CASE NO.: A 292/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

EPHRAIM KAHORERE AND OTHERS v THE MINISTER OF HOME AFFAIRS AND OTHERS

PARKER J

2011 February 22

CASE NO.: A 292/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

EPHRAIM KAHORERE  						First Plaintiff
ISRAEL KAHORERE 						Second Plaintiff
MANFRED TJIVAVA 						Third Plaintiff

and

MINISTER OF HOME AFFAIRS 					First Defendant
B JAN PETRUS BOOYSEN 					Second Defendant
DETECTIVE SERGEANT VAN WYK 				Third Defendant
AT VAN VUUREN 							Fourth Defendant
JAN PIENAAR 							Fifth Defendant

Delivered on:       2011 February 22

JUDGMENT

(a)	unlawful arrest and detention, and
(b)	malicious prosecution

(a)	unlawful arrest and detention, and
(b)	malicious prosecution

(a)	unlawful arrest and detention,
(b)	malicious prosecution, and
(c)	assault

[2] The plaintiffs testified on their own behalf; no other witnesses were called to testify on behalf of any of the three plaintiffs. The second, third and fifth defendants testified. The second defendant was the arresting officer, and the third defendant was the investigating officer of the stock theft case. The fourth defendant was the complainant in the stock theft case, as aforesaid. The fifth defendant was the owner of Farm Masinde where all three plaintiffs were interviewed by the second defendant during the wee hours of 8 June 2001. Mr. Maherero, a police official, Mrs. Tuhadaleni, also a police official, and Mr. Podewiltz, who was the public prosecutor in the stock theft case against the plaintiffs in the Gobabis magistrates' court, testified for the defence.

and I589/2008 (Unreported).)

[5] What was the basis of the second defendant's reasonably suspecting the plaintiffs to have committed the said offence? In this regard, I make the following factual findings.   The second defendant requested, and obtained, permission from his superior officer, Detective Inspector Isaacs, to assist in investigating the theft of 45 head of cattle, the property of the fourth defendant which theft the fourth defendant had reported to NAMPOL. From the aforementioned Johannes Rooinasie, the second defendant obtained what he considered to be useful information, which he believed to be reasonably true, that would assist him in his investigation. The second defendant prepared a statement based entirely on the information he had obtained from Rooinasie. According to that information, four persons were involved. Rooinasie identified two of them by name, i.e. the first and second plaintiffs, and a third whom he said he could identify if he saw him. The fourth suspect was unknown to Rooinasie; but Rooinasie said he knew where they all resided in Aroams.

[6] Following upon the information so received and which he reasonably believed to be true, as aforesaid, the second defendant proceeded to Aroams where Rooinasie pointed out to the second defendant the residences of the plaintiffs; the fourth suspect was not at home. Between the night of 6 June 2001 and early morning of 7 June 2001, as aforesaid, the second defendant arrested the plaintiffs at Aroams. Mr. Kasuto, counsel for the plaintiffs, sought to take issue with the fact that Rooinasie could not have pointed out the plaintiffs to the second defendant because according to Mr. Kasuto the plaintiffs did not see any such pointing out. This submission cannot take the plaintiffs' case anywhere further than where it is. For security reasons, Rooinasie was made to wear a balaclava at the material time to conceal his identity. I accept, as the second defendant testified, that this is standard police practice designed to protect persons who give such information to the

.. at that stage we believed that, we will get some more information from the suspects when we are questioning them for location of the stolen cattle and it is very convenient to move to this Masinde. It is very close to Aroams and it was having facilities which we can use. And if we receive any information about the whereabouts of the cattle we can operate from there, to try and get the cattle.'

I do not find anything untoward and sinister in what the Police did. In the end the plaintiffs were detained at the Gobabis Police station.

[10] I pass to consider the claim that the fifth defendant assisted in the arrest of the plaintiffs and therefore he is liable. I fail to see how the assistance given to the second defendant by the fifth defendant, at the request of the second defendant, in arresting the plaintiffs constitutes delictual liability on the part of the fifth defendant, as Mr. Kasuto argued. In terms of s. 47 of the CPA every private adult male of an age not below 16 years and not exceeding 60 years is obliged by law, when called upon to do so by a police official, to assist such police official in not only arresting a person but also in detaining a person so arrested; and such adult male fails to so assist a police official at the pain of penal sanctions, unless the adult male shows sufficient cause for failing to render such assistance. The evidence is sufficient that the second defendant asked the fifth defendant for such assistance and the fifth defendant obliged as he was under a statutory duty, as I said previously, to so do. Accordingly,
I come to the inevitable conclusion that Mr. Kasuto's argument on the claim is without any merit whatsoever.

[11] For all the aforegoing, I hold that the second respondent has discharged the onus cast on him to show that the arrest and detention of the plaintiffs are lawful. Consequently, the claims of unlawful arrest and detention of all plaintiffs fail.

'(i)    that  the  defendant  actually  instigated  or  instituted  the
criminal proceedings; (ii)   without reasonable and probable cause; and that

Relying on the authorities Damaseb JP stated at 404H:

'. it is trite that the mere placing of information or facts before the police, as a result of which proceedings are instituted, is insufficient to found liability for malicious prosecution.'

1949 1 PH J5 to the effect that, on the other hand,

When an informer makes a statement to the police which is wilfully false in a material particular, but for which false information no prosecution would have been undertaken, such an informer "instigates" prosecution.'

[17] It follows from the aforegoing reasoning and conclusions that the fourth defendant's conduct was not actuated by an indirect or improper motive (malice). The fourth defendant's reasonable and probable cause in placing the information before the police is that he had suffered a terrible loss, at the hands of unknown thief or thieves, of his property, the right to which is guaranteed to him by Article 16 of the Namibian Constitution. His conduct was good and bona fide and lawful; and so it cannot attract liability for malicious prosecution. I therefore I hold that the plaintiffs have failed to sustain the claim of malicious prosecution; and so this claim also fails.

654 (SE) at 662 C-F:

That is the manner in which I approach the determination of the third plaintiff's claim of assault.

[19] In his particulars of claim, the third plaintiff alleges that on 7 June 2001 at Farm Masinde the second defendant hit him with his right fist twice on his face and head, knocking him down more than once and also burned him with a prodder. The third plaintiff alleges further that the fifth defendant kicked him and threw him into a reservoir, full of water, and also burned him with a prodder. The second defendant and the fifth defendant deny that they assaulted the third defendant.

[20] I have carefully subjected the evidence on the claim of assault to the sort of scrutiny referred to above in the authorities cited previously. At the outset I must say that I find from the demeanour of the second defendant and the fifth defendant that they created a very good impression. They did not equivocate or prevaricate: they gave their answers to questions readily and without mental reserve in an attempt to hide the truth. The same cannot be said for the third plaintiff and indeed the first plaintiff who testified on behalf of the third plaintiff. For instance, the third plaintiff gave an improbable account of how he alleges the fifth defendant pulled him and carried him away and mounted some structure of steps while he carried the third plaintiff and threw the third plaintiff into a reservoir that was full of water. What is even more improbable is the way the third plaintiff described how the fifth defendant pushed the third plaintiff's head under the reservoir's water - not once, but several times - until after some time later when the fifth defendant pulled him out of the water and the fifth defendant, while he carried the third plaintiff, descended the steps from the rim of the concrete structure of the reservoir. The third plaintiff does not say whether he struggled to free himself from the fifth defendant when the fifth defendant carried him up and down the steps of the reservoir.

[22] It is only the second plaintiff who testified that he saw the third plaintiff being assaulted with a fist at Farm Masinde. That is highly improbable; he does not say with any conviction how he could see that since he was not in the room where the second defendant interviewed the third plaintiff. His evidence is too improbable and it will be unsafe to rely on it, particularly if the second plaintiff's testimony is viewed against the third plaintiff's changing-the-post versions of the alleged assault. In the third plaintiff's statement to the police on 7 June 2001, around the day of the alleged assault, the third plaintiff does not state that he was assaulted at Aroams. And at Farm Masinde; the third plaintiff says that he was beaten several times with fists on his chest and stomach. Furthermore, having weighed the second plaintiff's evidence against the unassailable and credible evidence of police officials Maherero and Tuhadaleni, I feel confident to reject as false the second plaintiff's evidence on the point.

[23] Thus, having applied my mind not only to the merits and demerits of the two mutually destructive versions respecting the claim of assault, and furthermore having taken into account the credibility of the witnesses and the probability or improbability of what they say, I find that the version of the defence witnesses is more probable and so I accept it and the version of the plaintiff witnesses is false and so I reject it. It follows that in my judgment; I find that the third plaintiff has failed to discharge the onus of proving that the third plaintiff's version is the truth. Consequently, I hold that the third plaintiff's claim of assault fails.

[25]   In the result I make the following orders:
(1)	The first plaintiff's claim is dismissed with costs on the party and party scale; such costs to include costs occasioned by the employment of two instructing counsel and one instructed counsel.
(2)	The second plaintiff's claim is dismissed with costs on the party and party scale; such costs to include costs occasioned by the employment of two instructing counsel and one instructed counsel.
(3)	The third plaintiff's claim is dismissed with costs on the party and party scale; such costs to include costs occasioned by the employment of two instructing counsel and one instructed counsel.

PARKER J

Instructed by:
							The Government Attorney; 
							Dr Weder, Kauta & Hoveka Inc.