Court name
High Court Main Division
Title

Khariseb v Ministry of Safety and Security (2) () [2020] NAHCMD 375 (25 August 2020);

Media neutral citation
[2020] NAHCMD 375
Case summary:

Delicts – Claim of Damages – Arising from alleged unlawful arrest (without a warrant) and detention – Plaintiff a convicted prisoner serving a jail sentence in the Windhoek Correctional Facility – Charged with a suspected offence of possession of drugs after suspicious objects were found on his body and in his rectum.

Headnote and holding:

The plaintiff is a sentenced prisoner serving a jail sentence in the Windhoek Correctional Facility. While being searched by officers of the facility, they found prohibited objects they suspected to be drugs. As a result, he was arrested without a warrant and detained for possession of drugs, namely cocaine. He was subsequently charged, but the charge against him was withdrawn by the prosecutor because the powder thought to be cocaine turned out to be white powder milk.

After the charge was withdrawn against him, the plaintiff sued the defendants for unlawful arrest and detention. However, the court after listening to the evidence presented by the plaintiff and the defendants, concluded and held that the officers of the Correctional Services and the Police are authorized by law to arrest any person who is committing an offence in their presence or whom they reasonably suspect to have committed an offence like possession of drugs, without a warrant and detain him or her.

Held: further that the plaintiff was not detained in another facility other than his cell room in unit 7 where he was kept for purposes of serving his sentence.

Held further: that the plaintiff has failed to discharge the onus of proof on a balance of probabilities required of him to succeed in his claim.

Held furthermore: that as the claim is for damages and is an illiquid claim, the plaintiff ought to have presented expert evidence to prove the quantum which he failed to provide.

 

NOT REPORTABLE

 

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case no:  HC-MD-CIV-ACT-DEL-2018/04502

 

In the matter between:

 

BERNADUS KHARISEB                                                                                   PLAINTIFF

 

 

and

 

 

THE MINISTRY OF SAFETY AND SECURITY                                      1ST DEFENDANT

 

SERGEANT GEIRISEB                                                                               2ND DEFENDANT

 

 

Neutral citation:          Khariseb v Ministry of Safety and Security (HC-MD-CIV-ACT-DEL-2018/04502) [2020] NAHCMD 375 (25 August 2020)

 

Coram:          Unengu, AJ

 

Heard:           06 – 07 & 16 June 2020

 

Delivered:     25 August 2020

 

 


ORDER


The claim is dismissed with costs


JUDGMENT


 

UNENGU, AJ

 

[1]        The plaintiff in the matter, Mr Bernadus Khariseb instituted an action for damages against the Minister of Safety and Security in his official capacity as a member of parliament and of the Government of the Republic of Namibia responsible for the Police, Safety and Security together with a certain Sergeant Geiriseb who is a member of the Namibian Police Force in Windhoek as the first and second defendant respectively.

 

[2]        The plaintiff in his particulars of claim alleged as the cause of action, that he was arrested, on or about the 4 February 2018 without a warrant and  unlawfully detained by the second defendant at the Windhoek Correctional Facility as a suspect for possession of drugs, namely cocaine.

 

[3]        Meanwhile, the defendants in the plea filed on their behalf, denied the allegations that he was unlawfully arrested and detained by the second defendant. The plaintiff was required to prove the allegations against them. It emerged during the trial that the plaintiff was a convicted prisoner serving a custodial sentence in the Windhoek Correctional facility where a routine body search was conducted on him by the officials of the Correctional Services. It is also the evidence that during this routine search, it was discovered that the plaintiff had suspicious objects inserted into his rectum which were later excreted by the plaintiff in the presence of one of the defendants’ witnesses. Other prohibited objects were also found on his body.

 

[4]        As the result of the excreted objects one thereof containing white powder with an inscription of cocaine on the plastic where the powder was wrapped in, the plaintiff was charged with the offence of possession of cocaine. The plaintiff, thereafter appeared before the Windhoek magistrate‘s court where the matter was postponed on various occasions awaiting the laboratory result. The result came and the report indicated that the white powder sent for examination was milk powder not cocaine as originally thought and on that account, the State withdrew the charge against the plaintiff.

 

[5]        The withdrawal of the charge was the spark that triggered the appetite of the plaintiff to sue the defendants. The defendants have opposed and are defending the claim as a whole.

 

[6]        At the trial, Mr Nanhapo appeared for the plaintiff while Ms Matsi from the Office of the Government Attorneys acted on behalf of both defendants. The plaintiff is the only witness who testified in his cause while the defendants called several officials of the facility as witnesses.

 

[7]        The plaintiff alleged amongst others that the arrest effected on him was wrongful, unlawful and was not justified under the circumstances based on the grounds that he did not commit any offence, in particular an offence contemplated in Schedule 1 of the Criminal Procedure Act No 51 of 1977, as amended, which warranted his arrest.

 

[8]        The Criminal Procedure Act, in Chapter 5 under s 39[1] provides as follows:

 

‘(1)       An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcefully confining his body.

(2)        The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

(3)        The effect of an arrest shall be that the person arrested shall be lawful custody and that he shall be detained in custody until he is lawfully released from custody.’

 

[9]        Meanwhile, s 40 of the CPA authorizes a peace officer to carry out an arrest without a warrant on any person who commits an offence in circumstances as provided for in sub-section(1)(a) to (p). In this matter, sub-section (1)(a) and (h) are relevant because the sub-sections allow a peace officer of both the Correctional Services and the Police Force to arrest without a warrant of arrest a person who commits an offence in his or her presence and who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence – producing drugs or possession or the possession or disposal of arms and ammunition.

 

[10]      The plaintiff is not denying that correctional officials are peace officers in terms of the law. The definition of peace officer in s 1 of the Criminal Procedure Act includes correctional officers as peace officers, therefore, have powers to arrest any person without a warrant of arrest as is in the present case. The same applies to Police officers in the Namibian Police Force. The only requirement for the arrest without a warrant is that the arrested person must have committed the offence in their presence or is reasonably suspected of committing or of having committed an offence stipulated in sub-section (1)(h).

 

[11]      It is the testimony of the defendants that the plaintiff was brought in from outside the facility. Before he could be allowed to go back to his cell room, he has to be searched for any prohibited items or objects which he might have hidden on or in his body. This is a routine check which is done with every inmate who was outside and is coming back into the facility.  The plaintiff knew very well that his body will be searched before he is allowed access to his cell room when coming in the facility from outside, they said.

 

[12]      During the search, the officers discovered on him three packets of soup, a cellphone charger concealed in his belt and a cigarette lighter. They said that the plaintiff was uneasy during the search and moved in an unusual manner. As a result, they suspected the plaintiff of hiding something in his rectum. To satisfy themselves and with permission from the acting head of the facility, they took the plaintiff for x-rays at the Katutura hospital where it was detected that he had two pellet like objects in his rectum.

 

[13]      It is further the testimony of the defendants that while still at the hospital, the plaintiff excreted one pellet containing tobacco which is a prohibited item into the facility. The other pellet was excreted later in the presence of an officer who was guarding him in the single cell he was kept alone for that purpose. According to the evidence, the last pellet excreted by the plaintiff was a see through white plastic paper which contained white powder. On the plastic, there was written the word cocaine. When the officers saw that, they informed the police attached to the drug law enforcement unit of the Police Force to whom they at a later stage handed over the plaintiff and the white plastic paper with its contents for forensic tests. A charge of possession of prohibited substance was opened against the plaintiff.

 

[14]      However, the laboratory result revealed that the white powder found in the plastic paper was milk powder not cocaine as previously suspected. Their suspicion was strengthened by the word cocaine written on the plastic where the powder was wrapped in. They also testified that from experience, inmates stick drugs in their rectums first followed by tobacco. This is done, according to them, to deceive the officials. That being the case, the charge against the plaintiff was withdrawn by the State.

 

[15]      The version of the plaintiff did not differ much from the version of the defendants, save for the fact that the plaintiff alleged that he informed the officers that the white powder was milk powder he got from the wardens in the facility. The defendants denied giving the plaintiff powder milk. It is further the evidence of the defendants that the objects found on the plaintiff were prohibited objects in the facility. They did not believe the explanation of the plaintiff about the white powder found in the plastic to be milk powder because milk is not a prohibited item in the facility which he could have just carried openly. They could not believe that it turned out to be milk powder and not cocaine the plaintiff had in his rectum.

 

[16]      In any event, the witnesses denied serving powder milk in the facility. They suspected something to have gone wrong while the white powder was in the custody and care of Sergeant Geiriseb the second defendant. Even though he is sued as the second defendant in the matter, Sergeant Geiriseb was unwilling and decided not to come to court to defend the claim against him. This is not only strange but very suspicious too indeed. The probability is high that someone, for whatever reasons, had tampered with the white powder before it was submitted for the forensic examination at the laboratory.

 

[17]      Mr Nanhapo submitted that the defendants’ failure to call the doctor who conducted an x-ray examination on the body of the plaintiff, is prejudicial to the defendants case. I do not think counsel is correct. The officers who took the plaintiff for the scan testified that they were present during the whole process of the scanning and saw with their own eyes on the machine photos of the two objects in the rectum of the plaintiff. So they presented real and direct evidence of what they saw with their own eyes. In my opinion, the doctor would have given the same evidence if called to testify.

 

[18]      The only remaining issues to be resolved by the court, in my opinion, are whether the officers required a warrant of arrest in the circumstances of this matter to arrest the plaintiff; secondly whether the plaintiff was unlawfully detained in the correctional facility and thirdly, whether their suspicion that the plaintiff had drugs in his possession and thus committed or was committing the offence of possession of drugs under s 2(b) of Act 41 of 1971, was reasonable.

 

[19]      The first requirement of arrest without a warrant whether required is answered in the negative. The law allows members of the Police and Correctional Services to arrest without a warrant any person who is committing an offence in their presence or suspected to have committed an offence. In casu, they suspected the plaintiff of committing an offence of possession of drugs in their presence because the plaintiff carried the objects on his body externally and in his rectum.

 

[20]      The second one as whether the plaintiff was unlawfully detained. The answer is to that is also negative because he was a convicted inmate serving a custodial sentence in the facility with a bed and beddings in unit 7. There was no change in Cell Units after he was arrested for this possession of drugs. He remained a sentenced prisoner serving his sentence as usual in his cell room at Unit 7.

 

[21]      The third aspect is whether their suspicion was reasonable in the circumstances of the matter they were faced with. The test of reasonableness is an objective one. It is the yardstick of the standard of a reasonable person in the position of the correctional and the Police officers who arrested him on suspicion of possession of drugs.

 

[22]      It is trite law that this reasonable person is not a person with Solomonic intelligence but an ordinary person in the street with normal intelligence. The question is what could an ordinary person in the position of these officials who arrested the plaintiff done after discovering prohibited objects on the body of the plaintiff?

 

[23]      In my opinion the ordinary person acting reasonably under the circumstances of the matter would not have acted differently from what the officers did. The answer therefore is yes, their suspicion was reasonable in the circumstances. An innocent person would not hide lawful things from the eyes of the authority to the extent of sticking some of them inside the rectum.

 

[24]      The version of the plaintiff can never be regarded as probable when tested against the facts of the matter. Even though the burden of proof on the plaintiff is not that high but namely, to prove his case on a balance of plausibility by telling the court a probable story. In this matter, the plaintiff has failed to discharge that burden and as such, the claim against the defendants cannot succeed.

 

[25]      Another problem the plaintiff has in the matter is that he probably forgot that he sued for damages and such claims are of an illiquid nature. Unlike in liquid claims, the plaintiff was required by law to set out damages in a manner which will enable the defendants to reasonably assess the quantum. It is also insufficient to claim relief for contumelia while the cause of the damages were cited as unlawful arrest and detention. The plaintiff had a duty to place before court evidence of an expert witness to assist the court on the formula used to compute the quantum. The quantum in the matter has not been properly proved.

 

[26]      In the result, I make the following order:

 

            The claim is dismissed with costs.

 

 

 

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

E P UNENGU

Acting Judge

 

APPEARANCES:

 

PLAINTIFF:               T Nanhapo

                                 Brockerhoff & Associates Legal Practitioners,

Windhoek

 

 

DEFENDANT:          F Matsi-Filipe

                                 Government – Officer of the Government Attorney,

Windhoek

 

 

 


[1] Act 51 of 1977, as amended (the CPA).