is first of all not possible to predetermine the dates of discharge
and release as those depend on whether the patient is fit to be
released. Only once that is determined by the hospital board can the
process be set in motion, but once this decision is made by the Board
they must act expeditiously. The process further involves inputs by
the official curator, the Minister of Justice and a judge, each of
whom may call for further reports on the condition of the patient. On
a question by the Court Mr Tötemeyer submitted that three months
would be a reasonable period in which to complete the process.

[46] I
agree with counsel. A period of three months would afford those
involved in the process ample time to consider, and if necessary, to
call for further information to assist them. Depending on the
circumstances of each case, the period of three months must not be
regarded as being cast in stone and circumstances may arise which
would reasonably extend such period or even shorten it. In this
matter we have had the benefit of hindsight and bearing in mind that
in each instance the parties involved in the process have supported
the discharge and release of the appellant a period of three months
is reasonable. If one further allows for a period during which the
appellant was monitored, on her return from leave, it seems further
reasonable that the period of three months to start at the beginning
of February and run to the end of April. That leaves a period of
seven and a half months during which the appellant was detained
unlawfully.

[47] From
what is set out above it follows that I am of the opinion that the
appellant was detained unlawfully for a period of seven and a half
months from which it further follows, that the respondent is liable
to compensate her such loss she may have suffered as a result of that
unlawful detention. The question whether the damages proved, if any,
are causally connected to the harm suffered by the appellant is, in
my opinion, best left for decision by the trial Court who will be in
possession of all relevant facts.

[48] In
the result the following orders are made:

1. The order by the Court
a quo is hereby set aside and the following orders are
substituted therefore:

1. It
   is declared that:

   
   

1. The
   respondent acted wrongfully by omitting to take reasonable steps to
   secure the release of the appellant from 13 January 2003 until 15
   December 2003; and

   
   

2. Given
   the period of time that an application to release would ordinarily
   have taken, the period of wrongful detention is calculated to be a
   period of seven and a half months.

   
   

2. This matter is
referred back to the High Court of Namibia to be heard by any judge
in order to be determined in the light of order 1.1 above.

3. There is no order for
costs.

__________________

STRYDOM AJA

I agree

_________________

LANGA AJA

I agree

_________________

O’REGAN AJA