Shiwovanhu v Minister of Home Affairs, Immigration, Safety and Security and Another (HC-MD-CIV-ACT-DEL-2022/05094) [2024] NAHCMD 244 (22 May 2024)


Unlawful arrest and detention and assault – Cause of action – Actio iniuriarum coupled with special features for unlawful arrest and detention.

Vicarious liability – Government – Police officer acting in his capacity as such within the scope of his employment.

Damages – General – Assessment.

Interest – Unliquidated damages claim.

Case summary

The plaintiff claims general damages from the defendants in the amount of N$100 000 for unlawful arrest and detention of three to four hours and N$100 000 for assault by members of the Namibian police force acting within the course and scope of their employment. The defendants deny the acts of arrest, detention and assault. The defendants allege that if an act is not recorded in the occurrence book, it did not happen, and the police station where the plaintiff claims to have been detained has no constructed holding cell.


Held that the actio iniuriarum having three essentials (an act which is wrongful and intentional and which violates a personality right) is the cause of action for unlawful arrest and detention and for assault.


Held that for unlawful arrest and detention the actio iniuriarum is coupled with special features. Firstly, if an arrest or detention is admitted or proved, it is prima facie wrongful and unlawful and a defendant carries the onus to prove its lawfulness. Secondly, a plaintiff need not allege or prove an intention to injure or an awareness of unlawfulness (animus iniuriandi).


Held that for assault, a plaintiff must prove physical interference through facts which indicate, prima facie and objectively, a wrongful act. Physical interference is usually wrongful. The allegation of assault implies wrongfulness and an intention to injure (animus iniuriandi). The onus to allege and prove a justification for an assault is on a defendant.


Held that the government, as an employer, may be vicariously liable for an unlawful arrest and detention and assault by a police officer acting in his capacity as such within the scope of his employment.


Held that the plaintiff was arrested without a warrant on 16 December 2021, detained at Ongha Police Station on even date albeit for a relatively short period of time, and he was assaulted by members of the Namibian police acting in the course and scope of their employment. The defendants failed to discharge the onus that the arrest and detention were lawful and that the assault was justified.


Held that any unjustified bodily interference with or restrain of a person’s person is wrong, and such person has a right to claim damages he can prove he suffered owing to the interference.


Held that in assessing damages for unlawful arrest and detention, the purpose is not to enrich the plaintiff but to offer solatium for injured feelings. The damages awarded should be commensurate with the injury inflicted while reflecting the importance of the right to personal liberty and that the arbitrary deprivation of personal liberty is viewed seriously in our law. Damages cannot be awarded with mathematical accuracy. It may be treacherous to slavishly follow awards made in previous cases as guides, but such cases are nevertheless helpful. Regard should primarily be had to all the facts of a particular case, and the quantum of damages should be determined on such facts while keeping the effect of inflation on the value of money in mind.


Held that where damages are difficult to assess, a court may resort to an educated guess on the material placed before it by making the best use of such evidence.


Held that having considered all relevant facts, including the plaintiff’s profession, the circumstances, nature and duration of his arrest and detention, the fact that there is no evidence that he was reasonably suspected of having committed a schedule one offence, and having considered awards made in other cases, the court is of the view that a fair and appropriate award of damages for the unlawful arrest and detention is an amount of N$18 000 and for the assault N$26 000.


Held that the plaintiff is only entitled to interest on the judgment debt from the date of judgment because, ordinarily, at common law, unliquidated damages claims do not bear interest, and a defendant cannot be in mora until the quantum of damages is fixed by a judgment of the court.

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