Court name
High Court
Case number
HC-MD-CIV-ACT-DEL- 1549 of 2019
Case name
Hunibed v Prosecutor General
Media neutral citation
[2021] NAHC 165
Judge
Oosthuizen J

“ANNEXURE 11”

 

IN THE HIGH COURT OF NAMIBIA

Case Title:  JONATHAN HUNIBEB vs PROSECUTOR GENERAL: MARTHA IMALWA AND 2 OTHERS

Case No: 

HC-MD-CIV-ACT-DEL-2019/01549

 

Division of Court:

High Court, Main Division

Heard before:

Honourable Justice Herman Oosthuizen

Date of hearing:

22 February 2021

Delivered on:

08 April 2021

Neutral citation:  Hunibed v Prosecutor General (HC-MD-CIV-ACT-DEL-2019/01549) [2021] NAHCMD 165 (8 April 2021).

 

Result on merits:  Defendants successful with exception.

The order:

 

Having heard MR HUNIBEB (in person) and MS J. GAWISES, on behalf of the Defendant(s) and having read the papers filed of record for HC-MD-CIV-ACT-DEL-2019/01549:

 

IT IS ORDERED THAT:

 

1.         Plaintiff's action against the first defendant (Prosecutor General), has prescribed.

 

2.         Plaintiff's action against second and third defendants, has prescribed.

 

3.         Reasons shall be supplied during the week 12 to 16 April 2021.

 

4.         In the premises the exceptions concerning prescription succeeded.

 

5.         The matter is removed from the roll: Case Finalized.

 

Reasons for orders:

 

1.         Plaintiff is a sentenced offender serving time under the care of Correctional Services.

 

2.         First defendant is the Prosecutor General of Namibia.  Second defendant is the Minister of Safety and Security and third defendant is the Head of the Prison, Hardap, Mariental.

 

3.         Plaintiff instituted action against the defendants for malicious assault and prosecution which was wrong according to plaintiff.

 

4.         Plaintiff first pursue his claims under case number HC-MD-CIV-ACT-DEL-2018/01471, which he withdrew on 19 March 2019.

 

5.         He then re-instituted the present action on 8 April 2019.

 

6.         Plaintiff changed the year 2014 to 2017 in his present particulars of claim.

 

7.         Plaintiff however persisted with his allegations that subsequent to the incident that happened during ‟2017” in the Hardap Correctional Facility he took certain actions resulting in actions by officials in the Correctional Facility which in turn culminated in him reacting in a destructive way.  As a result he pleaded that he was charged with (1) malicious damage to property (and) (2) escaping from lawful custody on 14 September 2014.

 

8.         Plaintiff then pleaded that he was found guilty on malicious damage to property and not guilty on the escape charge on 16 April 2015.

 

9.         Annexure ‟K” to plaintiff's particulars of claim revealed that he was found not guilty and acquitted on Count 1, common law escaping and guilty on the first alternative to Count 1, malicious damage to property.  Annexure ‟K” is the Court Order of 16 April 2015.

 

10.       Defendants except to the particulars of claim on the basis that the allegations therein are vague and embarrassing and do not disclose a cause of action.

 

11.       Defendants raised several grounds.  The court shall not deal with all of them.

 

12.       Defendants raised prescription as one of their grounds and squarely raised the Prescription Act, 1969 and the Correctional Service Act, of 2012.

 

13.       The assault (if any) by Correctional Service members took place in August/September 2014.  The malicious prosecution according to plaintiff was then between September 2014 and 16 April 2015.

 

14.       Plaintiff's particulars of claim failed to distinguish and properly plead a claim against the first defendant for malicious prosecution and failed to distinguish and properly plead a claim against the second and third defendants for the assault.

 

15.       The court shall however deal with the claims as if it was properly pleaded (although it clearly was not).

 

16.       Sections 10 and 11 of the Prescription Act, Act 68 of 1969 required from plaintiff to institute action within 3 years after the cause of action arose.  Plaintiff clearly fell foul of these provisions.

 

17.       Section 133(3) and (4) of the Correctional Service Act, Act 9 of 2012 inter alia provide for a maximum period of one (1) year from the date of the act to the institution of action with notice in writing to the defendant at least one month before commencement of action.  Apart from the notice (which was not argued before me), plaintiff instituted the current action only during April 2019 (and the previous action during 2018).

 

18.       Plaintiff clearly instituted his action(s) outside the ambit of the provision in Section 133(3) of Act 9 of 2012.

 

19.       Plaintiff causes of action (if it was properly pleaded) prescribed against the Prosecutor General and against the second and third defendant (expired).

 

20.       Plaintiff on 3 September 2020 endeavoured to strike out a status report of defendants concerning the exceptions and to do so in terms of Rule 58(2).  Rule 58 is only applicable to pleadings (and affidavits) and not relevant or permissible in the circumstances.

 

 

Judge’s signature:

Note to the parties:

 

 

Counsel:

Plaintiff(s)

Defendant (s)

JONATHAN HUNIBEB (in person)

Hardap Correctional Facility

JANSELINE GAWISES

Government - Office of the Government Attorney 2nd floor Sanlam Centre Independence Avenue, Windhoek, Namibia