Malicious prosecution lawsuit dismissed
The Windhoek High Court has dismissed with costs a malicious prosecution lawsuit brought by Caprivi treason trial accused Moven Kawana Combo
Combo has indicated he will appeal the judgment.
Acting Judge Collins Parker ruled on Tuesday there was no malice from the state when it instituted or continued proceedings against Combo, and granted the state's application for absolution from the instance.
Collins dismissed the civil claim on the basis that no order can be made.
Combo's lawyer Professyn Muluti has confirmed that his client will appeal. “The judgement is wrong on the facts and in law,” Muluti said.
The Office of the Prosecutor-General, which opposed the lawsuit, has already lost four similar civil claims instituted by former treason accused. Combo had depended on these precedents to argue his case, while the state has lodged appeals in these matters.
In a ruling delivered in last year, Acting Judge Philanda Christiaan said the PG's office is liable for damages, following the continued malicious prosecution of Richwell Kulisesa Mahupelo.
Mahupelo was awarded a claim of 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.
Christiaan ruled that the state was liable for maliciousness based on Mahupelo's continued prosecution, without reasonable and probable cause. Another treason trial accused Rosco Matengu Makapa's claim was also based on the malicious continuation of his prosecution, without reasonable and probable cause. He won his matter on April 2017.
Kennedy Simasiku Chunga, as well as George Mutanimwe were also successful in their respective civil suits against the government.
However, in Chombo's case Parker found there was no malice on the state's part.
He found that there was no evidence that prosecutor Taswald July had acted maliciously.
According to him, in order to survive the absolution from instance application, Chombo should have placed before the court evidence that could lead to a finding in his favour.
“In that regard, authorities and precedents submitted by the plaintiff cannot supply evidence,” Parker said, adding that at the close of Chombo's case, the inference was that all the evidence against the state had been brought before the court. Parker added the judgment in Mahupelo's case, “which is a talisman” on which Muluti hangs the potential success of his client's claim, “is an illusion”.
Parker said in Mahupelo's case, the court had misinterpreted Section 6(1) (b) of the Criminal Procedure Act.
He said further that the court had overlooked legal precedents and authorities that once an accused is brought to court, in conformity with Article 11(3) of Namibian Constitution, the court may order the further detention of the accused, in the exercise of its free will.
“Therefore the defendants cannot be held accountable for the court's exercising of judicial discretion,” Parker said.
FRED GOEIEMAN
Combo has indicated he will appeal the judgment.
Acting Judge Collins Parker ruled on Tuesday there was no malice from the state when it instituted or continued proceedings against Combo, and granted the state's application for absolution from the instance.
Collins dismissed the civil claim on the basis that no order can be made.
Combo's lawyer Professyn Muluti has confirmed that his client will appeal. “The judgement is wrong on the facts and in law,” Muluti said.
The Office of the Prosecutor-General, which opposed the lawsuit, has already lost four similar civil claims instituted by former treason accused. Combo had depended on these precedents to argue his case, while the state has lodged appeals in these matters.
In a ruling delivered in last year, Acting Judge Philanda Christiaan said the PG's office is liable for damages, following the continued malicious prosecution of Richwell Kulisesa Mahupelo.
Mahupelo was awarded a claim of 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.
Christiaan ruled that the state was liable for maliciousness based on Mahupelo's continued prosecution, without reasonable and probable cause. Another treason trial accused Rosco Matengu Makapa's claim was also based on the malicious continuation of his prosecution, without reasonable and probable cause. He won his matter on April 2017.
Kennedy Simasiku Chunga, as well as George Mutanimwe were also successful in their respective civil suits against the government.
However, in Chombo's case Parker found there was no malice on the state's part.
He found that there was no evidence that prosecutor Taswald July had acted maliciously.
According to him, in order to survive the absolution from instance application, Chombo should have placed before the court evidence that could lead to a finding in his favour.
“In that regard, authorities and precedents submitted by the plaintiff cannot supply evidence,” Parker said, adding that at the close of Chombo's case, the inference was that all the evidence against the state had been brought before the court. Parker added the judgment in Mahupelo's case, “which is a talisman” on which Muluti hangs the potential success of his client's claim, “is an illusion”.
Parker said in Mahupelo's case, the court had misinterpreted Section 6(1) (b) of the Criminal Procedure Act.
He said further that the court had overlooked legal precedents and authorities that once an accused is brought to court, in conformity with Article 11(3) of Namibian Constitution, the court may order the further detention of the accused, in the exercise of its free will.
“Therefore the defendants cannot be held accountable for the court's exercising of judicial discretion,” Parker said.
FRED GOEIEMAN
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