Former treason trialist claims N$36.7m in damages

A former Caprivi treason trialist who was in 2012 acquitted on high treason charges is suing the minister of safety and security, the prosecutor-general and the government for damages amounting to N$36.7 million.
The plaintiff, Kasika Rodwell Mukendwa, makes this claim as a result of what he termed wrongful, unlawful and negligent violation or infringement of his constitutional rights.
Mukendwa was in detention for almost 13 years during the period 26 August 1999 to 10 August 2012 at Katima Mulilo police station, thereafter at Grootfontein and later in Windhoek Central Prison.
In his particulars of claim he says he was arrested on 26 August 1999 near Katima Mulilo by the police. At the time of his arrest the police unlawfully seized his motor vehicle.
He claims the police maliciously set the law in motion by laying false charges that he was guilty of high treason and other serious
charges.
According to him the police when giving the disinformation had no reasonable cause for doing so nor did they have any reasonable belief in the truth of the information given.
He continues that the prosecutor-general and her employees maliciously set the law in motion against him and continued to do so by prosecuting him for the crimes they alleged without probable cause.
He argued he was prosecuted and was tried for high treason and other serious crimes such as among others attempted murder and murder and for that matter appeared and was tried in the Magistrate’s Court and the High Court of Namibia.


During all the period from 26 August 1999 until 10 August 2012 he remained in custody until he was not found guilty on all the charges and released on 10 August 2012. In total he was detained for 4 733 days.
According to him prior to his arrest and detention, he was the breadwinner of his family in that he since 1976 was employed as a foreman at Namib Mills in Katima Mulilo and earned a monthly net income of N$2 160 with an 10% annual increment.
He further claims he was a member of NDC/AMCOM retirement fund to which he and Namib Mills paid monthly contributions. Further, he said he was a farmer earning an annual income from crop farming activities, that is, N$200 000 from maize sales, N$50 000 from mahangu sales and N$108 000 from the sale of vegetables.
The plaintiff claims he was the owner of an orchard at Katima Farm on which he spent N$45 000 in establishment and set out costs relating to the clearing of land, the importation of fruit trees from South Africa and the establishment of irrigation facilities at the orchard.
He expected to earn about N$100 000 per annum from the sale of various fruit types from that orchard.
He was the owner of a herd of 65 head of cattle with a total value of N$97 000 as well as the herd of 100 goats valued at that time at N$7 000 and owner of 100 chickens which at that time was valued at N$2 500.
As result of his detention his farm of orchard and livestock fell into misuse and lack of care which resulted in total loss.
Mukendwa claims the costs of defending himself against the charges amounted to N$6 000 as well as general damages including humiliation and degradation, injury to self-esteem and to his reputation, deprivation of freedom, discomfort and inconvenience.
However, the defendants refuse to pay the sum of money to Mukendwa. They deny that the plaintiff is entitled to an award and that they are liable to the plaintiff as alleged or at all.
In their papers, they argue the plaintiff has not provided sufficient evidence for malicious prosecution and unlawful arrest and that there is no proof of evidence of complicity on the side of the prosecutor-general and no argument provided as to what she should have done.
They further argued the trial commenced within a reasonable time. However they maintain the completion of the trial was delayed by unforeseen circumstances including a trial-within-a-trial, the death of prosecutor C. Barnard, and two other prosecutors, Taswald July and Herman January who were critically injured in an accident resulting in their hospitalisation.
Other accidents resulted in the incapacitation or death of witnesses and investigation officers and other numerous interlocutory applications by the prosecution and defence which required considerable time to determine including institution of proceedings in the Supreme Court.
“In the circumstances the trial was conducted within a reasonable time,” respondents had maintained.

FRED GOEIEMAN