State sued for N$3.8 million

A man who spent five years in prison pending his trial on murder and robbery charges is suing the State for deprivation of freedom.

18 July 2019 | Justice

A man who was cleared of murder and robbery charges after he had spent more than five years in jail awaiting the completion of his trial is suing the prosecutor-general and the inspector-general of the Namibian police for close to N$4 million in damages.

In February 2018, Simeon Shishiveni filed his suit at the Windhoek High Court, asking to be awarded N$3.8 million for deprivation of freedom, discomfort suffered and a deliberate offensive act after he had spent nearly 2 000 days in custody before being found not guilty.

In his particulars of claim, Shishiveni details that he spent 1 915 days in custody after his arrest in November 2009 on charges of murder and robbery with aggravating circumstances.

He pleaded not guilty alongside his co-accused and was acquitted on 31 March 2015.

Shishiveni told the court that employees of the prosecutor-general's office had “wrongfully and maliciously set the law in motion” in November 2009 by charging him.

Shishiveni argues that his prosecution was unreasonable and without probable cause, and that prosecutors lacked sufficient information to take legal action against him.

Both the prosecutor-general and the inspector-general of the Namibian police are defending the action brought by Shishiveni.



Clues

Muriel Caroline van Zyl, a witness for the defence, and the control prosecutor at the Windhoek regional court, in her statement submitted to the court argued that although Shishiveni was not convicted of the crimes he had been charged with, it did not mean the prosecutors had acted maliciously or lacked probable cause.

“There was no reason for the prosecution not to believe the truthfulness of the evidence under oath provided by the Namibian police.”

She said although the evidence “was at best circumstantial”, a co-accused had implicated Shishiveni and his fingerprints had been found at the scene of the crime.

She added that the evidence given by the co-accused implicating Shishiveni was not challenged until Shishiveni testified in his own defence.

Moreover the police had found “certain stolen properties” at Shishiveni's house, although he was not charged with possession of stolen property, Van Zyl explained.

“It was plausible for the State to draw an inference that [Shishiveni] had committed the offence,” she said.

She underlined that the State at all times believed he was implicated and stressed there was sufficient cause for the prosecution to conclude that he had committed, or could have committed, the offences.



Five years

Van Zyl also argued that the delay in the finalisation of the trial could not solely be blamed on the prosecutor-general's office and that all parties had contributed to the postponements that held up the trial.

“Had it not been for all this, the matter should have been finalised within a shorter period of time.”

She pointed out that according to the record most of the postponements were caused by either the absence of an accused or by their legal counsel.



Van Zyl noted that the prosecutor who handled the case, a certain Mr Gawiseb, “is an impartial person and the record of this matter does not indicated that he harboured any bias”.

She added that as the control prosecutor, she could confirm that Gawiseb is a “diligent and professional employee who performs his duties with the utmost care and skills.”

Kadhila Amoomo is acting on behalf of Shishiveni, while Jolanda van der Byl from the Office of the Government Attorney is acting on behalf of the defendants.

The case was placed on the action floating roll for continuation before Acting Judge Kaijata Kangueehi this week.

JANA-MARI SMITH

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