Court reserves judgment in N$37m lawsuit
The court’s ruling in a N$36.7-million lawsuit against the State lodged by a former Caprivi treason accused, Kasika Rodwell Mukendwa, for malicious prosecution and illegal detention, was reserved until 24 November.
Mukendwa is suing the government for alleged infringement of his constitutional rights.
Judge Shafimana Ueitele postponed the matter after the Mukwenda’s lawyer, Advocate Andrew Corbett (SC) and the State’s counsel Advocate Ishmael Semenya, also a senior counsel from South Africa, concluded their arguments at the end of the hearing. Their respective instruction lawyers are Sisa Namanje and Advocate Thabang Phatela.
The former Caprivi treason accused is suing the safety and security ministry, the Office of the Prosecutor-General and the government.
Mukendwa is among the accused freed in 2012, 13 years after his arrest after the State conceded that the charges levelled against him had not been proven beyond reasonable doubt. According to arguments, if the prosecutors had exercised diligence, care and objectivity, they would have stopped his prosecution on 18 November 2005.
But, Mukendwa argues, the State continued with the prosecution up to 10 August 2012, without a single witness testifying against him. Mukendwa is arguing that this was done by the prosecution team to deliberately punish him for crimes he did not commit.
According to him, his prosecution was wrongful and malicious, arguing that there was no probable and reasonable cause for it.
Mukendwa in his lawsuit further argues that the State should have stopped the prosecution in terms of the provisions of the Criminal Procedure Act on 18 November 2005 or 6 March 2006, or within a reasonable period.
He is also claiming that he was arrested without a warrant and in circumstances where there was no probable cause for his arrest. Mukendwa also alleges that the police wrongfully and maliciously set the law in motion against him by laying false charges without reasonable and probable cause.
He was the first person to be acquitted on 10 August 2012 in the nine-year marathon trial.
The 73-year-old former truck driver was accused number 106 in the trial in which the remaining 110 men face 278 charges of high treason, sedition, murder and attempted murder in connection with a failed August 1999 attempt to secede the Caprivi Strip from Namibia by force.
During 2015 the State admitted that Mukendwa was arrested without a warrant and that he was held in a place of detention while awaiting trial. However, the State argued that there was reasonable suspicion that he committed serious crimes and was involved in the unlawful attack on government installations on 2 August 1999 at Katima Mulilo.
The State claimed that there was information that allegedly implicated Mukendwa and constituted probable cause, justifying prosecution in terms of the country’s laws. Defendants further added that the plaintiff’s trial started within reasonable time.
Mukendwa was arrested on 26 August 1999 at Katima Mulilo in the then Caprivi Region. He claims the police laid false charges against him and gave false information that he was guilty of high treason and other serious charges. This, he alleged, was done without sufficient information which substantiated the charges or justified prosecution on such charges.
Advocate Corbett said that the State’s failure to stop trial against his client when it was clear that there were no prima facie evidence against him led to reckless conduct.
“The plaintiff is entitled to damages. A reasonable prosecution team should have stopped the prosecution when they realised there was no evidence,” Corbett argued and added that there is no proof of Mukendwa’s involvement in the crimes he was charged with, together with the other suspects.
Corbett said if the remedy is not under common law basis, his client is entitled to damages under Article 24 of the Namibian Constitution containing fundamental human rights.
Advocate Semenya submitted that the claim for malicious prosecution and constitutional damages is unjustified because the plaintiff failed to provide the necessary evidence to support the claim.
Advocate Semenya argued that Mukendwa’s witnesses’ evidence ultimately proved to be contradicting his case.
“We ask that the claim be dismissed with costs,” Semenya submitted.
FRED GOEIEMAN
Mukendwa is suing the government for alleged infringement of his constitutional rights.
Judge Shafimana Ueitele postponed the matter after the Mukwenda’s lawyer, Advocate Andrew Corbett (SC) and the State’s counsel Advocate Ishmael Semenya, also a senior counsel from South Africa, concluded their arguments at the end of the hearing. Their respective instruction lawyers are Sisa Namanje and Advocate Thabang Phatela.
The former Caprivi treason accused is suing the safety and security ministry, the Office of the Prosecutor-General and the government.
Mukendwa is among the accused freed in 2012, 13 years after his arrest after the State conceded that the charges levelled against him had not been proven beyond reasonable doubt. According to arguments, if the prosecutors had exercised diligence, care and objectivity, they would have stopped his prosecution on 18 November 2005.
But, Mukendwa argues, the State continued with the prosecution up to 10 August 2012, without a single witness testifying against him. Mukendwa is arguing that this was done by the prosecution team to deliberately punish him for crimes he did not commit.
According to him, his prosecution was wrongful and malicious, arguing that there was no probable and reasonable cause for it.
Mukendwa in his lawsuit further argues that the State should have stopped the prosecution in terms of the provisions of the Criminal Procedure Act on 18 November 2005 or 6 March 2006, or within a reasonable period.
He is also claiming that he was arrested without a warrant and in circumstances where there was no probable cause for his arrest. Mukendwa also alleges that the police wrongfully and maliciously set the law in motion against him by laying false charges without reasonable and probable cause.
He was the first person to be acquitted on 10 August 2012 in the nine-year marathon trial.
The 73-year-old former truck driver was accused number 106 in the trial in which the remaining 110 men face 278 charges of high treason, sedition, murder and attempted murder in connection with a failed August 1999 attempt to secede the Caprivi Strip from Namibia by force.
During 2015 the State admitted that Mukendwa was arrested without a warrant and that he was held in a place of detention while awaiting trial. However, the State argued that there was reasonable suspicion that he committed serious crimes and was involved in the unlawful attack on government installations on 2 August 1999 at Katima Mulilo.
The State claimed that there was information that allegedly implicated Mukendwa and constituted probable cause, justifying prosecution in terms of the country’s laws. Defendants further added that the plaintiff’s trial started within reasonable time.
Mukendwa was arrested on 26 August 1999 at Katima Mulilo in the then Caprivi Region. He claims the police laid false charges against him and gave false information that he was guilty of high treason and other serious charges. This, he alleged, was done without sufficient information which substantiated the charges or justified prosecution on such charges.
Advocate Corbett said that the State’s failure to stop trial against his client when it was clear that there were no prima facie evidence against him led to reckless conduct.
“The plaintiff is entitled to damages. A reasonable prosecution team should have stopped the prosecution when they realised there was no evidence,” Corbett argued and added that there is no proof of Mukendwa’s involvement in the crimes he was charged with, together with the other suspects.
Corbett said if the remedy is not under common law basis, his client is entitled to damages under Article 24 of the Namibian Constitution containing fundamental human rights.
Advocate Semenya submitted that the claim for malicious prosecution and constitutional damages is unjustified because the plaintiff failed to provide the necessary evidence to support the claim.
Advocate Semenya argued that Mukendwa’s witnesses’ evidence ultimately proved to be contradicting his case.
“We ask that the claim be dismissed with costs,” Semenya submitted.
FRED GOEIEMAN
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