JONATHAN MAIBA KOLELA PLAINTIFF

and

MINISTER OF HOME AFFAIRS, IMMIGRATION, SAFETY & SECURITY FIRST DEFENDANT

RAPHAEL T HAMUNYELA: COMMISSIONER-GENERAL
OF THE NAMIBIAN CORRECTIONAL SERVICES
IN NAMIBIA SECOND DEFENDANT

MR VEIKKO ARMAS: OFFICER IN CHARGE AT WINDHOEK
CORRECTIONAL FACILITY THIRD DEFENDANT

MR ROBERT NAUNDOBE: HEAD OF EDUCATION
AT WINDHOEK CORRECTIONAL FACILITY FOURTH DEFENDANT

Neutral citation: Kolela v Minister of Home Affairs, Immigration, Safety & Security & Others (HC-MD-CIV-ACT-DEL-2024/03526) [2025] NAHCMD 257 (15 May 2025)

Coram: SCHIMMING-CHASE J

Heard: 15 May 2025

Delivered: 15 May 2025

Reasons: 16 May 2025

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ORDER

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1. The special plea is upheld.

2. The plaintiff’s claim is dismissed.

3. There shall be no order as to costs.

4. The matter is finalised and removed from the roll.

___________________________________________________________________

EX TEMPORE JUDGMENT

___________________________________________________________________

SCHIMMING-CHASE J:

[1]The plaintiff, an inmate at the Windhoek Correctional Facility, instituted action against the defendants for damages for defamation of character on 20 September 2024.

[2]The plaintiff’s claim is based on actions and events that occurred on 17 October 2023 at the Windhoek Correctional Facility involving members of the Correctional Service. The defendants defended the matter and delivered a plea, including a special plea. It is the special plea that is up for determination.

[3]The special plea raised by the defendants is non-compliance with the provisions of s 133(4) of the Correctional Service Act 9 of 2012 (‘the Act’). Section 133 of the Act deals with indemnity and limitation of actions. Section 133 (4) provides that:

‘Notice in writing of every such action, stating the cause thereof and the details of the claim, must be given to the defendant at least one month before the commencement of the action.’

[4]The defendants’ point is that the details of the plaintiff's claim have not been correctly set out in terms of s 133(4), and further that notice of the action was not provided one month before the commencement of the action.

[5]The plaintiff attached two documents titled ‘Notice to Initiate Civil Litigation’. The documents were served on the Government Attorney (representing the defendants) on 14 November 2023 and 22 March 2024.

[6]Compliance with s 133, and in this case, s 133(4) has been held to be a prerequisite to be met by a plaintiff before instituting a civil claim against any act or omission done in pursuance of the Act. The notice must clearly set out the details of the claim. In Van Wyk v Namibia Correctional Service Commissioner General: Hamunyela¹ the Court stated as follows:

‘[27] Prinsloo J, in the most recent judgment on this aspect, dealt with the failure to comply with s 133(4) of the Correctional Services Act in Elia v Minister of Safety and Security and Others 2019 (1) NR 151 (HC)² as follows:

“Statutory notice of one month prior to the institution of these proceedings in contravention of s 133(4) of the Act.”

[32] In Mahupelo v Minister of Safety and Security and Others 2017 (1) NR 275 (HC), the court made the following remarks with respect to s 39 of the Police Act, which primarily carries the same intentions imposed by the legislature in s 133(4) of the Correctional Services Act:

“[16] It is clear from the reading of s 39 of the Police Act that a proper and timeous notice of intention to bring proceedings is a pre-condition for the institution of a civil action under the Police Act. The question that would arise from the reading of this section would point to the purpose of this notice.

[17] The purpose of the notice in terms of s 39 of the Police Act was expounded in a number of judgments in the Namibian and as well as the South African jurisdictions. This is what the courts had to say in the case of Simon v Administrator-General, South West Africa 1991 NR 151 (HC) (1992 (2) SA 347) at 153A:

'The object of the notice required under s 32(1) is, as had been said often enough, to inform the State sufficiently of the proposed claim so as to enable it to investigate the matter. See Minister van Polisie en 'n Ander v Gamble en 'n Ander 1979 (4) SA 759 (A) at 769H. The notice need not be as detailed as a pleading.'

[18] It has further been stated:

'The purpose for which the notice is required to be given is of importance. That purpose is to ensure that the State, or the person to be sued, receives warning of the contemplated action and is given sufficient information so as to enable it or him to ascertain the facts and consider them.”

[28] Finally, and relevant for purposes of the current decision, it so appears that the courts have held that a proper and timeous statutory notice, such as the one set by ss 133(4) of the Correctional Service Act, 2012, is a compulsory precondition that has to be met—and which aspect also has to be pleaded—to enable a claimant in a civil action against the state or any person for anything done or omitted in pursuance of any provision of the Correctional Service Act—to successfully launch any such claim’

[7]The defendants allege that the Notices to Initiate Civil Litigation, dated 14 November 2023 and 22 March 2024, respectively, do not meet the aforementioned statutory requirement, firstly because the details of the alleged claim are not pleaded in the particulars of claim or replication.

[8]The defendants point out that, although the plaintiff makes reference in the notice dated 14 November 2023 to ‘indefinite termination of study privileges,’ the issue in that Notice relates to the fact that the third defendant allegedly did not follow the correct procedure, when he made the decision to terminate the plaintiff’s study privileges. This has nothing to do with the claim before the court, relating to defamation and assault. Therefore, the said Notice fails to meet the requirement of ‘stating the cause thereof and details of the claim’ as required by s 133 (4) of the Act, which in turn defeats the purpose of the said section.³

[9]As regards the Notice dated 22 March 2024, the defendants point out that the relief sought by the plaintiff as set out in that Notice arose from 21 February 2023 until October 2023, and the plaintiff indicated that he aims to review, correct and set aside the decision made by the fourth respondent on 17 October 2023. The plaintiff further indicated that he seeks an order that regulations 264 and 265, published in terms of the Act, be declared unconstitutional. It is submitted that the contents of this Notice are similarly unrelated to the claim instituted by the plaintiff before the court.

[10]Considering the contents of the Notices and their dates of delivery, it is apparent that the plaintiff did not comply with s 133(4). Information relating to the claim to be instituted was not provided, and this would not have enabled the defendants to consider the claim to be instituted against them properly. The defendants also did not receive the prescribed warning of the contemplated action. It is clear that the summons was instituted on 20 September 2024. The two Notices to Initiate Civil Litigation were served on 14 November 2023 and 22 March 2024. They should have been served by the latest, 20 August 2024, which is a month before the summons was instituted. In these circumstances, the defendants have made out a case for the upholding of the special plea.

[11]The following order is made:

1. The special plea is upheld

2. The plaintiff’s claim is dismissed.

3. There shall be not order as to costs.

4. The matter is finalised and removed from the roll.

______________________

E M SCHIMMING-CHASE

Judge

APPEARANCES

PLAINTIFF: Mr Jonathan Maiba Kolela

Plaintiff

Windhoek Correctional Facility

DEFENDANTS: Ms Quine M. Fenyeho

The Office of the Government Attorney

2^nd Floor, Sanlam Centre, Independence Avenue

Windhoek