Zaako v Minister of Home Affairs, Immigration, Safety and Another v Security and Others (HC-MD-CIV-ACT-DEL-2023/04126) [2025] NAHCMD 89 (7 March 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

Case no: HC-MD-CIV-ACT-DEL-2023/04126

In the matter between:

CLEMENENCE ZAAKO 1^ST APPLICANT

KENNETH ORINA 2^ND APPLICANT

and

MINISTER OF HOME AFFAIRS, IMMIGRATION,

SAFETY AND SECURITY 1^ST RESPONDENT

RAPHAEL HAMUNYELA: COMMISSIONER

GENERAL OF NAMIBIAN CORRECTIONAL SERVICE 2^ND RESPONDENT

SAM FRANZ: OFFICER IN CHARGE OF HARDAP

CORRECTIONAL SERVICE 3^RD RESPONDENT

NAMBUNDUNGA DEPUTY OFFICER IN CHARGE OF

HARDAP CORRECTIONAL FACILITY 4^TH RESPONDENT

MUNIHANGO: HEAD OF SECURITY HARDAP

CORRECTIONAL FACILITY 5^THRESPONDENT

SUPERINTENDENT BASSON: UNIT MANAGER

MEDIUM/ MAXIMUM UNIT HARDAP CORRECTIONAL

FACILITY 6^THRESPONDENT

Neutral Citation: Zaako v Minister of Home Affairs, Immigration, Safety and Security (HC-MD-CIV-ACT-DEL-2023/04126) [2025] NAHCMD 89 (7 March 2025)

CORAM: MASUKU J

Heard: 12 February 2025

Delivered: 7 March 2025

Flynote: Application for a certificate in terms of s 12 of the Legal Aid Act 29 of 1990 - Considerations to be taken into account in granting such application - Inadvisability of Directorate of Legal Aid to furnish its conclusions on the sustainability of an applicant’s case.

Summary: The applicants were convicted of criminal offences that have no relevance to this matter. They were sentenced and thus kept in the custody of the Namibian Correctional Service. They allege that they were tortured and subjected to inhuman and degrading treatment and were also defamed. They instituted two claims against the Minister of Safety and Security, including the Commissioner-General of the Correctional Services. The claim was defended and the defendants raised a special plea of prescription. The applicants applied for legal aid, which was granted. The legal practitioners who were engaged to represent the applicants terminated their agency, apparently citing that the applicants’ cases had no merit. This resulted in the Directorate refusing to appoint further legal practitioners to represent the applicants.

Held: that the considerations taken into account in deciding whether to grant a special certificate in terms of s 12 of the Act include the interest of justice; whether the applicant can fend for himself and the seriousness of the consequences likely to arise if the person is not represented at the trial.

Held that: the State should be a party to the proceedings for s 12 to be invoked.

Held further that: it is incorrect for the Directorate to file reasons for rejecting an application for legal aid stating that the applicant has no prospect of success because this unduly influences the court.

Held: that in the instant case, the applicants are capable of dealing with the question of prescription on their own. Should the special plea of prescription fail, the court will consider granting the certificate as the applicants, on account of the seriousness of their case, are unlikely to efficiently and effectively mount their case.

Application declined on understanding that if the special plea of prescription fails, the applicants can approach the court on papers duly amplified and seek a certificate in terms of s 12.

ORDER

1. The application for the granting of a certificate in terms of section 12 of the Legal Aid Act 29 of 1990, is hereby refused.

2. There is no order as to costs.

3. Should the special plea be decided in the applicants' favour, the applicants are granted leave to approach this court on papers duly amplified for the issuance of a certificate in terms of the Legal Aid Act, 1990.

4. The matter is postponed to 17 March 2025 at 08:30 for a status hearing.

5. The parties are ordered to file a proposed court order regarding the further conduct of this matter on or before 14 March 2025.

RULING

MASUKU J:

Introduction

1. Two applicants stand before this court. They seek an order from this court essentially issuing a special aid certificate in terms of s 12(1), (2) and (3) of the Legal Aid Act 29 of 1990, ('the Act').

2. The application is opposed by the respondents and on grounds that shall be addressed in due course as the ruling in this matter unfolds.

The parties

3. The first applicant is Mr Clemence Zaako, a major male adult, whereas the second applicant is Mr Kenneth Orina, an adult male. Both applicants were held in the custody of the respondents. The respondents, on the other hand, include the Commissioner-General of the Namibian Correctional Service, the Ministers Safety and Security and Justice, together with some correctional officers. The correctional officers need not be specifically identified for purposes of the current application.

Background

4. The applicants who are convicted inmates were in the custody of the correctional services. In the last few months, the first applicant Mr Zaako was released and as such, he is no longer in the custody of the first respondent. To that extent, his situation has changed somewhat from that of the second applicant, Mr Orina.

5. The applicants launched action proceedings alleging violation of their constitutional rights by the respondents in that they were allegedly tortured, humiliated and subjected to degrading treatment. They also claim that they were subjected to arbitrary, wrongful and unlawful defamation of character by the respondent. They thus each claim the amounts of N$700 000 in respect of the first claim and another N$700 000 each from the respondents in respect of the second claim. The claims are defended by the respondents.

6. It is important to mention in particular, that the respondents raised special plea of prescription in respect of the applicants' claims. That special presently awaits determination by this court.

7. The applicants, it is common cause, approached the Directorate of Legal Aid ('the Directorate') and sought legal representation at the State's expense. The applicants' applications were granted and two legal practitioners were appointed by the Directorate to represent the applicants. It would seem however, that the said legal practitioners returned their briefs to the Directorate of Legal Aid, citing the reason that the applicants' respective cases have no prospect success. It would appear that in the light of the reaction of the legal practitioners concerned, the Directorate has refused to grant further legal assistance to the applicants.

8. It is in the light of the refusal by the Directorate that the applicants have approached this court seeking that it invokes the powers vested in it by s 12 of the Act. The question to determine, as indicated earlier, is whether this is a proper case for the court to exercise its discretion and issue a certificate for the applicants to be represented in terms of the said provision.

The Act

9. Section 12 of the Act, provides the following:

'A court may at any time issue a special aid certificate to any person who is a party in any civil proceedings, whether at first instance or at appeal, in which the State is a party if the court is of the opinion that -

(a) it is in the interest of justice that such a person should be represented by a practitioner other than the director; and

(b) such a person has insufficient means to enable him or her to engage legal practitioner to represent him or her.'

10. In the instant case, it is undisputed that the State is a party to these proceedings. This is so because the respondents cited above, are all appointees, employees and/or functionaries of the State. It therefor means the court has two questions to answer in arriving at a decision whether to grant this application or not.

11. The first question is whether it is in the interest of justice that the applicants should be represented by a practitioner other than the director. The second question is whether the applicants are not possessed of sufficient means to enable them to engage a legal practitioner to represent them. It is to answering the above questions that the court turns immediately below.

12. In answering the first question, the court derives guidance from the remarks made by the Supreme Court in the Mwilima ¹ and Khanyile² judgments. In this regard, although these remarks were made in respect to criminal matters, some of the considerations that the court takes into account in deciding the application are relevant to civil cases. The courts held that the considerations include the inherent simplicity or complexity of the case in terms of the law and fact; the ability of the accused to fend for himself; and the gravity of the case and possible consequences of a conviction.

This being a civil case, as mentioned earlier, the last consideration may have to be refined and considered in the context of a civil case. In this regard, the court would have to consider the gravity of the case and the possible consequences to the applicants if they are denied an opportunity to be represented by legal practitioners in their quest to vindicate their rights.

13. I am of the considered view that the case instituted by the applicants in the instant case, is complex. I say so because it involves allegations of constitutional violations and defamatory matter. Not every lay litigant would be able to competently marshal his or her case, with the requisite assiduity, considering the averrals in the particulars of claim and the relief sought.

14. I can also not in good conscience, overlook the fact that the Directorate initially granted the applicants legal representation at its cost. This would not have been done had the Directorate not been convinced that the applicants did need legal representation in order to prosecute their case. It seems to me, that the attitude of the Directorate was changed as soon as the legal practitioners the Directorate had engaged to represent the applicants, informed the Directorate that the applicants' case has no merit.

15. I have previously commented adversely about the propriety of legal practitioners and the Directorate placing before court the views they parochially about the sustainability or otherwise of a case that serves before the Directorate for purposes of deciding whether or not the case is a proper one for a legally aided legal practitioner to be appointed. Whatever the views of the Directorate and/or the legal practitioners appointed regarding the lack of prospects of success, those views must be discussed between the Directorate, the legal practitioners and the applicants for legal aid directly. Those views should not be placed before court as they may tend to influence the court’s view of the matter, which is improper.

16. In the instant case, the Directorate has taken the position that it would not be appropriate to offer legal assistance to the applicants because their case has no merit. The determination of that question ultimately lies within the province of this court's machinery to decide, after listening to the evidence that both the applicants and the respondent would adduce during the trial.

17. It is common cause that in the instant case, there is an issue of prescription that has been raised by the respondents in the matter. That is the first question that this court is called upon to decide. I have had contact with the applicants in this and other matters previously and I am of the considered opinion that they would be competent, at least at this stage, to deal appreciably with the question of prescription, particularly as it appears it will be determined on the papers.

18. Should the special plea prescription fail, I am of the considered opinion that the court would at that stage, be properly placed to reassess the applicants' application and consider allowing the applicants to be represented in the matter going forward in terms of s 12 above. In this regard, I am of the considered opinion that it would be in the interest of justice for the applicants to be afforded assistance to deal with the matter on the merits in the event they are able to pass the hurdle of prescription, which this court is yet to decide.

19. I am otherwise satisfied from the papers, that the applicants are not able to fend for themselves and to provide the necessary finances to obtain legal representation at their own cost. They have stated on an affidavit that they do not have the means to do so. This is understandable, considering that they are or have been for the past decade or so incarcerated and paying their dues to the society with no income.

20. In the premises, and considering the issue to be immediately decided, and my interaction with both applicants, I am satisfied that they would be able to competently deal with the issue of prescription, with the court ready to offer them whatever assistance and guidance they may need, if necessary, to deal with the case of prescription.

21. For the forgoing reasons, I am of the considered opinion that the applicants' application for this court to issue a certificate to them in terms of s 12 of the Act, should at this stage of prescription, be refused. As indicated above, if the special plea of prescription is dismissed, then the court will be in a position to reassess the situation and grant an order that it will consider appropriate, having had the benefit of information from both sets of the protagonists in this matter.

Conclusion

22. In view of the issues discussed above and the conclusions reached, it seems to me that the application must be dismissed as I hereby do.

Order

23. In the premises, the following order is accordingly issued:

1. The application for the granting of a certificate in terms of section 12 of the Legal Aid Act 29 of 1990, is hereby refused.

2. There is no order as to costs.

3. Should the special plea be decided in the applicants' favour, the applicants are granted leave to approach this court on papers duly amplified for the issuance of a certificate in terms of the Legal Aid Act, 1990.

4. The matter is postponed to 17 March 2025 at 08:30 for a status hearing.

5. The parties are ordered to file a proposed court order regarding the further conduct of this matter on or before 14 March 2025.

____________

T S MASUKU

Judge

APPEARANCES

APPLICANTS: In Person

RESPONDENTS: W Chinsembu

Of the Office of the Government Attorney