State liable for damages – Judge

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Roland Routh

Windhoek-In a ruling delivered yesterday in the High Court Acting Judge Philanda Christiaans said the Office of the Prosecutor-General is liable for damages for the continued malicious prosecution of Richwell Kulisesa Mahupelo.

She however found the Namibian Police and the Namibian Government cannot be found at fault as the initial detention and prosecution were not malicious.

With regard to the police, the judge said: “On the principal claim of malicious prosecution based on the instigation of criminal proceedings by the first defendant (the police), the court ruled in favour of the defendant. The plaintiff (Mahupelo) failed to prove that the police did anything more than place the evidence before the Prosecutor-General, leaving it to the Prosecutor-General to decide whether to prosecute or not.

However she ruled the police are not liable for instigation or institution of criminal charges.

With regard to the PG on the principal claim, Judge Christiaans found that Mahupelo failed to make out a case against it and that the decision to prosecute was with probable cause and that there was no malicious intent.

With regard to the alternative claim of continued prosecution, the judge found the continuation of the prosecution was without reasonable and probable cause and with malicious intent.

“The second defendant is thus held liable for malicious prosecution based on the continuation or maintenance of the prosecution without reasonable and probable cause or animus iniuriandi and that the plaintiff is entitled to the payment of damages,” ruled the judge.

Mahupelo is claiming N$15.3 million for malicious prosecution and unlawful detention. He was also awarded costs including the costs of one instructing and two instructed counsels.

He claims he was a successful farmer before his arrest and claims N$780 000 in lost earnings for the time he was in detention and N$14.148 million in general damages.
According to him, he was unlawfully arrested and detained and maliciously prosecuted even after the State realised they had no evidence to convict him.

He claimed that he was arrested on March 16, 2000 near Katima Mulilo while driving together with Aggrey Mwamba and Bennett Matuso. While the car they were driving in were searched the police found an AK-47 assault rifle and they were arrested on the spot on suspicion of being part of the ‘Caprivi Rebellion’ that attempted to secede the then Caprivi, now Zambezi Region, from Namibia.

The attacks on August 2, 1999 caused the deaths of eight policemen and extensive damage to buildings in and around Katima Mulilo.

That led to mass arrests and was followed by what remains the longest running trial in the history of Namibia, dubbed the ‘high treason trial’.

Following years of court proceedings 49 accused were acquitted after successfully applying for release under Section 174 of the Criminal Procedure Act that authorises the courts to discharge an accused at the end of the State’s case if sufficient evidence to convict was not produced.

Mahupelo was one of the treason accused released.
He is represented by Advocate Andrew Corbett SC assisted by Uanisa Hengari.
Government is represented by Advocate Ishmael Semenya SC, assisted by Nixon Marcus, on instructions from the Office of the Government Attorney.

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