Shikola v Minister of Safety & Security and Another (HC-NLD-CIV-MOT-GEN-2021/00004) [2024] NAHCNLD 134 (12 November 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: HC-NLD-CIV-MOT-GEN-2021/00004

In the matter between:

PETRUS SHIKOLA APPLICANT

and

MINISTER OF SAFETY & SECURITY 1^ST RESPONDENT

INSPECTOR-GENERAL OF THE NAMIBIAN POLICE 2^ND RESPONDENT

Neutral citation: Shikola v Minister of Safety & Security (HC-NLD-CIV-MOT-GEN-2021/00004) [2024] NAHCNLD 134 (12 November 2024)

Coram: MUNSU J

Heard: 30 July 2024

Delivered: 12 November 2024

Flynote: Review – Applicant seeking to review the decision of the second respondent to discharge him from the Namibian police force – Respondents raising a point in limine of prescription in terms of s 39(1) of the Police Act, 19 of 1990 – Court upholding the special plea.

Summary: The applicant had been a member of the Namibian police force until he was discharged by the second respondent after he was found guilty and sentenced for contravening provisions of the Anti-Corruption Act, 8 of 2003. He appealed against the conviction and sentence to this court, and upon hearing the appeal the court handed down judgment overturning the conviction and sentence. The applicant brought this review application, seeking an order directing the first respondent to review the decision of the second respondent to discharge him from the Namibian police force, failure which, an order granting him leave to approach this court on the same papers for an order that would review and set aside the decision of the second respondent. In opposition, the respondents raised a point in limine of prescription in terms of s 39(1) of the Police Act, 19 of 1990. They contended that the applicant failed to launch his application within 12 months as contemplated by the aforesaid provision.

Held, that the applicant never disputed the application of s 39(1) to the matter, nor did he allege that he complied with the provisions thereof.

Held, that it was common cause that the applicant was discharged by the second respondent in terms of s 8(1) of the Act, and that his cause of action emanated from his discharge pursuant to the provisions of the Act.

Held, that even if the court was to accept the applicant’s argument that the cause of action arose when his conviction and sentence were set aside, his claim against the respondents would still be outside the twelve-month period, because four years lapsed before these proceedings were instituted.

Held, that the applicant not only failed to institute his application within a year after the cause of action arose, but he also failed to notify the respondents in writing of these proceedings at least one month prior to institution.

Held, that the applicant never informed the court of any reason why he did not seek the waiver from the Minister for his failure to comply with the provisions of section 39(1).

Held, with reference to Benyamen v Government of the Republic of Namibia, that the provisions of section 39(1) are peremptory and non-compliance therewith is fatal to the plaintiff’s claim.

______________________________________________________________________

ORDER

______________________________________________________________________

1. The application is dismissed with costs.

2. The matter is removed from the roll: Case finalised.

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JUDGMENT

______________________________________________________________________

MUNSU J

Introduction

[1] The applicant, Mr Petrus Shikola had been a member of the Namibian police force since 01 February 2001 until April 2013 when he was discharged by the second respondent (the Inspector-General).

[2] During March 2021, the applicant launched this application, seeking an order directing the first respondent, the Minister of Safety and Security, to review the decision of the Inspector-General to discharge him from the Namibian police force, failure which, an order granting the applicant leave to approach this court on the same papers for an order that would review and set aside the decision of the Inspector-General, as well as an order reinstating the applicant to his former position, with his salary back dated to the date of dismissal.

[3] The application is opposed by the respondents.

The applicant’s case

[4] In his founding affidavit, the applicant states that he was stationed at Outapi Police Station and held the rank of constable. He was first assigned to the charge office, and then the Station Commander designated him as Shift Commander.

[5] The applicant avers that he applied to be reassigned to the Traffic Unit, and was sent to undergo a traffic course at the police training college. After completing his course, he was sent back to the Outapi Police Station where he and his two colleagues established the traffic unit for the entire Omusati Region.

[6] He further states that in May 2009, he was charged for allegedly contravening provisions of the Anti-Corruption Act, 8 of 2003, it being alleged that he corruptly solicited, accepted, or agreed to accept gratification, or by corruptly using his position for gratification. The aforesaid case was filed in the Outapi Magistrate's Court.

[7] The applicant continues by saying that while he was awaiting trial, he was again charged with corruption and obstructing the administration of justice. He states that in accordance with 23(1) of the Police Act, 19 of 1990 (the Act), he was suspended by the Inspector-General after undergoing a disciplinary hearing in July 2009. He adds that the suspension ended on 10 September 2010, and he was then moved to the Omahenene border station, where he was assigned charge office responsibilities.

[8] In addition, the applicant avers that on 03 July 2012, he stood trial in the Outapi Magistrate’s Court and was convicted of contravening s 35 of the Anti-Corruption Act, 2003 and was sentenced to a fine of N$ 5 000 or in default of payment 2 years imprisonment. He goes on to state that on 09 July 2012, he noted an appeal to this court, however, prior to the determination of the appeal, he was summoned to attend a hearing, (generally referred to as the Board of Enquiry) into his fitness to be a member of the force.

[9] Furthermore, the applicant states that during the enquiry, the Board Chairman explained to him with reference to the Act and Regulations thereunder, as well as the police manual, that a police officer is no longer fit to serve in the force if he is found guilty and convicted of a crime. He claims that he informed the chairperson of the Board that he had already noted an appeal, and requested that the enquiry be put on hold pending the outcome of the appeal as he would be greatly prejudiced if the investigation went forward and would suffer irreparable harm if his appeal was to succeed. The applicant further states that he was informed that he could write to the Inspector-General for reinstatement if his appeal was successful. According to the applicant, he agreed to go ahead with the enquiry.

[10] In addition, the applicant states that in April 2013, he received a letter from the Inspector-General stating that he had been discharged from the Namibian Police Force due to his conviction for corruption.

[11] Furthermore, the applicant avers that this court heard his appeal on 24 November 2015, and in a judgment handed down on 27 June 2016, this court upheld his appeal and set aside the conviction and sentence.

[12] The applicant continues by stating that he approached his legal practitioner of record who assisted him with drafting a letter to the respondents. He claims that only the second respondent replied to the letter, while the first respondent merely advised telephonically that enquiries should be made with the second respondent.

[13] The applicant goes on to say that the Police Act does not provide for an appeal in cases where a police officer is discharged after being found guilty, and which conviction is later overturned on appeal.

The respondents’ case

[14] Mr Albert Kawana, the Minister of Home Affairs, Immigration, Safety and Security deposed to the answering affidavit on behalf of the respondents. He raises, firstly, a point in limine of prescription in terms of s 39(1) of the Act.

[15] He states that s 8(2) of the Act, affirms that a member who has been discharged from the force or reduced in rank by the Inspector-General, may appeal to the Minister (within 14 days after the discharge) against the decision of the Inspector-General, and the Minister may set aside or confirm such decision. He adds that the applicant was discharged on 22 April 2013 and only appealed during September 2016, which was three years after the discharge.

[16] Mr Kawana states that the cause of action arose on 22 April 2013 when the applicant was discharged from the police force. He asserts that in terms of s 39(1) of the Act, the applicant had to give 1 month notice of the proceedings, and institute the proceedings within one year after the cause of action arose. Mr Kawana further states that the applicant failed to comply with both the 1 month notice and the 12 months period required. Thus, Mr Kawana asserts that the applicant does not have a valid claim against the respondents as same prescribed.

[17] Additionally, Mr Kawana states that the decision to discharge the applicant from the police force remains valid and can only be overturned by the Minister on appeal. He goes on to say that the applicant’s decision to wait for the outcome of the criminal appeal, fatally resulted in him missing the peremptory and statutory time lines with regard to the filing of his appeal.

[18] Furthermore, Mr Kawana claims that the letter the applicant wrote on 23 September 2016 does not constitute an appeal as contemplated in Regulation 13 of the Act, but rather a request for reinstatement. In view of that, Mr Kawana states that he can only deal with an appeal if the said appeal is lodged with his office in the prescribed manner.

[19] Mr Kawana ends by acknowledging that the Act does not make provision for appeal where a police officer is convicted and the conviction is set aside. He states that appeals are handled generally, and that if the applicant was aggrieved with the decision of the Inspector-General, he could have approached him in terms of s 3 (A)(1)(b) of the Act. According to Mr kawana, the applicant failed to exhaust all internal remedies.

The issues

[20] In terms of the case management report, the court has to decide whether the applicant’s claim against the respondents has prescribed. There is a further issue that arises from the papers, namely, whether the applicant exhausted internal remedies. On the merits, the court has to decide whether a proper case for review has been made.

Submissions by the parties

[21] Mr Ilovu for the respondents submitted that prescription began to run on the following dates:

1. On 26 April 2013, being the date the applicant was notified of his dismissal from the Namibian police force.

2. On 07 June 2016, being the date the applicant’s conviction of the crime of corruption was set aside by this court.

3. On 12 December 2016, when the Inspector-General advised the applicant to launch his appeal for reinstatement to the Minister.

[22] On all the above scenarios, the respondents contend that the applicant’s claim prescribed. The respondents argued that the applicant did not seek a waiver from the first respondent, granting him an exemption to bring this application outside the period contemplated in s 39(1) of the Act, nor did the applicant give the respondents the statutory notice of not less than 1 month before instituting these proceedings.

[23] On the merits, counsel for the respondents argued that, in a review application, the applicant bears the onus to satisfy the court that good grounds exist to review the conduct complained of. It was further submitted that on account of the applicant’s claim having prescribed, the applicant failed to show that there are grounds to review the decision of the respondents.

[24] Mr Ilovu went on to argue that the applicant’s failure to lodge an appeal to the Minister precludes him from reviewing the Inspector-General’s decision.

[25] On the other hand, Mr Aingura for the applicant submitted that the applicant was subjected to an administrative process subsequent to being erroneously convicted of a criminal offence, which conviction was set aside by this court. Counsel submitted that the judgment setting aside the applicant’s conviction, entitles the Minister and/or the court, to review administrative decisions taken on the basis of the conviction.

[26] Mr Aingura emphasised that, given the reasons provided by the respondents for the applicant’s dismissal, being on account of the conviction, an appeal would have been academic, as without this court’s judgment overturning the conviction, the reason for the dismissal would still have been valid. Thus, counsel contended that the applicant could only approach this court after his conviction was set aside.

[27] Counsel further submitted that the cause of action could only have arisen after the judgment setting aside the conviction and sentence, which by then, the 12 months period had already lapsed. Additionally, counsel argued that in terms of s 3 A(1), the Minister is not precluded from reviewing the second respondent’s decision. He implored the court to dismiss the point in limine.

Discussion

[28] It is appropriate at the outset to deal with the point in limine, as it has the effect of disposing of the matter, if successful.

[29] The applicant does not dispute the fact that s 39(1) of the Act finds application in the matter. Similarly, the applicant does not allege that he complied with the said provision. The aforesaid section provides that:

‘Any civil proceedings against the State or any person in respect of anything done in pursuance of this Act shall be instituted within 12 months after the cause of action arose, and notice in writing of any such proceedings and of the cause thereof shall be given to the defendant not less than 1 month before it is instituted: Provided that the Minister may at any time waive compliance with the provisions of this subsection.’

[30] It has been held that there is a clear distinction between acting within the course and scope of one’s employment and doing anything in pursuance of the Act.¹ In order to raise prescription in terms of s 39(1) of the Act, one must establish that the police official who is the cause of the complaint was acting in pursuance of the Act in order for the provisions of s 39(1) to be invoked.²

[31] In Bruni N.O. v Inspector General of Police³ the court had the following to say:

‘[32] The above authority makes it plain that there is no formula to determine whether the acts of a police officer are conducted within the course and scope of his employment or in pursuance of the Police Act. To resolve this issue, in my view, regard should be had to the reading of the Act, the purpose of the Act, the functions of the police created in the Act and the facts of each particular case.’

[32] It is common cause that the applicant was discharged by the Inspector-General in terms of s 8(1) of the Act. Thus, the applicant’s cause of action emanates from his discharge pursuant to the provisions of the Act.

[33] The respondents did not dispute the applicant's allegations regarding the board of enquiry proceedings i.e. they were a mere formality in which he was informed that his conviction rendered him unfit to continue serving in the force. The applicant acknowledged that the Inspector-General's decision to discharge him was justified as long as his conviction stood and that no amount of appeal would have changed his position regarding his suitability to continue serving in the police. In view of that, the applicant contended that the cause of action could only have arisen after this court overturned his conviction.

[34] Even if one were to consider the date of the High Court judgment (07 June 2016), or the date the Inspector-General advised the applicant to file his appeal with the Minister (12 December 2016) as being the date the applicant’s cause of action arose, his claim against the respondents would still be outside the twelve-month period, because four years lapsed before these proceedings were instituted (on 19 March 2021).

[35] In casu, the applicant not only failed to institute his application within a year after the cause of action arose, but he also failed to notify the respondents in writing of these proceedings at least one month prior to institution. The applicant did not state any reason why he did not seek the waiver from the Minister for his failure to comply with the provisions of section 39(1).

[36] In Mahupelo v Minister of Safety and Security and Others⁴ this court held that a reading of s 39 of the Act makes it clear 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 court went on to state that the object of the notice required under s 39(1) is to inform the State sufficiently of the proposed claim so as to enable it to investigate the matter.⁵

[37] In Minister of Home Affairs v Majiedt and Others⁶ the Supreme Court held that the 12-month limitation period and the requirement of 30 days prior notice before commencement of proceedings contained in s 39(1) of the Act are connected to a legitimate governmental purpose of regulating claims against the state in a way that promotes speed, prompt investigation of surrounding circumstances, and settlement.

[38] In Benyamen v Government of the Republic of Namibia⁷ this court concluded that the provisions of section 39(1) are peremptory and non-compliance therewith is fatal to the plaintiff’s claim.⁸ The court held further that the power to condone non-compliance with the requirements of s 39 is conferred on the Minister, and that if the court were to exercise that power, it would be usurping the power lawfully conferred on the Minister.

[39] Accordingly, the applicant’s claim should be dismissed as it has prescribed.

Costs

[40] The general rule is that costs follow the event. I find no reason why this rule should not be applied in this matter.

The order:

[41] For these reasons, I make the following order:

1. The application is dismissed with costs.

2. The matter is removed from the roll: Case finalised.

________________

D C MUNSU

JUDGE

APPEARANCES

APPLICANT: S Aingura

Of Aingura Attorneys

Oshakati

RESPONDENTS: N Ilovu

Of the Government Attorney

Windhoek.