Dausab v Government of the Republic of Namibia (HC-MD-CIV-ACT-OTH-2021/01396) [2024] NAHCMD 702 (18 November 2024)

Case Title:

Andre Friedel Castro Dausab Plaintiff

and

The Government of the Republic of Namibia Defendant

Case No:

HC-MD-CIV-ACT-OTH-2021/01396

Division of Court:

Main Division, Windhoek

Heard on:

4 November 2024

Heard before:

Coleman AJ

Delivered on:

18 November 2024

Neutral citation: Dausab v The Government of the Republic of Namibia (HC-MD-CIV-ACT-OTH-2021/01396) [2024] NAHCMD 702 (18 November 2024)

Order:

1. The defendant’s exceptions are upheld.

2. The plaintiff’s claims are dismissed.

3. There is no order for costs.

4. The plaintiff’s concerns are being investigated by the Ombudsman’s office.

5. The matter is removed from the roll as finalized.

Reasons for order:

COLEMAN AJ:

Introduction

[1] This is an exception to plaintiff’s particulars of claim on the basis that it fails to disclose causes of action and is vague and embarrassing. The defendant raises at least ten complaints and contends the plaintiff’s pleadings are bad in law and unintelligible. On 28 March 2024 Oosthuizen J entertained an exception that plaintiff’s particulars of claim is vague and embarrassing. He held it is vague and embarrassing, appointed an amicus curae to assist plaintiff, and ordered him to file an amended particulars of claim by 15 May 2024. It is against these particulars of claim that the current exception is levelled.

The Particulars of Claim

[2] In my view it is more constructive to address the particulars of claim as the first stage in the enquiry. It is handwritten. Plaintiff is an inmate and was at all material times serving his sentence in the Hardap correctional facility. His claims appear to pivot around him feeling aggrieved with his treatment there.

[3] Claim 1 concerns the alleged unlawful deletion of valuable data from his laptop. It is not clear who, according to him, did it. For this claim plaintiff alleges the defendant is liable for N$ 10 200 000.00 for restoration of data. There is no indication how he arrives at this figure. He also claims N$100 000 000.00 under Claim 1 for loss of future income and business, as constitutional damages. Again, there is no indication of how he arrives at this amount and how he suffers this loss while serving a life sentence. He claims a further three amounts under Claim 1, being N$ 2 000 000.00 for ‘restitution for emotional stress induced by the act of deleting data without consent’, N$1 800 000.00 for ‘restitution of emotional stress and frustration induced by the process of recreating the deleted data’ and N$ 2 000 000 for ‘restitution of life-long emotional distress induced by loss of sentimentally valuable data’.

[4] For Claim 2 plaintiff alleges that since 5 April 2018 the defendant has unlawfully prohibited and denied him his ‘residual fundamental rights and freedoms provided by the Namibian Constitution’. In paragraph 19 of his particulars of claim he lists six instances of such breaches. This frankly makes no sense. It appears that he feels aggrieved by his treatment in general, since he feels his offender’s privileges had been impaired, amongst others. After setting out a number of complaints he claims N$ 800.00 per day, from 6 April 2018 to date of judgment, for these alleged impairments. He also asks for a series of interdicts.

[5] The plaintiff terminated the services of the amicus curae forthwith. As a result of the situation, I requested an official from the Office of the Ombudsman to attend court on 4 November 2024. Ms Husselman from the office of the Ombudsman generously attended court. She indicated that the Ombudsman’s office is prepared to inquire into and investigate the plaintiff’s situation in the correctional facility. She consented to me making an order to that effect, which I did on 4 November 2024.

Conclusion

[6] Defendant’s counsel contends that plaintiff was given an opportunity to address the complaints about his particulars of claim. Despite the appointment of an amicus curae he terminated his mandate and attempted the amendment on his own. He submits that the particulars of claim is fatally flawed and should be dismissed. I agree with. In my view this matter falls within the parameters of the Ombudsman Act, 1990, and the Ombudsman’s office has indicated their preparedness to address plaintiff’s concerns. The High Court is carrying a heavy burden as it is and should not be saddled with complaints that do not strictly translate into legal remedies.

[7] In addition, plaintiff filed handwritten pleadings, which are partially difficult to read. This adds to the difficulty to deal with matters such as this. Rule 131(2) of the rules of court requires that any document filed with the court must be clearly and legibly printed or typewritten. Lay litigants may have restricted resources, but it serves no purpose if the pleadings are difficult to read. In my view Rule 131(2) should be adhered to and be enforced.

[8] I consequently make the following order:

1. The defendant’s exceptions are upheld.

2. The plaintiff’s claims are dismissed.

3. There is no order for costs.

4. The plaintiff’s concerns are being investigated by the Ombudsman’s office.

5. The matter is removed from the roll as finalized.

Judge’s signature

Note to the parties:

G Coleman

Acting Judge

Not applicable

Legal Practitioners:

Plaintiff

First Respondent

Mr Dausab in person

Mr Kauari of Brockerhoff & Associates, instruct ted by The Office of the Government Attorney