Judgement in the lawsuit of N$15.321 million for malicious prosecution and unlawful detention brought by Richwell Mahupelo against the government will be delivered next year February 2, Acting Judge Philanda Christiaans announced yesterday at the end of arguments by both counsels.
Advocate Ishmael Semenya SC on behalf of the Minister of Safety and Security, the Prosecutor General and the Government of the Republic of Namibia yesterday asked Judge Christiaans to dismiss the lawsuit with costs as Mahupelo failed to prove any of his claims.
Semenya, who is assisted by Nixon Marcus on instructions of the Government Attorney, was presenting arguments in the Windhoek High Court in the lawsuit of N$15.321 million brought by Mahupelo against the government.
There was nothing wrong with the arrest, detention and prosecution of Mahupelo (plaintiff), Semenya told the judge. According to him the mere placing of information or facts before the police or before the prosecution, as a result of which proceedings are instituted, is insufficient to found liability for malicious prosecution.
“Plaintiff has to prove that the police were actively instrumental in the prosecution of the charge. The question is whether the police did anything more than one would expect from a police officer in the circumstances, that is to give a fair and honest statement of the relevant facts to the prosecutor general,” he stated and continued: “Instigation will only be established if the plaintiff proves that the police knowingly put false information before the prosecutor general and that he was prosecuted as a result of such false information.”
In the present instance, Semenya said, the police received information from informers that the plaintiff supported the Caprivi Liberation Army (CLA) rebels with food before he was arrested. He further said the plaintiff was arrested after he was found in a car with one of the leaders of the CLA and an AK-47 assault rifle.
According to him, there can be no doubt that the information that was available to the police and the prosecution would lead a reasonable person to conclude that a person by the name of Richwell Shaini Mahupelo had participated in a conspiracy to overthrow the state by violent means.
According to Semenya, the only thing that saved Mahupelo from being convicted was that witnesses – including Mahupelo’s wife – failed to identify him in the dock.
He said it is significant to note Mahupelo himself did not dispute that the person referred to in witness statements as Richwell Shaini Mahupelo or Shaini Mahupelo was a reference to him.
He further said Mahupelo admitted under cross-examination that he was “baffled” by the fact his wife failed to recognise him in court. “His wife’s statement implicated him in bringing food to the house, storing such food and disposing of the food in a secretive manner. At the criminal trial his wife testified that she observed ‘foodstuffs’ being brought into the courtyard by the plaintiff and that it was taken at night by unknown persons,” Semenya added.
He also said it is most likely that if his wife had identified him, the court would have refused the application for a discharge and put him on his defence to explain why food was removed at night and where it was taken.
According to Semenya, the plaintiff failed to prove malice on the part of either the police or the prosecution and asked the court to dismiss the lawsuit with costs to include two instructed and two instructing counsels.
Advocate Andrew Corbett SC, assisted by Uanisa Hengari on instructions from Kavendji and Kanguuei Inc., represent Mahupelo.
His is the first of nine lawsuits that follow from the unsuccessful prosecution of 49 treason accused who were discharged on a Section 174 application in February, 2013 after the state closed its case.