Court name
High Court
Case number
APPEAL 160 of 2011

Ganeb v Minister of Safety and Security and Another (APPEAL 160 of 2011) [2011] NAHC 262 (06 September 2011);

Media neutral citation
[2011] NAHC 262
Heathcote AJ

Has the computer age weakened the standard of legal practice

CASE NO.: A160/11


the matter between:







on: 02 JULY 2011

on: 06 SEPTEMBER 2011




In this matter prisoner !Ganeb (the Applicant), makes serious

[1.1] The applicant discloses in a
letter dated 16 March 2011, which was directed to the Discipline Unit
of the Namibian police that he was poisoned by an inmate on 17 March
2010, which led to his admission to the central hospital on 22 March
2010. The state medical doctor thereafter informed the applicant that
due to the food poison, the applicant’s chronic pancreatitis
was damaged. The applicant pleaded with the Discipline Unit to
investigate the matter but has not received any response to date.

[1.2] As a result of such condition,
the doctor prescribed certain types of food, which need to be taken
by him while in prison. In a letter dated 29 October 2010, permission
was granted to the applicant by the unit manager or correctional
supervisor to purchase some of the items, such as fruits or fruit
juice, cereal as well as biscuits, which request, according the
applicant, the deputy head of the prison and Prison Management

[1.3] The applicant further states
that the Prison Authorities breached the Regulations for the
Administration and Control of the Namibian Prison Service, published
in Gazette No 2643/2001;

Regulation 225 states:

subject to regulation
257, a prisoner must be provided with food which has an adequate
nutritional value according to a diet scale prescribed, which
consists of a reasonable variety and is all prepared and served’

Regulation 256 states:

a medical officer must
regularly inspect all uncooked and prepared food and must report to
the commissioner on the sufficiency and quality of the food and also
on the purity and adequacy of the water used for human consumption
and other domestic purposes’

[1.4] The applicant then cites a
current situation of an inmate, one Philipu Tsuhumba, who is
currently held at the prison clinic and not released on medical
grounds as prescribed by the doctor. The applicant is afraid that if
the prison officials do not release him on medical grounds, he may
die like other inmates, that died, according to applicant, before
they could be released on medical grounds.

[1.5] The applicant also states that
he, on Monday, 27 December 2010, was subjected to severe assault by
the same inmates who were responsible for his poisoning, as a result
of which a criminal case under CR 290/01/2011 was opened on 10
January 2011. The police statement to this affect has been attached.
Six months thereafter, the applicant states, nothing has been done,
to either charge the responsible inmates or to bring them before a

[2] The application suffers form
serious procedural defects. There is no basis on which the
allegations can be accepted as the truth on the papers before me. But
the court, as upper guardian of the Constitution and the Rule of Law,
may not simply close its eyes to such allegations.

[3] Voet, Book XLVIII, title 3,
Section 6 says:

Roman and Roman-Dutch law
as to humane treatment of prisoners. – Care should further be
taken that imprisonment which ought merely to serve the purposes of
detention while a criminal judicial proceeding is pending does not
degenerate into punishment. This is what would happen if prisoners
are treated by their guards in an ungentle and inhuman manner,
are cheated of food or are wasted by too confined or filthy custody
in a loathsome place
and as it were destroyed by prison.”

[4] In my view, convicted prisoners
are entitled to the same humane treatment.

[5] I am prepared in these
circumstances to grant the following order:

[5.1] Mrs. Linda Dumba-Chilcalu
together with Mrs. Toni Hancox of the Legal Assistance Centre, are
appointed as referees to compile a special dossier as envisaged in
section 17 of the High Court Act No 16 of 1990 (read with section 23
of the Supreme Court Act No 5 of 1990), and to file a report with the
Registrar of the High Court, in which report they must make their
findings known in relation to the following;

[5.1.1] Whether the prison authorities
comply and have complied (since June this year (2011)) with
Regulations 255, 256 and 257 published in Government Gazette number
2643 of 8 November 2001.

[5.1.2] Whether Mr. !Ganeb’s
allegation that he had to be released from prison during the period
10 January 2006 to February 2006 but was not, is correct, and if so,
what caused his continued detention during such period.

[5.1.3] Whether the prison authorities
are refusing to release prisoner Philipus Tsuhumba on medical grounds
as prescribed by a medical practitioner, and if so, on which basis
such refusal is taking place.

[5.1.4] Whether Mr. !Ganeb opened
criminal case CR 290/01/2011, and if so, whether the prison
authorities and the Namibian police are obstructing the investigation
of the matter.

[5.1.5] Whether the prison authorities
are refusing to comply with the Internal Memo dated 29 October 2010,
in terms of which Mr. !Ganeb was granted permission to purchase
fruits or fruit juice and biscuits or cereals, and if so, on what
basis such refusal is taking place.

[5.1.6] Whether it is necessary for
the prison authorities to make

non-smoking zones available to

[5.2] For purposes of compiling the
special dossier Mrs. Linda Dumba-Chilcalu together with Mrs. Toni
Hancox of the Legal Assistance Centre are granted leave to;

[5.2.1] enter the prison and prison
areas of the Windhoek prison, have access to the relevant documents,
make copies thereof, and to keep such copies in their possession;

[5.2.2] interview any prisoner, prison
official, medical practitioner, of which interviews record shall be
kept (which interviews and records shall be kept confidential, until
the dossier is released);

[5.2.3] have access and make copies of
all documents in the court file in this case (A 160/11);

[5.2.4] be permitted to sample any
foodstuffs for purposes of compiling the dossier.

[5.2.5] approach a judge in chambers,
to amplify the powers granted to them in terms of this order, if

[5.2.6] make recommendations in their
report as to which steps, if any, should be taken and which relief
the court should grant.

[6] After the dossier has been filed,
the Respondents shall be given an opportunity to respondent to the
dossier. The matter should then be enrolled before a judge to
consider the relief sought by applicant or any other relief as
recommended by the referees.

[6] The report should be completed by
20 November 2011.