High treason acquitted loses lawsuit against govt

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Maria Amakali

Windhoek-One of the persons acquitted in the Caprivi High treason lost his lawsuit case against the State on Friday after the High Court dismissed his claims for malicious prosecution and unlawful detaintion, for which he demanded N$30,4 million in compensation.

High Court Judge Philanda Christiaan found that the claims by Rosco Matengu Makapa, on which basis he sued the State, did not hold up to the court’s test. It was on that basis that Christiaan dismissed all three of the four claims that Makapa brought to court.

“The point in limine (meaning ‘at the start’) regarding the alleged non-compliance with Section 39 (1) of the Police Act No 19 of 1990 is dismissed. The action against the [Minister of Safety and Security] for malicious prosecution is dismissed, with costs.

“The claim against [the Prosecutor General] for instituting criminal proceedings against [Makapa] is dismissed,” read the order by Judge Christiaan.

Christiaan also dismissed the claims that Makapa was unlawfully prosecuted with cost. The reasons for the judgement were delivered in chambers closed to the public and were not available by Friday afternoon.

Makapa was previously acquitted and found not guilty of all charges in the treason trial in February 2013. By that time he had spent more than 13 years in custody for his alleged involvement in the Caprivi secession attempt between 1998 and 2003.

The court upheld Makapa’s claim of malicious continuation of the prosecution without reasonable and probable cause.

Makapa through his lawsuit had claimed that before his arrest on August 29, 1999 he was employed as teacher at a school in the vicinity of the then Caprivi Region (now Zambezi). He claimed that the prosecutor general at the time decided to prosecute him in the main treason trial, despite having insufficient evidence to justify the prosecution.

The main trial, which started with a jurisdiction challenge in late 2003, had two witnesses who failed to identify him, although they had mentioned him in their witness statements.

He claimed that as the case was nearing its end and no further witnesses were called to testify against him on the charges that were being laid against him, the State still went ahead with the prosecution.

The prosecution would have known better by November 2007 up until 2011 that there was no case against him, but failed to life the charges and as a result he remained in prison until he was found not guilty in February 2013, Makapa claimed.

In their defence, the PG said Makapa’s prosecution was based on compelling evidence that needed to be tested in a court of law. Further, the PG had no knowledge if all evidence that could have implicated Makapa was presented at the close of the State’s case against him.

The judge granted the cost in favour of Makapa against the prosecutor general and the government. Advocate Clive Kavendji appeared on behalf of Makapa.

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