Court name
High Court Main Division
Case number
HC-MD-CIV-ACT-DEL- 2299 of 2019
Title

Manja v Government of Republic of Namibia and Others (HC-MD-CIV-ACT-DEL- 2299 of 2019) [2021] NAHCMD 571 (07 December 2021);

Media neutral citation
[2021] NAHCMD 571
Case summary:

Delict – Action for damages – Based on bodily injuries, pain and suffering, emotional and psychological trauma –Emanating from an alleged assault perpetrated by members of the Namibian Defence Force (the NDF) – Question for determination, whether the plaintiff was assaulted by members of the NDF or not – Court invited to assess the applicability of the decision in Makhetha v Minister of Police Court finding that the plaintiff was assaulted – Identity of the assailants – Evidence not sufficient to prove on a balance of probabilities that plaintiff was assaulted by members of the NDF – Plaintiff’s claim dismissed

Headnote and holding:

The plaintiff instituted the action against the defendants over an alleged assault executed on him by members of the NDF. According to the plaintiff, the NDF members failed to protect him and assaulted him while they were in uniform and acting in the course and scope of their employment. After the assault, the NDF members jumped in NDF motor vehicles and left the scene. The plaintiff sustained injures, suffered pain and suffering and was bedridden for several days. The defendants denied the plaintiff’s claim and disputed the material parts which suggests that members of the NDF assaulted the plaintiff.   

 

Plaintiff led evidence, at the end of which, the defendants applied for absolution from the instance. The application was dismissed with costs. Thereafter, the defendants reciprocated by leading evidence of their own. Evidence was analysed in order to determine whether the plaintiff proved his claim or not. 

 

Held – It cannot be said that the failure to proffer a satisfactory explanation to the prima facie proof advanced by the plaintiff in support of his claim manifests into full proof of the claim. The failure to tender a satisfactory explanation to the plaintiff’s prima facie proof may, bearing in mind the burden of proof required, amount to sufficient proof of the claim, but not necessarily full proof. The failure to render a satisfactory explanation therefore does exclude all possible explanations to the claim but may be sufficient to elevate the prima facie evidence into satisfactory evidence, the basis on which a court may find in favour of the plaintiff. 

 

Held – It is settled law that where the evidence presented by the parties stands in total contrast, the court may consider the candour and demeanour of witness, self-contradiction, or contradiction with the evidence of other witnesses who are supposed to present the same version as him or her or contradict an established fact.

 

Held – The evidence led by the defendants tendered a satisfactory explanation against the claim that the plaintiff was assaulted by members of the NDF. It is found that the plaintiff failed to produce conclusive evidence that he was assaulted by members of the NDF.  The court accepts the version of the defendants to be probably true and rejects that of the plaintiff as being highly improbable and unreliable and dismiss the claim.

Coram
Sibeya J