Court name
High Court Main Division
Case name
Iyambo v Minister of Safety and Security
Media neutral citation
[2013] NAHCMD 38
Judge
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 3121/2010








In the matter between:








HENOK IYAMBO
............................................................................................PLAINTIFF








and








MINISTER OF SAFETY AND
SECURITY ..................................................DEFENDANT








Neutral citation:
Iyambo v Minister of Safety and Security (I 3121/2010) [2013]
NAHCMD 38 (12 February 2013)








Coram: PARKER AJ



Heard: 29 –
30 January 2013



Delivered: 12
February 2013








Flynote: Delict –
Plaintiff’s action based on unlawful arrest and detention by
defendant’s Ministry’s police officials – Plaintiff
brought before a magistrate within 48 hours after arrest and
detention in compliance with the Namibian Constitution –
Defendant therefore conceding liability – Court asked to
determine quantum of damages only.








Flynote: Costs –
Plaintiff not having gained substantial success court departing from
rule of practice that costs follow the event.








Summary: Delict –
Plaintiff’s action based on unlawful arrest and detention by
defendant’s Ministry’s police officials – Plaintiff
brought before a magistrate four days after arrest and detention in
violation of Article 11(3) of the Namibian Constitution –
Defendant having admitted liability only question remaining being
quantum of damages – In assessment of damages court taking into
account circumstances surrounding arrest of plaintiff and treatment
of plaintiff by arresting police officials, period of unlawful
detention being four days, plaintiff’s loss of freedom of
movement and loss of esteem among members of the local community
where plaintiff worked as a primary school teacher and amount of
damages awarded recently by the court for unlawful arrest and
detention – Court in the result awarding damages of N$12 000,00
as against N$150 000,00 claimed by plaintiff.








Summary: Costs –
Party entitled to costs must have gained substantial success –
Substantial success measured according to the nature of relief
claimed and granted and whether claim sounding in money excessive and
grossly disproportionate to the amount granted – In instant
case court awarding damages for N$12 000,00 as against plaintiff’s
claim of N$150 000,00 – Grounds therefore exist to justify
departure from the general rule that costs follow the event –
Accordingly court making order that each party pays its own costs.










ORDER











  1. Judgment is for the
    plaintiff (in respect of Claim A) in the amount of N$12 000,00.










  1. There is no order as to
    costs.











JUDGMENT










PARKER AJ:








[1] The plaintiff instituted action
against the defendant and makes two distinct claims, namely Claim A
and Claim B. Claim A is for unlawful arrest and detention; and he
claims damages in the amount of N$150 000,00. Claim B is for the
plaintiff’s inability to report for work for more than 30 days;
as a result of which he was deemed to have been discharged from the
Public Service in virtue of s 24(5)(a) of the Public Service Act No.
13 of 1995; and he claims N$59 458,95 being lost remuneration.








[2] In the parties’ joint
proposed pre-trial order two issues are to be determined by the
court, namely (a) the lawfulness or otherwise of the arrest and
detention and (b) proof of quantum of damages. At the commencement of
the trial, Mr Ntinda, counsel for the plaintiff, informed the court
that the plaintiff was abandoning Claim B altogether. And as respects
Claim A; I understand both counsel, ie Mr Ntinda, for the plaintiff
and Mr Chibwana, for the defendant, to submit that the arrest and
detention of the plaintiff before he was brought before the learned
magistrate of the Magistrates’ Court, Tsumeb, on 14 September
2009 was unlawful, but the defendant persists in his defence that the
defendant is not liable for the continued detention of the plaintiff
after he had appeared in the Magistrates’ Court. That being the
case, the burden of the court is to determine two main issues, that
is: first, whether the defendant is liable for damages arising from
the unlawful arrest and detention of the plaintiff after 14 September
2009, that is, after he had appeared before the learned magistrate
and second, quantum of damages, that is for unlawful arrest and
detention and for whatever period.








[3] I now proceed to determine the
first issue. That the defendant was arrested and detained on
Thursday, 10 September 2009, by police officials of the defendant’s
Ministry and brought before the learned magistrate of the
Magistrates’ Court, Tsumeb, on 14 September 2009 are not
disputed. Furthermore, the defendant concedes, as intimated
previously that the arrest and detention up to the time the plaintiff
appeared before the learned magistrate was unlawful. That is the
submission of Mr Chibwana. Mr Ntinda argues contrariwise. It is Mr
Ntinda’s submission that since the original arrest and
detention were unlawful, they remained unlawful, albeit the plaintiff
was brought before a magistrate within 48 hours in compliance with
the 48-hour rule under Article 11(3) of the Namibian Constitution,
and the plaintiff’s case was then remanded by the learned
magistrate.








[4] It is ironic that the
counsel who made a similar argument and was rejected by the court in
the earlier case of Gabriel v Minister of Safety and Security
2010 (2) NR 648 practises from the same law firm as Mr Ntinda. In
Gabriel, after reviewing the authorities Muller J held, ‘When
the plaintiff was brought before the magistrate and his detention was
further ordered, the lawfulness, or not, of his arrest and previous
detention became irrelevant’. I think this dictum, with
respect, must be qualified. In my view the arrest and the original
detention will be irrelevant only if the plaintiff was brought before
a magistrate within 48 hours of his or her arrest within the meaning
of Article 11(3) of the Namibian Constitution and the magistrate then
extended the original detention beyond 48 hours, as happened in the
instant case. (See Sheehama v Minister of Safety and Security and
Others
2011 (1) NR 294.)








[5] In the instant case,
it is common cause between the parties that the defendant complied
with the 48-hour rule, and in the exercise of his judicial authority
given to him by Article 11(3) of the Namibian Constitution, the
learned magistrate extended the detention in custody of the plaintiff
beyond 48 hours. It cannot, therefore, by any stretch of legal
imagination be argued that the defendant (a member of the Executive)
is liable for the learned magistrate’s judicial exercise of
authority given to him by the Namibian Constitution. It follows that
Mr Ntinda’s argument that if the learned magistrate had been
informed by the Prosecutor that the arrest was unlawful, the learned
magistrate might not have extended the detention of the plaintiff
beyond 48 hours is neither here nor there. It must be remembered that
it is not the defendant’s police officials who prosecuted the
case in the proceedings in the magistrates’ court. The
prosecution was conducted by the Prosecutor under delegated authority
of the Prosecutor-General (see Article 88(2) of the Namibian
Constitution), and since the prosecuting authority is an independent
authority, the defendant’s officials cannot be held accountable
for what the Prosecutor did or did not do during the judicial
proceedings or, what is more, what the learned magistrate did in the
exercise of his judicial function. It must be remembered that when
the plaintiff appeared before the learned magistrate, he put up his
hand to indicate that he wanted to address the court, and he was
allowed to address the court. He then informed the court that he
wanted to be admitted to bail. The learned magistrate informed him
that he could seek legal representation and also bring a formal
application for bail. These exchanges between the plaintiff and the
learned magistrate were in the course of judicial proceedings and
over which the defendant had no control.








[6] For these reasons and
conclusions, I am impelled inevitably to hold that the defendant is
not liable for the learned magistrate extending the plaintiff’s
detention in custody beyond 48 hours when he appeared before him on
14 September 2009. Consequently, the first issue is decided in favour
of the defendant. I proceed to consider the second issue.








[7] The second issue
concerns quantum of damages for the unlawful arrest and detention of
the plaintiff from 10 to 14 September 2009, that is before he was
brought before the magistrate. The amount of damages I grant should
be related to the unlawful arrest and the period of days during which
the detention is unlawful. On my calculation, since the day of arrest
and detention was a Thursday, 10 September, the next court day on
which the plaintiff could have reasonably been brought to the
magistrate was Friday, 11 September. After that the next court day
was Monday, 14 September, that is, the date on which he was brought
to the magistrate. I find that it was not ‘reasonably possible’
for the defendant’s police officials to have brought the
plaintiff before the magistrate on 12 or 13 September 2009. On my
reckoning, it would seem the plaintiff was brought before a
magistrate within 48 hours of his arrest and detention. I find that
the arrest and detention were unlawful within the meaning of Article
11(2) of the Namibian Constitution because it is not clear on the
evidence that the police officials formally arrested the plaintiff
and informed him about the grounds of the arrest. He was merely
invited to accompany the police officials to the police station to
enable the police officials to check the plaintiff’s mobile
phone to see if he had phoned one Nande, whom the police were about
to arrest for an offence, in order to tip Nande off to run away. Upon
his arrival at Oshivelo police station, the plaintiff was placed in a
holding cell and brought before the magistrate on 14 September 2009.
I, therefore, accept Mr Chibwana’s concession that the period
of unlawful arrest and detention should be four days; and so the
amount of damages to be awarded ought to relate to four days.








[8] As regards the
assessment of damages for delictual conduct; relying on the Supreme
Court case of Trustco Group International v Shikongo 2010 (2)
NR 377 (SC) at 403H-404G, I take the view that the court ought to
take a comparative look at awards made by the court in similar cases;
of course, regard being had to factual differences and circumstances
of the commission of the wrongful act complained of.








[9] In the instant case,
I accept Mr Chibwana’s submission that on the plaintiff’s
own testimony, the circumstances surrounding the arrest of the
plaintiff, a teacher, at his school, Antoni Primary School, was not
violent or depraved. The two police officials who fetched him from
the school arrived in an unmarked police motor vehicle and the motor
vehicle did not bear police registration number plates. They got
permission from the Principal of the school before transporting the
plaintiff in the motor vehicle. The evidence of plaintiff is that the
cleaner who went to call him referred to the two police officials as
visitors, not police officials. The two police officials and the
plaintiff walked from where the Principal was to where the motor
vehicle was parked. Furthermore, from the plaintiff’s further
testimony, I think it is reasonable to say that the pupils who were
out and about the school would not conclude that their teacher (the
plaintiff) was being arrested, even though he boarded the back of the
pick-up motor vehicle with the police official in camouflage police
uniform as the other passenger in the back of the motor vehicle.








[10] It is also the
plaintiff’s further testimony that he was driven not straight
to the police station but through, first, a ‘cuca shop’
(ie. a bottle store) while still riding in the back of the motor
vehicle and from there to Sportsman Bar (at Cassablanca), a bottle
store-cum-restaurant. I do not think the onlookers at, and patrons
of, those public houses who saw the plaintiff concluded there and
then that the plaintiff was ‘a criminal’ – as the
plaintiff testified – simply because he was riding in a motor
vehicle with police officials. No evidence was placed before the
court to support the plaintiff’s contention. Furthermore, no
evidence was placed before the court to show what the living
conditions of the plaintiff were like when he was held in custody
during those four relevant days. I hasten to add that this is not put
forth to play down the serious nature of deprivation of a person’s
right to freedom of movement guaranteed to him or her by the Namibian
Constitution. It is merely to show the circumstances of the arrest
and detention of the plaintiff.








[11] Furthermore, the
plaintiff’s attempt to persuade the court to take into account
the fact that his children’s education fund benefit was lost as
a result of his detention in custody (I repeat; for four days) cannot
succeed; for, as Mr Chibwana submitted, this aspect is not pleaded by
the plaintiff in his particulars of claim.








[12] It must be
remembered that it became clear at the trial that the plaintiff’s
claim under Claim A are general damages for ‘loss of freedom’
and attendant psychological pain. In the exercise of my discretion as
to an appropriate amount of money to award as damages, I have taken
into account the following factors in addition to the aforementioned
circumstances surrounding the unlawful arrest and detention. I have
said more than once that the relevant period for which the defendant
is liable is four days. The plaintiff occupies an important and
respectable position in the local community among whom he works as a
teacher and counselor to pupils and fellow teachers. It is not
far-fetched to say that the unlawful arrest and detention lowered to
some extent the esteem in which the plaintiff was held by his
friends, pupils, colleagues and members of the local community.








[13] I have also kept in
my mind’s eye counsel of Chomba AJA in Trustco Group
International v Shikongo
loc. cit. that in the assessment of
damages it is useful to consider awards of damages recently made for
defamation. I note that the instant case is not about defamation, but
I see no good reason why the authority in Shikongo cannot
apply with equal force to other delictual claims.








[14] In this regard, I
have looked at Hoco v Mtekwana and Another 2010 (2) SACR 536
(ECP) where the court there granted judgment for R80 000,00 in favour
of the plaintiff. The plaintiff had been detained unlawfully for four
days that is, beyond 48 hours allowable under South African law (like
Namibia’s). Not much assistance can be derived from Hoco
because in that case the plaintiff was not brought before the court
within 48 hours of his arrest and detention, and the court held that
the plaintiff was transported ‘as a criminal’ in the
presence of his minor child; and he was exposed to squalor in the
prison where he was held. I have also considered Government of the
Republic of Namibia v Getachew
2008 (1) NR 1 (SC). Getachew
is unlike the present case; it is about a plaintiff arrested and kept
in custody under the Immigration Control Act 7 of 1993 who may be
detained under a warrant for a period of 14 days to enable the
immigration official concerned to investigate the arrestee’s
status. It also concerns failure by the immigration officials to
comply with Article 18 of the Namibian Constitution and also flouting
by the immigration officials of Article 8 of the Namibian
Constitution when they exposed the plaintiff to indignity during part
of his detention, particularly in Okahandja. Securiforce CC v
Ruiters
2012 (4) SA 252 (NCK) was also referred to me. There, the
court held that R90 000,00 for the unlawful arrest, detention and
malicious prosecution is not over the top. What is significant for my
present purposes is that Kgomo JP (Pakati AJ concurring) issues the
following telling caveat: ‘I must caution, though, that this
award must not be taken as a precedent’ (at para 42). Ruiters
is, therefore, also not of assistance. Besides, in the present case
malicious prosecution is not part of the plaintiff’s case.








[15] I have undertaken
some comparative analysis of the amount of damages awarded in those
cases, albeit bearing in mind – as I have observed previously –
that the facts and circumstances of those cases are very different
from those of the instant case.








[16] Keeping the
aforementioned authorities in my mental spectacle together with the
facts of, and circumstances in, this matter, I conclude that the
amount of N$150 000,00 is exceedingly over the top. In my opinion, an
award of damages of N$12 000,00 for unlawful arrest and detention for
four days (instead of N$150 000,00 for 52 days as pleaded by the
plaintiffs) is reasonable and fair.








[17] I pass to consider
the question of costs. It is Mr Ntinda’s submission that the
plaintiff should be awarded its costs. Mr Chibwana, on the other
hand, submitted that in the way the case has turned out, including
the concessions by counsel and abandonment of part of the plaintiff’s
claim, the court should make an order that each party pays its own
costs. Counsel’s submission makes a great deal of sense. By
abandoning its Claim B, the plaintiff effectively withdrew part of
its action. Furthermore, even though the plaintiff has been
successful in the action, he has not been successful substantially,
and so, therefore, costs should not follow the event. On this score
alone it is fair and reasonable that the plaintiff is not awarded
costs. (See Windhoek Tool Centre CC v Oruuano of Namibia and U P
Shekupe
Case No. I 1885/2011 (Unreported) at p 7.) Accordingly,
this is a proper case where it is fair and reasonable that each party
pays its own costs.








[18] In the result I make
the following order:









  1. Judgment is for the
    plaintiff (in respect of Claim A) in the amount of N$12 000,00.










  1. There is no order as to
    costs.



















----------------------------



C Parker



Acting Judge













APPEARANCES








PLAINTIFF : M Ntinda



Of Sisa Namandje &
Co. Inc., Windhoek













DEFENDANT: T Chibwana



Of Government Attorney,
Windhoek