David and Others v Minister of Safety and Security and Another (SA 95/2022) [2025] NASC 13 (21 May 2025)

NOT REPORTABLE

CASE NO: SA 95/2022

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

DAVID DAVID	First Appellant
SIMON NASHONGA	Second Appellant
MATEUS MATEUS	Third Appellant
and
MINISTER OF SAFETY AND SECURITY	First Respondent
PROSECUTOR-GENERAL	Second Respondent

Coram: MAINGA JA, ANGULA JA and SMUTS AJA

Heard: 11 April 2025

Delivered: 21 May 2025

Summary: This is an appeal against the dismissal of the three appellants’ claims for unlawful arrest and detention against the Minister of Safety and Security (the Minister) and malicious prosecution instituted against the Prosecutor-General.

The appellants were arrested on 19 November 2018 at around 04h00 at Mondesa, Swakopmund on a charge of housebreaking with intent to steal and theft. They were taken into custody and appeared in the Swakopmund Magistrates’ Court on 21 November 2018. Bail was declined by the presiding magistrate. At a subsequent appearance on 22 January 2019, the prosecution did not object to bail being granted to them and the appellants were released on bail. At a later appearance on 27 March 2019, the prosecutor withdrew the case against them. The arrests, subsequent detention, release and withdrawal of the cases against them were not in issue.

The appellants claimed that their arrests were without any reasonable grounds and unlawful. They each claimed N$1 500 000 in damages for their alleged unlawful arrest and detention.

In the claim for malicious prosecution, they alleged that the public prosecutor on 21 November 2018 wrongfully and maliciously set the law in motion by prosecuting them when there was no prima facie case against them. They alleged that the public prosecutor on that date, on perusal of the docket ‘had no reasonable or probable cause to believe in the truth of the information contained in the docket and to subsequently prosecute them. They alleged that had the prosecutor properly exercised his discretion, he would have realised that there was no prima facie case against them and would have withdrawn the case against them. The appellants each claimed N$500 000 in damages for malicious prosecution.

The court a quo found that the evidence established a reasonable suspicion on the part of the arresting officer. It further found that the police witnesses were materially steadfast in stating their versions and were credible. As regards the appellants, the court a quo found that the appellants on the other hand were evasive as witnesses.

After concluding that the claims for unlawful arrest had not been established, the court a quo found that it was not necessary to deal with the claims for malicious prosecution because once the arrests were lawful, the court reasoned that the prosecution could not have been malicious. The High Court proceeded to dismiss the appellants’ claims with costs.

On appeal to this Court, it was argued on behalf of the appellants that the court a quo erred in not finding the arrest was unlawful because the arresting officer conceded that the television set found in possession of the appellants was not the one stolen from the nearby complainant’s house. It was argued that ‘in no way or form can the misplaced belief of a suspicion be found to be reasonable’.

As regards the issue of malicious prosecution, the appellants argued that the court below erred in dismissing their claims for malicious prosecution because of that court’s holding that that consequence ‘flows naturally from the lawful arrest and detention’ and that the prosecution could not have been malicious for that reason.

Held that, the jurisdictional facts which must exist in order to lawfully invoke the power under s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act) are: (a) the arrest must be effected by a peace officer; (b) that peace officer must entertain a suspicion; and (c) that suspicion must be that the arrested person(s) committed an offence referred to in Schedule 1 to the Act (other than escaping from custody); and that suspicion must rest on reasonable grounds.

Held that, it was common cause that the arresting officer, Constable Dumeni (later Sergeant Dumeni), was a peace officer at the time of the arrest. It was also not in issue that the offence for which the appellants were arrested constituted an offence referred to in Schedule 1 of the Act. It was also correctly common cause between the parties that the question whether the arresting peace officer ‘reasonably suspects’ a person of having committed an offence within the ambit of s 40(1)(b) of the Act is objectively justiciable. The test is whether there were objectively viewed reasonable grounds for the arresting officer’s suspicion.

Held that, the version of the police officers, including the arresting officer, was unequivocal that, after responding to a call raising a complaint of housebreaking in the very early hours of a morning (at around 04h00) they came across two of the appellants hastily jumping into the car driven by the first appellant when the police vehicle approached them. Their evidence was also unequivocal and unchallenged that the appellants’ vehicle sped off and that they (the police officers) pursued it. The lights of the police vehicle were flashing, including the distinguishing blue lights. Despite this, the vehicle only pulled over when the police vehicle had caught up with it.

Held that, the evidence of the police officers was also to the effect that housebreaking implements were found in the appellants’ possession. The presence of those items was not disputed in cross-examination – only whether they were found on their person or in the car.

Held that, the arresting officer’s evidence that the second appellant was wanted in a number of unresolved criminal investigations was also not disputed in cross-examination.

Held that, despite not being cross-examined concerning the housebreaking implements found in their possession, the appellants were fully aware of the contents of all three police officers’ statements provided in advance of the trial. At their peril, they failed to address that crucial evidence.

Further held that, there was also evidence by the police officer that the shoe prints found in the vicinity matched the shoe prints of shoes worn by one of the appellants. This evidence on its own without elaboration may not be decisive but viewed against the totality of the evidence of the police officers can assist in establishing a reasonable suspicion on the part of the arresting officer.

Further held that, indeed, in viewing the totality of the evidence as a whole, including that of the appellants and their failure to explain adequately the possession of the television set and their conduct of a hasty retreat in the face of pursuit by the police vehicle and their failure to address their possession of housebreaking implements and the second appellant being investigated for other crimes, establishes a reasonable suspicion of the appellants having committed a Schedule 1 offence on the part of the arresting officer. The arrests of the appellants were accordingly not wrongful and unlawful.

Held that, the prosecutor was in possession of the statements of the police officers referred to in evidence when postponing the matter on 21 November 2018. Those statements clearly established a reasonable suspicion requiring further investigation. There was thus reasonable and probable cause to proceed on that basis on the part of the prosecutor at that stage. The appellants pleaded their claim on the basis that the prosecutor acted without reasonable or probable cause on 21 November 2018 when postponing the matter for further investigation. There was no basis to such a claim. Nor was there any basis to infer an improper motive and that animus iniuriandi had been established.

Accordingly, the appeal was dismissed with costs.

APPEAL JUDGMENT

SMUTS AJA (MAINGA JA and ANGULA JA concurring):

1. This is an appeal against the dismissal of the three appellants’ claims for unlawful arrest and detention against the first respondent (the Minister of Safety and Security) and their claims for malicious prosecution instituted against the second respondent (the Prosecutor-General).

The case as pleaded

2. The appellants were arrested on 19 November 2018 at around 04h00 at Mondesa, Swakopmund on a charge of housebreaking with intent to steal and theft. They were taken into custody and appeared in the Swakopmund Magistrates’ Court on 21 November 2018. Bail was declined by the presiding magistrate. At a subsequent appearance on 22 January 2019, the prosecution no longer objected to bail being granted to them and the appellants were released on bail. At a later appearance on 27 March 2019, the prosecutor withdrew the case against them. The arrests, subsequent detention, release and withdrawal of the cases against them are not in issue.

3. The appellants claimed that their arrests were without any reasonable grounds and unlawful for the reasons set out in their particulars of claim, as summarised by the court below:

‘[7] Plaintiffs allege that the unlawfulness of their arrest occurred because:

1. there was no prima facie case against them;

2. the arresting officer did not consider their rights in terms of Article[s] 5 and 7 of the Namibian Constitution;

3. they were arbitrarily and without good cause deprived of their freedom and;

4. that the arresting officer had no grounds to interfere with their constitutional right, in that:

1. they did not pose a risk to the community;

2. they would not have evaded their trial, (if any);

3. there were no grounds present to believe that they would harm themselves or any other person (members) of the public;

4. there was no urgency for their arrest;

5. the fact that they had a known and fixed address was not taken into consideration.

[8] The plaintiffs further allege that the arresting officer did not exercise his discretion or did not do so properly in that:

1. there was no obligation on him to arrest and detain the plaintiffs;

2. he did not consider alternative methods to bring the plaintiffs before the court to secure their release from detention; and

3. he did not exercise his discretion properly or bona fide.

[9] They also allege that the arresting officer did not arrest them to further investigate the matter, to prevent them for committing further offices, to protect them against themselves, or other members of the public and as such this rendered the arrest and subsequent detention unlawful.’

4. They each claimed N$1 500 000 in damages for their alleged unlawful arrest and detention.

5. In the claim for malicious prosecution, they allege that the public prosecutor on 21 November 2018 wrongfully and maliciously set the law in motion by prosecuting them when there was no prima facie case against them. They allege that the public prosecutor on that date, on perusal of the docket ‘had no reasonable or probable cause to believe in the truth of the information contained in the docket and to subsequently prosecute the appellants’. Had the prosecutor properly exercised his discretion, they allege that he would have realised that there was no prima facie case against them and would have withdrawn the case against them. The appellants each claimed N$500 000 in damages for malicious prosecution.

6. The Minister of Safety and Security (the Minister) and the Prosecutor-General defended the action. They admitted the arrests of the appellants but denied wrongfulness, pleading that the arrests were lawful, based upon a reasonable suspicion and reasonable and probable cause. They also denied that the prosecution was unlawful and malicious.

7. They pleaded that the prosecution was not persisted with and was withdrawn owing to the ‘lack of outstanding evidence as further investigations were pending’. They also denied that the appellants had suffered damages in the amounts claimed or at all.

8. In the course of judicial case management (JCM), the pre-trial order and the issues of law to be resolved during the trial included whether the arrest and detention of the appellants were lawful and whether the prosecution of the appellants was malicious.

The trial

9. The version of the appellants on the one hand and the police officers on the other diverged concerning the circumstances surrounding the arrest, as foreshadowed in the pleadings and witness statements filed in the course of JCM.

10. The appellants’ evidence was strikingly similar. The first appellant testified that he had travelled on the night of 18 November 2018 from Walvis Bay to Henties Bay in his cousin’s red Suzuki Sedan vehicle. He acknowledged he had a small flat screen television set in the boot of that car, but in evidence provided no reason for conveying it.

11. On his way back to Walvis Bay, the first appellant testified that he encountered the other two appellants who requested a lift to Walvis Bay which they confirmed. The first appellant stated that they climbed in and he proceeded but after some time noticed a vehicle flashing lights from behind. He stated that he did not stop and continued until that vehicle came closer and he noticed it was a police van. He then stopped and the police officers asked him to alight and searched the vehicle and found a flat screen television set in the boot.

12. The first appellant stated that he said in response to an enquiry by a police officer that it was his television. He was thereafter arrested.

13. The other appellants gave similar accounts.

14. Astonishingly, the cross-examination of each of the appellants was very limited and did not include putting the police versions to the appellants especially where it diverged from theirs concerning the circumstances of their apprehension, the immediately preceding events and what was found in their possession. But versions of the police witnesses were contained in detail in their witness statements (and to a lesser extent in the plea), filed in the course of JCM.

15. The three police officers involved in the arrest of the appellants each testified. They were, on the contrary, subjected to unduly lengthy, unnecessarily laborious and at times directionless cross-examination. Despite minor discrepancies which were not material, their versions were largely unshaken.

16. All three police witnesses testified unequivocally that as soon as they happened upon a stationary vehicle in the early hours (around 04h00) of 19 November 2018 after being called out for a complaint of housebreaking, two of the appellants (later transpiring to be second and third appellants) hurriedly jumped into the vehicle when the police vehicle entered that otherwise deserted street and the vehicle then sped off. They all testified that the police vehicle gave chase to the speeding vehicle with lights flashing. Two of the police officers testified that the blue lights on the police vehicle were also flashing whilst the third only made mention of flashing lights. The arresting officer, Sergeant Dumeni (who then had the rank of Constable), who drove the vehicle, said he also sounded the police vehicle’s siren.

17. One of the police officers, Const Guibeb testified that the blue lights were flashing but he had not referred to this in his statement which only mentioned that lights were flashing. He was adamant that this included the blue lights. His evidence was exemplary and was rightly accepted by the trial judge. When confronted in cross-examination with the arresting officers’ version that the siren was on, he could not recall that the siren was activated because, he said, he recalled the siren of that vehicle was prior to that evening not in working order.

18. All three police officers were for the most part undisturbed in cross-examination on their accounts of the exchange which ensued when the car driven by the first appellant came to a halt. The car was searched and a flat screen television set was found in the boot. The police officers enquired who it belonged to and they all testified that all three appellants failed to give any answer or explanation for its presence in the vehicle.

19. The evidence of the police officers was also to the effect that the speeding vehicle, driven by the first appellant, only came to a halt after the police vehicle drew parallel with that vehicle and then went in front of the appellants’ vehicle.

20. The police officers further testified that they then proceeded to a complainant’s home nearby where a break-in had occurred. A flat screen television had been stolen from that home. The complainant however stated that hers had a larger screen than the one found in the car. The police officers detected footprints leading from her home and followed those prints to the street in the vicinity where the appellants were first seen (with two of them outside the car and the first appellant in the driver’s seat). One of the police officers testified that the footprints found at the scene of the break-in matched the print of shoes worn by one of the appellants.

21. The evidence of the arresting officer that he recognised one of the appellants as a person who had run away from him on four other investigations involving housebreaking or similar matters was not challenged in cross-examination.

22. The evidence of the police officers was further that a tyre lever and screw drivers were also found in possession of the appellants and that tyre levers were utilised in break-ins to prise open doors and windows. That evidence was also not challenged in cross-examination. There was however some dispute as to whether these were found when the car was searched or later on the person of an appellant at the police station. This is however not material in the context of this case as it was not disputed that they were found in their possession and the frequent purpose of their use as implements for housebreaking.

23. No witness was called on behalf of the Prosecutor-General concerning the claims of malicious prosecution.

Approach of the High Court

24. The High Court set out the evidence of each witness in some detail and referred to respondents’ counsel’s ineffectual attempt to put the versions of the police witnesses to the appellants. The court referred to the test enunciated by this Court in Government of the Republic of Namibia v Ndjembo¹ to be undertaken in assessing whether there existed reasonable grounds to arrest a suspect.

25. The High Court proceeded to analyse the evidence, referring to the manner in which the police observed the appellants and then pursued the vehicle in which they travelled, finding a television set in the vehicle for which no explanation was given and finding housebreaking implements in their possession. The court found that the evidence established a reasonable suspicion on the part of the arresting officer. In doing so, the court found that the police witnesses were materially steadfast in stating their versions and were credible witnesses. The court found that the appellants on the other hand were evasive as witnesses.

26. After concluding that the claims for unlawful arrest had not been established, the court below found that it was not necessary to deal with the claims for malicious prosecution because once the arrests were lawful, the court reasoned that the prosecution could not have been malicious. The High Court proceeded to dismiss the appellants’ claims with costs.

Submissions on appeal

27. It was argued on behalf of the appellants that the High Court erred in not finding the arrest unlawful because the arresting officer conceded that the television set found in possession of the appellants was not the one stolen from the nearby complainant’s house. Counsel asserted that ‘in no way or form can the misplaced belief of a suspicion be found to be reasonable’.

28. Counsel also contended that the court below erred in finding that ‘at no stage during cross-examination did the appellants deal with the housebreaking implements claimed to have been found in their possession, asserting that this aspect was dealt with during cross-examination of Sgt Dumeni. No record reference is provided in the written argument, in support of this as required by the rules of this Court. This was but one of several fundamental non-compliances with the rules of this Court regarding written argument. When asked in oral argument to provide the record reference, the appellants’ counsel was unable to do so and stated that he was required to argue at short notice, given the unavailability of instructed counsel. Counsel was afforded the opportunity to do so in writing after the hearing but the record reference provided was not with reference to the appeal record filed of record, but with reference to the transcript prepared a quo. This is unacceptable and in conflict with rule 17. The page referred to was traced and in any event did not support the contention advanced by him.

29. Counsel also contended that the arrest was unlawful because the arresting officer was not aware of the fact that he has a ‘discretion to arrest or not to arrest and that the discretion lies with his superiors’. Again no record reference was provided in the written argument in support of this assertion.

30. Appellants’ counsel also argued that the court a quo failed to take into account the principles laid down in Small v Smith² that once a witness’ version is left unchallenged in cross-examination, the party calling that witness would usually be entitled to assume in the absence of notice to the contrary that the witness’ testimony is accepted as correct. Whilst that proposition remains valid in general terms, its application to this case is misplaced. The appellants’ representative went further and contended that there is thus only one version before the court. That is patently wrong and not supported by the dictum cited.

31. The statement in Small v Smith was in any event made long before the advent of JCM. It cannot have the same impact where statements of the witnesses to be called for the other side are provided in advance of the trial which contain emphatic statements to the contrary, as occurred in these proceedings. There is thus plainly notice to the contrary as envisaged by this dictum. Despite the inexplicable failure on the part of the respondents’ legal representative to properly cross-examine the appellants, they were clearly apprised in advance of the evidence to be given by the police witnesses concerning their pulling away at speed, the failure to heed the signification of the police vehicle for them to pull over and the implements for housebreaking found in their possession. In the context of JCM, it was incumbent upon them to address those aspects raised in the police witness statements at the end of their evidence-in-chief. The failure to do so was at their jeopardy. And it was compounded when the evidence of housebreaking implements was unchallenged in the lengthy and drawn out cross-examination of the police witnesses.

32. Counsel for the appellants contended that the respondents failed to discharge the onus to justify the appellants’ arrest and that the court below had erred in finding to the contrary.

33. Counsel contended that the court a quo erred by failing ‘to follow and apply two judgments’ in the Eastern Cape and Gauteng divisions of the South African High Court respectively. This contention was also contained in the appellants’ unacceptably unwieldy and rambling notice of appeal, which did not comply with rule 7 of the rules of this Court. Counsel was unable to explain how such an obligation rests upon the High Court of Namibia. This is unsurprising because there is no such obligation.

34. It was also argued by appellants’ counsel that the High Court erred in finding that it was not necessary for the court to deal with the malicious prosecution claim because it flowed naturally after finding that the arrest was lawful. Counsel submitted that the differences between the nature of the two claims necessitated the court to deal with the different elements of malicious prosecution which the High Court had failed to do and that this amounted to a misdirection.

35. Counsel for the respondents submitted that the evidence established that the appellants had implements of housebreaking in their possession and failed to give an account for their possession to the satisfaction of the police officers. It was further argued that the evidence also established that the police officers and in particular the arresting officer had a reasonable suspicion that the appellants were found in possession of a television set reasonably suspected to be stolen.

36. Counsel argued that the reasonable suspicion was based on the evidence which established that the police witnesses, in responding to a criminal complaint of housebreaking in the area in the early hours of the morning, saw two of the appellants hastily jumping into a vehicle driven off at speed by the other appellant. The vehicle failed to pull over after blue lights were flashing and after being compelled to stop, the vehicle was searched and revealed a television set in the boot of the car for which no satisfactory explanation could be given. Upon the totality of this evidence, respondents’ counsel argued that the arrest was lawful.

37. Counsel for the respondent conceded that the court a quo had not addressed the different elements for malicious prosecution but argued that those elements had not been established by the appellants. Counsel also correctly accepted that the period of 62 days before the appellants were granted bail was unduly long.

Were the arrests of the appellants lawful?

38. Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act) empowers a police officer to arrest without a warrant any person ‘whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from custody’.

39. The jurisdictional facts which must exist in order to lawfully invoke this power (of arrest) are the following:

1. the arrest must be effected by a peace officer;

2. that peace officer must entertain a suspicion;

3. that suspicion must be that the arrested person(s) committed an offence referred to in Schedule 1 to the Act (other than escaping from custody); and

4. that suspicion must rest on reasonable grounds.³

40. It was common cause that the arresting officer, Sgt Dumeni, was a peace officer at the time of the arrest. It was also not in issue that the offence for which the appellants were arrested constituted an offence referred to in Schedule 1 of the Act. It was also correctly common cause between the parties that the question whether the arresting peace officer ‘reasonably suspects’ a person of having committed an offence within the ambit of s 40(1)(b) of the Act is objectively justiciable.⁴ The test is whether there were objectively viewed reasonable grounds for the arresting officer’s suspicion.⁵

41. It is also well settled that an arrest is prima facie wrongful and unlawful and that it is for the ‘defendants’ to allege and prove the lawfulness of the arrest.⁶

42. The issue in dispute between the parties on this claim relates to whether the first respondent established a reasonable suspicion on the part of the arresting officer Const Dumeni.

43. In this context, this Court in Ndjembo⁷ adopted the definition of suspicion given by Lord Devlin in Shaaban Bin Hussein & others v Chong Fook Kam & another,⁸ cited with approval in Duncan:⁹

‘Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage.’

44. This Court also adopted Lord Devlin’s distinction between reasonable suspicion and prima facie proof to this effect:

‘Prima facie consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. . . . Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case.’¹⁰

45. This Court in Ndjembo further considered the meaning to be given to ‘reasonable suspicion’ in the following way:

‘Discussing the meaning of the phrase “reasonable suspicion”, the same court albeit with a different nomenclature in Powell NO & others v Van der Merwe & others and in the context of a discussion of the validity of a search warrant, endorsed the observations made by the judge a quo in that case that a reasonable suspicion “was an impression formed on the basis of diverse factors, including facts and pieces of information falling short of fact, such as allegations and rumours”. What is most relevant, so the court emphasised, is the total picture that emerges from the facts. It is indeed the allegations or rumours that must be verified through further investigations to establish a prima facie case, if any, which in turn would conclude the investigations.’¹¹

46. As was also stressed in Ndjembo,¹² the legislature contemplated that further investigation could lead either to the suspects’ release from detention or their prosecution on a criminal charge.

47. Turning to the facts of this matter, the court below correctly accepted the version of the police officers who corroborated each other in material respects in the face of lengthy and laborious cross-examination. The testimony of Const Guibeb was particularly impressive in its coherence and credibility. The deviations between their versions did not relate to material aspects.

48. The version of the police officers, including the arresting officer, was unequivocal that, after responding to a call raising a complaint of housebreaking in the very early hours of a morning (at around 04h00) the police officers came across two of the appellants hastily jumping into the car driven by the first appellant when the police vehicle approached them. Their evidence was also unequivocal and unchallenged that the appellants’ vehicle sped off and that they (the police officers) pursued it. The lights of the police vehicle were flashing, including the distinguishing blue lights. Despite this, the vehicle only pulled over when the police vehicle had caught up with it.

49. The police officers’ version was further that when the car was searched, a television set was found and no explanation at all was given as to its presence in that car.

50. Their evidence was also to the effect that housebreaking implements were found in the appellants’ possession. The presence of those items was not disputed in cross-examination – only whether found on their person or in the car.

51. The arresting officer’s evidence that the second appellant was wanted in a number of unresolved criminal investigations was also not disputed in cross-examination.

52. In the face of this unequivocal evidence, the first appellant fails to explain how and when and for what purpose the television found its way in the vehicle. This in the context of the car owner’s evidence that it was not in the vehicle earlier that evening. Even though the first appellant was inexplicably not cross-examined on this crucial evidence, his version remains unconvincing when considered against the version of the police officers of this failure to give an explanation.

53. Despite not being cross-examined concerning the housebreaking implements found in their possession, the appellants were fully aware of the contents of all three police officers’ witness statements provided in advance of the trial. At their peril, they failed to address that crucial evidence.

54. There was also the evidence of the police officer that the shoe prints found in the vicinity matched the shoe prints of shoes worn by one of the appellants. This evidence on its own without elaboration may not be decisive but viewed against the totality of the evidence of the police officers can assist in establishing a reasonable suspicion on the part of the arresting officer.

55. Indeed, in viewing the totality of the evidence, including that of the appellants and their failure to explain adequately the possession of the television set, their conduct of a hasty retreat in the face of pursuit by the police vehicle, their failure to address their possession of housebreaking implements and the second appellant being investigated for other crimes, establishes a reasonable suspicion of the appellants having committed a Schedule 1 offence on the part of the arresting officer.

56. The arrests of the appellants were accordingly not wrongful and unlawful. The appellants however also contended that the arrests were also unlawful by reason of the arresting officer not properly exercising his discretion in considering alternatives to arrest in order to secure their presence in court. This aspect was barely dealt with in evidence and it was ineptly put to Sgt Dumeni that he had not considered police bail when he did not have the power to grant it by virtue of his rank. The appellants however failed to discharge the onus upon them to establish the wrongfulness and unlawfulness on the part of the arresting officer in not exercising his discretion to consider alternatives to taking the appellants into custody.

57. It follows that the High Court cannot be faulted for dismissing the appellants’ claims for unlawful arrest.

The claims for malicious prosecution

58. The appellants argue that the court below erred in dismissing their claims for malicious prosecution because of that court’s approach that that consequence ‘flows naturally from the lawful arrest and detention’ and that the prosecution could not have been malicious for that reason.

59. Whilst the High Court failed to deal with the elements of the distinctly different delict of malicious prosecution and whilst a lawful arrest does not by itself exclude a malicious prosecution, the question is however whether the result (dismissal of the malicious prosecution claims) is correct and not whether the reasoning employed in reaching it is sound.

60. It is also to be noted that neither the Prosecutor-General nor the prosecutor in question gave evidence to explain the conduct in proceeding with and later withdrawing the prosecution.

61. The claim is however pleaded that the sole basis of wrongfulness and maliciousness was ‘setting the law in motion by prosecuting (the appellants) on 21 November 2018 in circumstances where there was no prima facie case against them’ at the stage of their first appearance on 21 November 2018.

62. The Chief Justice in Groenewald v Minister of Safety and Security & another¹³ recently summarised what is to be established to succeed in a delictual claim of malicious prosecution in the following way:

‘40. To succeed in a claim for malicious prosecution, the plaintiff must allege and prove the following elements: (a) the defendant had instituted or instigated the proceedings giving rise to the claim; (b) the defendant acted without reasonable and probable cause; (c) the defendant had been actuated by an improper motive or animus iniuriandi; (d) the proceedings giving rise to the claim terminated in the plaintiff’s favour, and (e) the plaintiff suffered damages.

41. The principle of reasonable and probable cause comprises both a subjective and objective element. The objective element denotes that the defendant must have had sufficient information on the basis of which a reasonable person could have inferred the commission by the defendant of the offence or crime charged. The subjective element requires that the defendant must have subjectively held an honest belief in the plaintiff’s guilt.

42. Delictual liability for malicious prosecution will not lie where there existed, objectively speaking, reasonable grounds for the prosecution and the defendant subjectively believed in the plaintiff’s guilt. When applying the objective and subjective tests, sight should not be lost of the distinction between facts required to establish the plaintiff’s actual guilt and those necessary to establish a reasonable bona fide belief in the plaintiff’s guilt. This is so because facts admissible to prove the bona fide belief in the plaintiff’s guilt would not be admissible to prove his or her actual guilt.’

63. The Chief Justice in Groenewald further explained the nature of the delict:

‘37. The delict of malicious prosecution is meant to provide relief to a plaintiff who suffered damages as a consequence of intentional and unlawful abuse of the judicial process. The underlying basis for the action is the factual allegation that the defendant abused the judicial process by setting the criminal law in motion against the plaintiff, out of malice and without reasonable and probable cause. As explained in Minister of Safety and Security v Makapa, it is generally recognised that the standard in a claim for malicious prosecution instituted against a prosecutorial authority is different from that applied in cases involving private parties.

38. In the context of a claim against a prosecutorial authority, such action targets the decision to initiate or continue with a criminal prosecution, which constitutes an after-the-fact challenge of the decision. Such challenge strikes at the very core of the constitutionally protected prosecutorial independence. As such, it has been held that, a stringent standard must be met before a finding of liability on the part of a public prosecutor is made. This onerous standard of proof places a heavy burden on the plaintiff to prove not only the absence of reasonable and probable cause, but also that there was no bona fide reason to bring or maintain the criminal proceedings.’

64. The Chief Justice stressed in Groenewald¹⁴ that the conduct of a prosecutor must be egregious to justify judicial intervention and that negligence or ineptitude would not suffice.

65. Even though no evidence was proffered by the prosecutor, the question arises as to whether the appellants discharged the onus on them to establish that the prosecutor acted without reasonable or probable cause when the appellants appeared in court on 21 November 2018 by seeking the postponement of the matter and that the prosecutor was actuated by an improper motive or animus iniuriandi by doing so.

66. In my view, the appellants failed to discharge that onus in respect of both these elements to the claim. Plainly, the prosecutor was in possession of the statements of the police officers referred to in evidence when postponing the matter on 21 November 2018. Those statements clearly established a reasonable suspicion requiring further investigation. There was thus reasonable and probable cause to proceed on that basis on the part of the prosecutor at that stage. The appellants pleaded their claim on the basis that the prosecutor acted without reasonable or probable cause on 21 November 2018 when postponing the matter for further investigation. There is no basis to such a claim. Nor is there any basis to infer an improper motive and that animus iniuriandi had been established.

67. When the further investigation did not justify the further prosecution, the charges were withdrawn against the appellants.

68. Whilst it is concerning to note the period of more than two months from the initial appearance to the granting of bail, the claims are directed at the prosecutor’s decision to put the law in motion against them on 21 November 2018 and not in respect of the subsequent steps in the course of the prosecution itself.

69. It follows that the claim for malicious prosecution fell to be dismissed albeit not on the terse basis for finding so by the court below without reference to elements of a claim of malicious prosecution. The appeal against that dismissal must also fail.

Costs

70. During the hearing of oral argument, the court enquired whether the appellants were recipients of legal aid under the Legal Aid Act 29 of 1990 as a cost order would not be made against them in that event on the basis of Minister of Safety and Security & others v Mahupelo.¹⁵ The question was raised because the appellants stated in their evidence that two of them were unemployed or partially employed. Their legal representative replied that they were not legally aided and that the ‘normal arrangement’ concerning fees applied to them, even though he had not been paid for any fees to date and would only be paid after the result of the appeal. This aspect may warrant investigation by the Law Society of Namibia in view of the current prohibition on contingency fees.

71. It follows that the usual rule regarding costs would apply and the successful party should receive a cost order.

Order

72. The following order is made:

The appeal is dismissed with costs.

______________________

SMUTS AJA

______________________

MAINGA JA

______________________

ANGULA JA

APPEARANCES APPELLANTS:	A Ellis Of Ellis Attorneys
RESPONDENTS:	J Ncube Of Government Attorneys