Court name
High Court
Case number
380 of 2006
Title

Ambondo v Minister of Home Affairs and Others (380 of 2006) [2012] NAHC 30 (17 February 2012);

Media neutral citation
[2012] NAHC 30
Coram
Namandje AJ













CASE
NO.: I 380/2006



(T
1931/2004)



IN
THE HIGH COURT OF NAMIBIA











In
the matter between:











TIVES
THEOPHILUS AMBONDO
….........................................................................PLAINTIFF











and











THE
MINISTER OF HOME AFFAIRS
….....................................................
FIRST
DEFENDANT



W/O
KAYO
….........................................................................................SECOND
DEFENDANT



W/O
CHARLES MATENGU SIMASIKU
….................................................
THIRD
DEFENDANT



W/O
JOHN NCHINDO
…........................................................................FOURTH
DEFENDANT



CONSTABLE
MINYOI
….............................................................................FIFTH
DEFENDANT















CORAM:
NAMANDJE AJ











Heard
on: 15 August 2011







Delivered
on: 17 February 2012


















INTERLOCUTORY
RULING














NAMANDJE,
AJ.:
[1] This is an application in terms of Rule 38(3) of the
Rules of the High Court brought by the Minister of Home Affairs cited
as the first defendant herein together with the second, third, fourth
and fifth defendants who are all members of the Namibian Police. The
plaintiff is Tives Theophilus Ambondo. The parties shall in this
judgment be referred to as in the main action. The plaintiff is
opposing the application.







[2]
The plaintiff, in the main action, claims the sum of N$200,000.00
plus interest thereon, jointly and severally against the defendants.
The plaintiff alleges that he was assaulted by members of the
Namibian Police acting within the course and scope of their
employment with the first defendant. The assault, it is alleged by
the plaintiff, occurred at Katima Mulilo Police Station. The
plaintiff claims that as a result of the assault he had to receive
medical treatment, was unable to work for three (3) months and he
suffered contumelia, pain, shock, discomfort and humiliation.







[3]
The defendants
inter
alia
plead
that at all relevant times the plaintiff was heavily intoxicated and
that the members of the Namibian Police were in a process of
arresting him on a number of charges
1
when
they had to use reasonable force to effect plaintiff’s arrest.
It is therefore clear
ex
facie
the
pleadings that while the defendants deny the wrongfulness of any
force used against the plaintiff they, to a certain extent, admit
that force was used against the plaintiff when he resisted a lawful
arrest. Crucial to the enquiry in the main action shall therefore be
the question as to whether or not the force used against the
plaintiff was reasonable and lawful and further whether or not the
force used against the plaintiff was the cause of the injuries
allegedly sustained by the plaintiff.







[4]
The trial initially proceeded during November 2010 and had to be
postponed for a further hearing from 2 – 12 August 2011 due to
time constraints. After hearing this application on 15 August 2011
the main action was postponed for a further hearing to 16 - 27 April
2012.







[5]
On 27 July 2011 before the continuation of the trial set for 2 August
2011 the defendants filed an application in terms of Rule 38(3) in
which they sought an order for the evidence of a certain Darius
Shikongo to be taken before a Commissioner of the court at Okahao.
Rule 38(3) of the Rules of the High Court provides as follows:







38(3)
A court may, on application on notice in any matter where it appears
convenient or necessary for the purposes of justice, make an order
for taking the evidence of a witness before or during the trial
before a commissioner of the court, and permit any party to any such
matter to use such deposition in evidence on such terms, if any, as
to it seems meet, and in particular may order that such evidence
shall be taken only after the close of pleadings or only after the
giving of discovery or the furnishing of any particulars in the
action
.”







[6]
The court has a discretion whether or not it should make an order for
taking of evidence on commission. In exercising its judicial
discretion in this respect the court is primarily enjoined to
consider whether the taking of evidence on commission is convenient
and necessary for the purposes of justice. This is a jurisdictional
fact before a court grants an application in terms of Rule 38(3) of
the Rules of the High Court.







[7]
The court, in addition, should make an assessment of all other
circumstances of the case such as the materiality of evidence, the
prospect of evidence sought to be adduced through the commission
being forthcoming, whether the party seeking the order to adduce the
evidence on commission acted with proper diligence in pursuing all
alternatives, is there evidence to support the inference that the
commission is being sought on
bona
fide
grounds
to advance a legitimate case or is there a reason to suspect that it
is a tactical stratagem designed to secure some unfair delay or some
illegitimate advantages for the plaintiff, how convenient and
expensive will the proposed hearing for the commission, what will be
the prejudice to the party seeking the commission if the application
is refused or prejudice to his adversary if the application is
granted and what will be the relative importance would been for the
trial court itself to see and hear the particular witness whose
evidence is sought to be adduced on commission.
2
Because
of the grounds for the decision I will arrive at, it would not be
necessary to consider the factors enumerated under this paragraph.







[8]
The deponent to the defendants’ founding affidavit is Mr
Jabulani Ncube who is acting as the legal practitioner of the
defendants. Apart from his founding affidavit there are no other
witnesses’ supporting affidavits in support of his allegations.
There are two confirmatory affidavits attached to the defendants’
replying affidavit, but such affidavits add no value to the
defendants’ case at all. The purpose of the application is
stated by Mr Ncube as being for the “
evidence
of witness Darius Shilongo
who
is
currently
confined to his sickbed and is on home base care in Okahao to be
adduced before a Commissioner of this court for purposes of trial
.
Mr Shikongo is said to be the defendants’ key witness as he was
with the plaintiff at the time of the alleged assault and he would
corroborate other defendants’ witnesses “
on
the mannerisms of the plaintiff on the date he was arrested by the
police
.







[9]
Attached to the defendants’ founding affidavit is a letter
dated 14 June 2011 in which it is recorded “
Darius
Shilongo has been discharged from hospital and was given six (6)
months, home based care
.3
It
is alleged in the said letter that the witness is unable to attend a
consultation with the defendants’ counsel on 20 June 2011 due
to his health condition. The defendants also produced a document
dated 27 April 2011 marked “
Sick
Leave Certificate
in
which it indicated that the witness was on sick leave from 29 April
2011 to 30 June 2011. Lastly the defendants produced another document
which
ex
facie
appears
to have emanated from Okahao Medical Clinic marked “
Medical
Certificate
in
which it is recorded that “
D
Shilongo has been seen/admitted by me for medical investigation and
treatment on 11 July 2011, he/she suffers from KS. For this reason he
is unfit for work from the 1
st
of
July 2011 to 1 August 2011
.







[10]
On the basis of the two documents purporting to be medical
certificates the defendants allege that the health condition of the
witness is the reason for his indisposition to appear and testify in
court. In my view, notwithstanding the interlocutory nature of this
application, in the absence of any supporting or confirmatory
affidavit from the authors of such two documents the statements
therein in relation to the nature and extent of the health condition
of the witness remain inadmissible hearsay evidence.
4
The
rule against admission of hearsay is, in my opinion, rarely relaxed
in interlocutory matters on condition that the deponent swears an
affidavit of information and belief and stating the source of
information. It is my view that the defendants in this matter did not
satisfy the above requirement.







[11]
The above statements concerning the witnesses’ condition
further amount to inadmissible evidence in as far as such were made
for the purposes of medically certifying that the witness is unable
to attend and testify in court due to his health condition. This is
because the defendants did not make requisite allegations on the
basis of which the authors of the two documents could be found to be
properly qualified to tender such medical opinion evidence. The mere
fact that a document appears to have emanated from a medical facility
or that the name appearing as that of the author is preceded by “DR
is insufficient in this respect. In any event even if I were prepared
to accept such medical records it is simply indicated that the
witness was not fit to be at work. That does not necessarily, without
further details properly tendered as evidence, mean that the witness
is unable to attend and testify in court.







[13]
Another problem with the plaintiff’s application is that the
subpoena that was issued out of the office of the Registrar at the
instance of the defendants’ legal practitioners for the witness
to appear in court was addressed to “the messenger or
his/her deputy or a member of the police
” as opposed to the
sheriff. The defendants did not produce proof of service or
non-service in any shape by and from the messenger, his deputy or a
member of the police to whom the subpoena was addressed. There is
also no explanation as to why the subpoena was not addressed to the
sheriff.







[14]
Having made the above findings, I am satisfied that the defendants
did not make out a case for this court to grant an application in
terms of Rule 38(3). Accordingly I make the following order:








  1. The
    defendants’ application in terms of Rule 38(3) is dismissed
    with costs.












___________________________



NAMANDJE,
AJ.


































































































ON
BEHALF OF THE PLAINTIFF:



T.
IPUMBU



















INSTRUCTED
BY:



TITUS
IPUMBU LEGAL PRACTITIONERS



























ON
BEHALF OF THE DEFENDANTS:



J.
NCUBE



















INSTRUCTED
BY:



GOVERNMENT
ATTORNEYS



















1Resisting
a lawful arrest, obstructing a Police Officer in the execution of
his duties, assaulting a Police Officer and pointing of a firearm.




2See
Fernandez v Fittinghof, 1993 (2) SA 704 at p 708 – 709.




3Ending
on 30 June 2011.




4Vulcan
Rubber Works (Pty) Ltd v South African Railway and Harbours, 1958
(3) SA 285 (A) at 296 F. Hearsay evidence is defined in the
following terms:







Oral
and written statements by persons who are not a party to the
proceedings or who are not witnesses in the proceedings, and who are
not called, cannot be tendered as evidence for the truth of what
those oral or written statements say
.”
S v Chanda, 2005 NR 398 at p 402 A-B.







See
also Mahamat v First National Bank of Namibia Ltd, 1995 NR 199 at
203 – 204.