Court name
Supreme Court
Case number
SA 20 of 2003
Case name
Dresselhaus Transport CC v Government of the Republic of Namibia
Media neutral citation
[2005] NASC 3











CASE NO. SA 20/2003


IN THE
SUPREME COURT OF NAMIBIA



In the matter between:






DRESSELHAUS
TRANSPORT CC APPELLANT











and











THE GOVERNMENT OF THE
REPUBLIC



OF NAMIBIA
RESPONDENT











CORAM: Strydom, A.C.J.,
O’Linn, A.J.A.



HEARD ON: 2004/04/22



DELIVERED ON: 2005/05/11



_______________________________________________________________



APPEAL JUDGMENT









O’LINN, A.J.A.: I
have divided this judgment into the following sections:



SECTION I: INTRODUCTORY
REMARKS



SECTION II: THE MAIN
ISSUES AS DEFINED IN THE PLEADINGS.



SECTION III: THE SPECIFIC
LEGAL DUTIES AND POWERS OF THE NAMIBIAN POLICE AS PROVIDED FOR IN THE
NAMIBIAN CONSTITUTION, THE POLICE ACT AND OTHER RELEVANT STATUTES.







SECTION IV: THE RELEVANT
FACTS IN ADDITION TO THOSE IN SECTION I WHICH WILL BE REGARDED AS
PROVED FOR THE PURPOSES OF THIS JUDGMENT, BECAUSE SUCH FACTS WERE
EITHER COMMON CAUSE, OR NOT SERIOUSLY DISPUTED IN THE VIVA VOCE
EVIDENCE IN THE COURT A QUO OR ARE JUSTIFIABLE INFERENCES
DRAWN FROM SUCH FACTS.



SECTION V: THE QUESTION
WHETHER THE NAMIBIAN POLICE FORCE AS AN INSTITUTION HAD A LEGAL DUTY
TOWARDS THE PLAINTIFF AND THE DEFENCES AND EXCUSES PUT FORWARD FOR
NOT FULFILLING THIS DUTY.



SECTION VI: WAS THE
STORMING AND LOOTING AND ENSUING LOSS FORSEEABLE AND PREVENTABLE.



SECTION VII: THE
ALLEGATION THAT SOME MEMBERS OF THE NAMIBIAN POLICE FORCE THEMSELVES
TOOK SOME CONTAINERS OF BEER FROM THE OVERTURNED VEHICLE OF THE
PLAINTIFF.



SECTION VIII: THE LAW OF
DELICT APPLICABLE IN THE CASE.



SECTION IX: CONCLUDING
REMARKS.







SECTION I: INTRODUCTORY
REMARKS
.



This is an appeal against a
judgment of Levy AJ in the High Court of Namibia wherein that Court
dismissed a claim by the appellant against the respondent for damages
with costs arising from the looting by members of the public of a
consignment of 3744 cases of beer belonging to South African
Breweries and transported by the appellant after appellant’s
vehicle had overturned on Monday the 21 August at approximately 05:00
at a four-way crossing on a public road at the outskirts of Tsumeb
when two tyres burst when the vehicle turned a corner.







Appellant Dresselhaus Transport
CC was cited as the plaintiff in the Court a quo and the
Government of the Republic of Namibia as the defendant.







Mr Corbett appeared for
Dresselhaus Transport in the court a quo as well as before us
and Mr Goba appeared for the Government.







I will hereinafter, for the sake
of convenience continue to refer to the parties as in the court a
quo. At the time the action was instituted, the plaintiff was
registered in Namibia as a close corporation, inter alia
conducting the business of transporting goods. Plaintiff bore the
risk for any loss sustained to the consignment and was insured
against such loss by its insurer, Mutual and Federal Insurance
Company. The latter Insurance Company in actual fact paid plaintiff
for the loss in accordance with an agreement between insurer and
insured pertaining thereto. The said insurer was thus entitled on
the principle of subrogation to sue the third party, in this case the
Government, in the name of the insured. The Court a quo found
that insofar as plaintiff was liable as the carrier for the loss or
damage of goods transported by it, it could claim damages for the
loss from the party responsible for such loss.







The question of locus standi
was not raised in the course of the appeal and nothing more need be
said about that issue in this judgment.







SECTION II: THE MAIN
ISSUES AS DEFINED IN THE PLEADINGS
:



The plaintiff’s case was set
out in its particulars of claim as amended. No further particulars
were requested on behalf of defendant and plaintiffs case thus
remained as in its particulars of claim, except for a change in a
minor respect during the trial relating to the damages, which was
reduced from N$163 725.12 to N$134 254.60.







Plaintiff similarly did not ask
for any further particulars to defendant’s plea and the pleaded
defence consequently remained as in the plea as amended in the course
of the trial. The basis of plaintiff’s cause of action against
defendant was set out in the said particulars as follows:







“5. Subsequent to this accident, members of the Police arrived and
took charge of the accident scene. Members of the public also
arrived on the scene and together with some members of the Namibian
Police themselves, and in the presence of the Namibian Police
wrongfully and unlawfully removed looted and/or stole the entire
consignment of beer.”









Plaintiff’s particulars further proceeded:






“6. Despite being under a legal duty to do so, the members of the
Namibia Police present at the scene of the accident failed or
neglected to prevent such members of the public and some members of
the Namibia Police themselves from removing, looting and/or stealing
the entire beer consignment.







7. The conduct of the members of the Namibian Police aforesaid
constituted a breach of their legal duty to prevent and/or protect
the beer consignment from being removed, looted and/or stolen by
members of the public and members of the said police themselves.







8. In and as a result of the said conduct of the members of the
Namibian Police, the Plaintiff has suffered damages in the sum of
N$163 725.12, being the value of the entire beer consignment. (This
amount was reduced in the course of the trial to N$134 254.60 in the
light of alleged expert testimony).






9. At all material times hereto, the said members of the Namibian
Police were acting within the course and scope of their employment
with the defendant….”





According to Mr Corbett, in argument before us, the
allegation that some members of the Namibian Police also “unlawfully
removed, looted and/or stole the consignment of beer was not pursued
in the light of the evidence at the trial
.” There however was
no formal amendment of the pleading in this regard in the course of
the trial in the Court a quo and it is not clear what Mr
Corbett meant by his remark. Be that as it may. What was clearly
not nullified by this statement was the evidence before Court that
some members of the police did take possession of some cases of beer
and placed it in a police vehicle at some stage. The circumstances
of this taking will be discussed further including and in conjunction
with the evidence that a member or members of the police standing at
the back of the stricken vehicle gave the crowd to understand that
the consignment was insured and that they could consequently take it.





The defendant pleaded as follows:





“5. Ad
paragraph 5
:



The defendant admits that details of the Namibian Police attended the
scene. The defendant further admits that members of the public also
arrived on the scene. Defendant avers that the police took all
necessary and reasonable steps to protect and secure the scene of the
accident but were overwhelmed by the large group of persons who
engaged in acts of public violence and looting at the scene. Save as
aforesaid, the Defendant denies each and every allegation therein
contained as if specifically traversed.






  1. Ad paragraph 6
    thereof







6.1 The defendant admits that the members of the Namibian police had
a duty to preserve the scene of the accident and to protect the motor
vehicle and the goods but that such duty ceased and the police were
relieved of such a duty when the plaintiff gave to its agent Rubicon
Security power and authority to arrange for all security measures at
the scene of the accident and when such written authority was
furnished to the Namibian police.









6.2 The defendant specifically avers that it was plaintiff itself
through Rubicon Security, its agent which prevented the police from
guarding and protecting the motor vehicle and the goods and by
further informing the police that Rubicon Security had been given
sole responsibility to provide security for the motor vehicle and/or
the property thereupon.







6.3 In spite of this members of the Namibian police took all
necessary and reasonable steps to protect the scene and property
thereupon but were overwhelmed by the large crowd of members of the
public which was present at the scene and which looted the
consignment. Save as aforesaid defendant denies each and every
allegation contained therein as if specifically traversed.”





The various allegations in the plea are in conflict
with each other and vague and embarrassing as a whole. A request for
further particulars would have been appropriate and an exception to
the plea would have had reasonable prospects of success. As
plaintiff’s legal representatives had failed to take these steps,
the Court a quo and this Court on appeal was faced with a
confusing, inconsistent and vague and embarrassing defence
throughout.





SECTION III: THE LEGAL DUTIES AND POWERS OF
ALL ORGANS OF GOVERNMENT AND OF THE NAMIBIAN POLICE AS PROVIDED IN
THE NAMIBIAN CONSTITUTION
, THE POLICE ACT AND OTHER RELEVANT
STATUTES
.





1. The Constitution:


The following provision of the Namibian Constitution
are directly relevant to this issue. Chapter 3 of the Namibian
Constitution provides for the recognition of certain fundamental
rights and freedoms, its protection and entrenchment.





In Article 16 it is provided:





“All persons shall have
the right in any part of Namibia to acquire, own and dispose of
all forms of immovable and movable property individually or in
association with others
….”





Article 5 provides for the duty to protect the
fundamental rights and freedoms. It reads:





“The
fundamental rights and freedoms enshrined in this Chapter shall be
respected and upheld by the Executive, Legislature and Judiciary and
all organs of Government and its agencies and where applicable
to them, by all natural and legal persons in Namibia and shall be
enforceable by the Courts in the manner hereinafter prescribed
.”
(My emphasis added).





It is obvious that the Namibian Police Force as an
institution, is an organ of Government and/or an agency of Government
and thus has the constitutional duty to respect and uphold these
fundamental rights, including the right to movable property, which
would include the vehicles of plaintiff and the vehicle of the firm
Family Choice and the consignment of 3744 cases of beer transported
by the plaintiff.





It is similarly obvious that the members of public
who gathered at the scene of the accident, had a similar duty to
respect and uphold such fundamental right. The Courts function and
duty to respect and uphold includes the specific powers set out in
sub-articles (3) and (4) of Article 25 as follows:






“(3) Subject to the provisions of this Constitution, the Court
referred to in Sub-Article (2) hereof shall have the power to make
all such orders as shall be necessary and appropriate to secure such
applicant the enjoyment of rights and freedoms conferred on them
under the provisions of this Constitution, should the Court came to
the conclusion that such rights or freedoms have been unlawfully
denied or violated, or that grounds exist for the protection of such
rights or freedoms by interdict.







  1. The
    power of the Court shall include the power to award monetary
    compensation in respect of any damage suffered by the aggrieved
    persons in consequence of such unlawful denial or violation of their
    fundamental rights and freedoms, where it considers such an award to
    be appropriate in the circumstances of particular cases.”










Article 115 provides:






“There shall be established by Act of Parliament a Namibian Police
Force with prescribed powers, duties and procedures in order to
secure the internal security of Namibia and to maintain
law and order.”





2. The Police Act 19 of 1990:


This Act has been enacted in compliance with Article
115 of the Namibian Constitution.





Section 13 of the Police Act provides:





The functions of the Force shall be –


(a) the preservation of the internal security of
Namibia;


(b) the maintenance of law and order;


(c) the investigation of any offence or alleged
offence;


(d) the prevention of crime; and


(e) the protection of life and property.





3. One of the specific duties to be performed by
traffic officers, who, by definition include a member of the Namibian
Police Force, is laid down in Section 14(1)(g) and (h) of the said
Road Traffic and Transport Act 22 of 1999 which provides:






(g) “In addition to any other powers, duties and functions as may
be conferred or imposed on a traffic officer by or under this Act; a
traffic officer may, subject to the provisions of this Act -regulate
and control traffic on any public road, and give such directions as,
in his or her opinion, may be necessary for the safe and efficient
regulation
of such traffic and, where he or she is of the opinion
that a driver of a motor vehicle is impeding the normal flow of
traffic on a public road, direct the driver to remove the vehicle
from such road or to follow a different route
with the
vehicle
. (My emphasis added)







(h) require of any person whom such officer reasonably suspects of
having committed an offence under this Act or of being able to give
evidence in regard to the commission or suspected commission of such
an offence, to furnish his or her name and address and give any other
particulars which are required for his or her identification or for
any process”









The Namibian Police Force not only has the above
legal duties, but the law provides adequate powers to enable the
police to execute their functions and duties and provisions severely
penalizing those who obstruct the police in the execution of their
duties such as those e.g. provided for in Section 15 of the Police
Amendment Act and Section 18(1) of the Road Traffic and Transport Act
22 of 1999.








SECTION IV:


THE RELEVANT FACTS IN ADDITION TO THOSE IN SECTION
I WHICH WILL BE REGARDED AS PROVED FOR THE PURPOSES OF THIS JUDGMENT,
BECAUSE SUCH FACTS WERE EITHER COMMON CAUSE OR NOT SERIOUSLY DISPUTED
IN THE VIVA VOCE EVIDENCE BEFORE THE COURT A QUO
,
OR JUSTIFIABLE INFERENCES DRAWN FROM SUCH FACTS.





1. Plaintiff’s vehicle
consisted of a mechanical horse and two trailers.






2. After the vehicle had overturned, it came to rest on its side in
the middle island of the road facing in the direction of Ondangwa
about 3 kilometres from the town of Tsumeb.







3. The load of 3744 cases of beer was secured on the bed of the
vehicle with plastic covers and straps. Although the vehicle fell on
its side and lay with the wheels on one side on the ground and the
wheels on the other side in the air, the aforesaid load remained
secure and none of the containers of beer or its contents appeared to
have been damaged by the fall.







4. The driver of plaintiff’s vehicle, Mr Griffiths, had sustained
some shock but no serious injuries.







4.1 The said driver had no assistant driver or other assistants
accompanying him before, during or in the course of he looting.







5. The Namibian police at Tsumeb were informed of the accident by
Griffiths and a police officer was stationed at the scene of the
accident at about 06:00 to secure the scene.





5.1 Later during the
morning more officers were deployed to the scene.






6. Mr Weakly, the managing director and co-owner of plaintiff,
requested Mr Oosthuizen, security manager of Rubicon, a security
company at Tsumeb, to attend to the scene of accident and report
back.







6.1 After Oosthuizen had reported to him and told him inter alia that
the Namibian police were on the scene and he had consulted with the
insurers, he instructed Oosthuizen to return to the scene to look
after the load as well as the vehicle. He also arranged with a
company referred to as “Family Choice” to send an interlink truck
with two trailers to the scene to load the consignment on their truck
and take it to its destination.







6.2 Oosthuizen, then proceeded to the scene with four (4) security
guards from his firm armed with “stoppers”, i.e shotguns which
are designed to fire rubber bullets and teargas. The stoppers were
loaded with rubber bullets but not teargas. Upon Oosthuizen’s
arrival he deployed his guards strategically around the fallen truck
while some police stood by. The police at that stage numbered about
eight police officers.







7. Meanwhile, a crowd was gathering at the scene with people arriving
as from approximately 08:00 on foot, in pick-ups and cars, apparently
mostly from the Nombsoub residential area in Tsumeb.








    1. Initially the crowd
      was peaceful.









    1. However, Oosthuizen
      observed that later in the morning the mood of the crowd became
      aggressive. By the time Inspector Munalisa of the Field Force
      arrived at the scene, Oosthuizen informed him that the crowd had
      indicated that “they had come to take the beer” and that there
      were certain instigators who were shouting.








(Unfortunately
when Oosthuizen was testifying about what was said by and in the
crowd, the Court ruled that it could not allow such evidence because
it was hearsay. This was clearly a misdirection because Oosthuizen
was testifying about the aggressive mood and criminal intention of
some members of the crowd and the nature of the incitement).








    1. Inspector Munalisa
      talked to the crowd and some of them even told him that they had
      come to take the load. When he asked them to move back, they
      refused and even booed him and laughed at him.









    1. Munalisa then called
      on his cellphone and/or walkie talkie for reinforcements from the
      Tsumeb Police Station.









    1. Chief Inspector
      Simeon, first testified that when Munalisa talked to him he said
      that the situation was under control, but later admitted that the
      crowd was of concern to Munalisa and that it was Munalisa’s
      opinion “that the crowd can storm the overturned truck to get the
      beer”.









    1. When Munalisa
      returned to the police station he also told Warrant Officer Jason,
      the second in command at the police station, that the number of
      cars and people were increasing at the scene and that the number of
      police she had previously sent, was insufficient. She reported
      what Munalisa had told her to Chief Inspector Simeon and arranged
      for all available off duty officers to report for duty and to go to
      the scene. She left for the scene together with Chief Inspector
      Simeon and about 10 Field Force members.









    1. Chief Inspector
      Simeon and his men mostly unarmed, but some may have been armed
      with pistols.









    1. There were batons,
      teargas and the equipment to use it, such as firearms that could
      fire teargas, live bullets and rubber bullets available at the
      Tsumeb Police Station, but were not taken to the scene.








8. At all relevant times the police at the scene and personnel at the
police station could easily communicate by cellphone or walkie-talkie
and police personnel and other persons could move to and from the
police station within a very short time.







9. Although the total manpower of the regular blue-uniformed
police at Tsumeb did not exceed 30, the strength of the Special Field
Force stationed in the Tsumeb area was not disclosed in the evidence.











9.1 It is a notorius fact that if additional manpower of regular
police and Field Force was required for an operation at Tsumeb
subsequent to the actual looting, those could at short notice have






been
drawn from northern towns such as Otjiwarongo, Grootfontein, Outjo,
Otavi and Ondangwa. Defence Force units were obviously also
available in this northern area if the immediately available manpower
at Tsumeb could not control a public violence situation.







9.2 At about 10:00 there were about 25 police persons at the scene
but by then the crowd had grown to approximately 800.







10 At 09:58am on the 21st Anton Müller,
the transport manager of plaintiff sent a fax to Rubicon Security
with the following “security instruction: “You are hereby given
instructions to arrange for all security measures at the scene
of accident near Tsumeb where a truck of the abovementioned company
is involved.”






10.1 According
to Mr Weakly, the managing director of plaintiff, the fax was sent by
his transport manager M
üller in
accordance with the policy to give written instructions to enable the
recipient to later claim payment for its services.





According
to Weakly, the intent was to help with the security at the scene.







10.2 After receipt of the faxed instruction by Oosthuizen, he showed
the fax to some of the police officers on the scene, notably Chief
Inspector Simeon, to explain Rubicon’s presence and function on the
scene. He also informed Simeon that arrangements have been made for
another truck to come and collect the load and to transport it to its
correct destination.







10.3 There is a dispute between the parties as to the exact content
of that explanation. Some of the police persons alleged that
Oosthuizen told them that Rubicon will take charge of all the
security and the police must “move over”, and leave the securing
and protecting of the vehicle and load exclusively to Rubicon
security.







The allegations made by police witnesses were vehemently denied
throughout by Oosthuizen.







10.4 It is not clear from the pleadings and the viva voce evidence
whether the police left the scene of accident at any stage and if
they did so, why they left and when they left.







According to defence counsel Goba, the police did withdraw from the
immediate scene of accident at some stage and from then on – only
controlled traffic.







11. The truck from the firm Family Choice arrived after 10:00, and
before 11:00, but the precise time was not established.







This vehicle was also equipped with a mechanical forklift to
facilitate the transporting of the load from the overturned truck to
the Family Choice truck.







12. The driver of the Family Choice truck slowly moved to a position
alongside the stricken truck whilst members of Rubicon moved in front
and asked members of the crowd to stand back to enable the truck to
accomplish its task of loading the load from the overturned truck
onto the Family Choice truck.







The people from the crowd standing in the path of the oncoming truck
actually gave way. It could be that this was done because those
people were scared of being injured. The truck managed to park
alongside plaintiff’s overturned truck without bumping against any
pedestrian or injuring any person or damaging any vehicle or other
property.







12.1 Once the Family Choice truck was in position and was on the
verge of beginning with the operation of loading from the overturned
truck onto the Family Choice truck, a person in the crowd jumped onto
the Family Choice truck armed with a knife and slashed open the
canvas and cut the straps holding the load secure, laying bare the
load and ready for grabbing.







Persons in the crowd shouted and some hurled stones at the trucks
and the members of the Rubicon Security and those attempting to
protect the vehicles and the load. In the course thereof one of the
stones hit Mr Lindholm, an employee of Family Choice, who was trying
to protect the cab of the Family Choice truck. Lindholm was hit at
the back of his head.







It caused an open wound and blood flowing from the wound onto his
back. He however did not withdraw. Warrant Officer Jason was also
bumped and pushed to the ground by the crowd storming the trucks but
was uninjured. No other person from Rubicon Security or the police
were injured.







Members of the crowd swarmed onto the vehicles, grabbed the cartons
of beer and each carried away as much as he or she could handle.
Some loaded their spoils on to vehicles, some onto bicycles and some
took as much as they could carry. Some vehicles returned to the
scene more than once to reload.







12.2 Initially members of Rubicon Security fired warning shots above
the crowd and even rubber bullets at the crowd. It is uncertain
whether or not any of the police had any firearms and had fired any
warning shots. The two Rubicon dogs and the warning shots did not
deter the mob.







12.3 When the stones were hurled and the safety of members of Rubicon
and the police were endangered, the members of Rubicon withdrew from
their positions around the trucks to positions in the vicinity. It
is unclear if the police withdrew and if so, when and why.







13. It took about ¾
of an hour for the mob to complete the looting, the removal from the
scene of accident of the whole of the consignment of beer of 3744
cases of beer valued after the accident at N$134 254.60.







14. It follows from the above facts, that the inciters and
perpetrators and participants in the action committed the very
serious crime of Public Violence, with Robbery, Theft and the
disturbance and violation of the public peace and order as elements.






Public
Violence is defined by the learned author Milton in South African
Criminal Law and Procedure as the unlawful and intentional commission
by a number of people acting in concert of acts of sufficiently
serious dimensions which are intended violently to disturb the public
peace or security or to invade the rights of others”. Under the
new Namibian Criminal Procedure Act 25 of 2004, the crime of robbery
in itself is so serious, that a sentence of life imprisonment without
parole or probation or remission of sentence can be imposed on a
person convicted of such crime in terms of Section 309 of that Act.







14.1 Members of the mob also contravened the following statutory
provisions and thus committed the following further serious criminal
offences:







(i) Section 83(1) of Road Traffic and Transport Act 1999:


No
person shall without consent of the owner or operator of a vehicle or
any other person lawfully in charge thereof, or without reasonable
cause






(c) in any way tamper with the machinery, accessories, or any part
of such vehicle






(d) enter
or get onto such vehicle
……….”







  1. Section83(3):







No person shall –







(a) without lawful excuse tamper with any vehicle or any of its
equipment or accessories,







(b) wilfully damage any vehicle or any of its equipment or
accessories, or


(c) throw
any object at any vehicle…….”





Section 106(2) provides
that any person convicted of an offence of contravening the above
sections, shall be liable to a fine not exceeding N$20.000 or to
imprisonment for a period not exceeding five (5) years or to both
such fine or imprisonment.





Insofar as the police
claim that Chief Inspector Munalisa did order the crowd to stand back
and they refused, Section 18(1) of the Road Traffic and Transport Act
22 of 1999 was contravened as well as Section 15 of the Police
Amendment Act 3 of 1999 providing for a punishment of a fine not
exceeding N$20 000 or for a period of imprisonment of 5 years or to
both such fine and imprisonment for –





“Any person who –


(a) resists
or wilfully hinders or obstructs a member in the execution of his or
her duty or functions, or a person assisting a member in the
execution of his or her duty or functions…”






15.1 The police did not perform the specific function as laid down
and/or implied by Section 14(1)(g) and (h) the Road Traffic and
Transport Act to timeously prevent an unduly large congregation of
people and vehicles/at the scene of accident. In particular they did
not:







  1. Cordon off the area of
    the accident with barrier strips.







  1. Direct the drivers not
    to stop at the scene and to follow a different route with their
    vehicles.








15.2. During the period of actual looting at the scene, the crowd
became progressively smaller as some of those who had taken or carted
away what they can, left the scene.







(i) For those on foot, it would have taken some time to carry their
spoils back to Tsumeb.







(ii) The persons who were part of the mob at the scene of accident,
were vulnerable to roadblocks on their way back to Tsumeb, no longer
being a mob and having the intimidating force of a violent mob. It
follows that it was now easier for the police to stop, search or at
least take down their names and addresses or arrest them and retrieve
the stolen goods or some of it and prosecute the criminals.






(iii) If that was too difficult, the culprits could have been traced
and arrested and the stolen goods retrieved during raids later that
afternoon or that night or even during the following days and nights.







(iv) When some of the culprits sold cases of beer the next day in the
streets of Tsumeb, action could have been taken against them but no
action was taken.







16. During the period of 45 minutes that the looting at the scene was
in process, Oosthuizen was able and did take down the numbers of
vehicles into which the stolen goods were loaded.







16.1 He reported to a police officer on the scene that a police
sergeant had taken some cartons of beer from the plaintiff’s
vehicle and placed it in the police vehicle which he pointed out and
the registration number of which, was included in his list of
registration numbers.







16.2 The list of registration numbers aforesaid was later in the week
handed to officers of the Tsumeb Police for their attention and
further investigations.







16.3 Although a police witness testified that a police sergeant was
also instructed to take down the number of the motor vehicles on to
which the beer was loaded and carted away, no such list was made
available to the Court.







17.1 According to police witnesses, although they could hear some
people inciting the crowd, they could not identify anyone and
consequently could not arrest any of the instigators and ringleaders.







17.2 There was no explanation why the person who jumped on the
vehicle with a knife and cut the canvas and straps and was thus an
obvious ringleader, was not identified and not acted against in any
manner at any stage.







17.3 The police also made no attempt at any stage to obtain the names
and addresses of some of the ringleaders or any other participants,
although some police witnesses testified that some people in the
crowd were known to them.







17.4 Apart from Chief Inspector Munalisa’s rebuffed effort to ask
the crowd to at one stage to move backwards, after which he returned
to the police station, no other identifiable step was taken to deter
the mob during the actual looting at the scene. In particular:






  1. The police did not use
    loud hailers to warn the mob not to persist. They did not use
    batons, rubber bullets or teargas to deter and/or disperse the crowd
    and/or to enable them to arrest and charge the culprits.







  1. The police at the
    scene were not even appropriately equipped and armed at the scene to
    use teargas and/or rubber bullets and/or batons to deter intended
    wrongdoers from committing serious crimes although such equipment
    was available at the police station within easy reach and there were
    sufficient early warning that the crowd was growing and increasingly
    aggressive and clearly indicated that they intended to take the
    consignment of beer for themselves.







17.5 No roadblocks were set up to intercept those looters on their
way back to Tsumeb.







17.6 No raids were launched in the hours, days and nights following
to identify, take the names and addresses and/or arrest and prosecute
the culprits and to retrieve any of the stolen goods.







17.7 It was alleged by witnesses for the Government and Mr Goba,
counsel for defendant, that a police docket was opened pursuant to a
report by Mr Oosthuizen, but no prosecution was ever instituted since
the date that the crimes were committed. No reason was given why
not.







17.8 No effort was made by the police to retrieve any of the stolen
goods from the thieves and none were recovered except the few cases
in possession of the police.







18. It is probable that there was no proper command and leadership
amongst the police at the scene and that this was one of the causes
of the police failure to take appropriate action. The most senior
person at the scene of accident was Chief Inspector Simeon of the
section of the police known as the Special Field Force (SFF) and who
are according to Mr Goba, “mainly responsible for policing
borders”. Chief Inspector Simeon was reluctant to admit that he
was the officer in charge at the time of the looting. He also
admitted that he had no training in crowd control and it remained
uncertain on his evidence whether he had any experience of
controlling mob and mob violence.






19. The
Namibian Police had failed -




    1. to maintain law and order;


    2. to investigate the serious crime of Public
      Violence, Robbery and Theft;


    3. to prevent crime;


    4. to protect property of the plaintiff;


    5. to respect and protect the fundamental rights
      of the plaintiff.







SECTION V: THE QUESTION WHETHER THE NAMIBIAN
POLICE AS AN INSTITUTION HAD A LEGAL DUTY TOWARDS THE PLAINTIFF
AND THE DEFENCES AND EXCUSES PUT FORWARD FOR NOT FULFILLING THIS
DUTY
.






  1. In the light of the legal duties provided for in
    the Namibian Constitution and the Police Act set out in SECTION
    III supra
    , it is obvious that the plaintiff is also a
    beneficiary of those legal duties, i.e. the plaintiff was also
    entitled to the benefit of the execution of all those duties and
    responsibilities placed on the Namibian Police as an institution and
    organ of Government and the State. The duties and responsibilities
    were not restricted and/or delegated to those policemen present at a
    particular scene of accident or scene of crime, but remained the
    responsibility of the Namibian Police Force as an institution and
    organ of Government and the State.







  1. It follows from the above that the aforesaid
    duties and responsibilities could not be delegated to private
    persons and institutions and that the Police Force cannot absolve
    itself from exercising those functions, duties and responsibilities.
    It follows further that no private person or institution can
    legally instruct and/or order the said Police Force or any number of
    police persons not to exercise the aforesaid functions and not to
    fulfil the duties and responsibilities provided for by the aforesaid
    laws. As a matter of fact, any attempt by such private person or
    institution to do so, will amount to the offence of obstructing the
    Police Force in the execution of its functions and duties.







  1. It follows that the defendant’s plea that
    although the Police Force initially had a legal duty “to preserve
    the scene and to protect the motor vehicle and goods, but that such
    duty ceased and the police were relieved of such a duty when the
    plaintiff gave to its agent Rubicon Security power and authority to
    arrange for all security measures at the scene of the accident and
    when such written authority was furnished to the Namibian Police,”
    such plea was from the outset fatally flawed and could not
    constitute a proper and legal defence, even if the factual
    allegations therein were assumed to be correct for the purposes of
    argument.






The patent absurdity of
this plea is obvious when one keeps in mind that property cannot be
secured and protected, if the internal security of Namibia is not
preserved; if law and order is not maintained; crimes and offences
such as those pertaining to the property in the instant case are not
prevented and/or investigated and the perpetrators not arrested and
prosecuted and the stolen goods not retrieved.





It seems that both the
defendant and its counsel, failed throughout to distinguish the case
of private and contractual security arrangements for the protection
of private property from the case where the police duties are laid
down by the Constitution and statute law.





It is also obvious that
the function and duty to protect property, includes the function and
duty to recover and retrieve stolen property, particularly those
stolen and robbed in the police presence in circumstances amounting
to rioting, mob violence and public violence.





It is shocking that once
the thieves had removed their loot from the scene of accident, the
Namibian Police washed their hands of the crime and allowed the
thieves and robbers to enjoy their spoils undeterred, unpunished and
in peace.






  1. The defendant’s further initial plea
    that it was plaintiff itself, through Rubicon Security its agent,
    which attempted to prevent the police from guarding and
    protecting the motor vehicle and the goods any further by informing
    the police that Rubicon Security had been given sole responsibility
    to provide security for the motor vehicle and/or the property
    thereupon, was similarly fatally flawed, even if the factual
    allegations of such attempt were regarded as correct for the purpose
    of the argument.







  1. When defendant amended its plea during the trial
    to allege that plaintiff through Rubicon not merely attempted
    to prevent the police from carrying out its aforesaid functions/and
    duties, but actually prevented the police from doing so, it
    made the bad original plea even worse and even less credible.






5.1 The
further allegation in paragraph 6.3 of the plea adds further
ambiguity to the already inconsistent and ambiguous plea by stating:





“In
spite of this, members of Namibian police took all necessary and
reasonable steps to protect the scene and property and to assist
Rubicon Security but were overwhelmed by the large crowd of people
which was present at the scene and which looted the consignment…”





The
allegation that Plaintiff, through Rubicon Security
prevented
the police from guarding and protecting the motor
vehicle and its load is in conflict with the allegation that the
police nevertheless took all necessary and reasonable steps to assist
Rubicon Security but were overwhelmed by the large crowd. The
questions arise –






  1. if the police were prevented by plaintiff
    and its agent
    , how could they still take all the necessary and
    reasonable steps to protect the scene and property.







  1. If plaintiff prevented the police and was
    thus the cause, how could it be alleged in the same breath that the
    police were overwhelmed by the large crowd, and that was then
    the cause of the police being unable to fulfil their functions and
    duties to protect the scene and property.






5.2 The
only mitigating factor in this absurd pleading and the attempt to
justify it at the trial, was that Mr Goba conceded in his argument on





appeal that “the duty
was however revived when the crowd stormed the truck and engaged in
stealing from it in the presence of the police.” This concession
was in line with the Court a quo’s finding on this point.





The
question then arises: What steps were taken by the police after
their duty revived?





Mr
Goba in his cross-examination of Oosthuizen put the “withdrawal”
as follows:






“At the stage when you showed the police officers the fax and they
made this decision to withdraw their officers to control traffic only
and leave you and your company to secure the truck and its load, the
crowd at that stage had not stormed the truck.”






The
evidence of Warrant Officer Jason was that when she was bowled over
by the rushing crowd, she was instructed by Chief Inspector Simeon to
go to the approaches to the scene with some other traffic officers
and control traffic.





As
Mr Corbett pointed out, Warrant Officer Jason and her colleagues were
now positioned with their backs towards the vehicles where the
looting was in progress and the adage of “hear no evil”, “see
no evil” and “speak no evil” was now applicable.





The Court a quo
held that the duty of the Police to protect the overturned vehicle
and the consignment was revived when the actual looting began.





If it is correct as
alleged by Police witnesses that the Police withdrew when Rubicon
allegedly took over the protection of the vehicle and consignment,
then the Police duty to protect such vehicle and consignment revived
as found by the Court a quo, when the looting began. The
defence that the Police took all reasonable and necessary steps must
also fail, if it is assumed, as alleged by them, that they withdrew
even before the actual looting began.





6. The
defendant, its witnesses and its counsel were unable throughout the
evidence and in argument to specify the so-called necessary and
reasonable steps they had taken. I have set out in SECTION (IV) the
steps they should have taken and had failed to take and there is no
need to repeat it.





7. It is clear from defendant's plea that defendant
and its counsel, as well as the


Court a quo in its
judgment, failed to appreciate the fact that the duty and function of
the police did not begin and end with the phase when the crowd rushed
towards the vehicles and allegedly overwhelmed the police, but
extended over the following related but distinct phases:





Phase I: The period
beginning with the taking of control of the scene of accident until
the beginning of the looting.





Phase II: The
period of about 45 minutes from the beginning of the looting at the
scene until the looting at the scene was complete.





Phase III: The
period during which the stolen goods were actually removed from the
scene and taken to the Tsumeb town and residential area and in some
cases, to other Namibian destinations.





Phase IV: The
period following upon such actual removals from the scene of accident
which continued for an indefinite period, within which the crime of
theft continued by virtue of the legal principle that “theft is a
continuing crime” – and a period within which the criminals who
had committed the grave crimes of Public Violence, Robbery and Theft,
had to be traced and prosecuted and efforts made to recover all, or
at least some of the stolen property of the plaintiff. Although an
effort was made to excuse the failure to take any effective steps at
the time of the actual storming and alleged overwhelming by the mob,
no real effort was made to explain and excuse the failure to take
reasonable steps during the preceding period or phase to prevent such
a situation developing and for not taking any reasonable steps in the
ensuing period or phases.





8. The
case for the defence was one of absurd and pathetic excuses and an
attempt to place the blame on Rubicon Security, alternatively on
unforeseen mob action which overwhelmed them.





How and why the police
allowed 80-100 cars to come and go at the scene of accident and to
stop and park within meters from the overturned vehicles, and how and
why they allowed up to a 800 people to also congregate in the
immediate vicinity, was not and could not be explained.





8.1 Mr
Goba’s argument that the people of Namibia have the fundamental
right of freedom of movement after Namibian independence and that
this had to be respected by the police, adds insult to injury and is
an absurdity not expected to be put forward in the highest Court in
Namibia by a representative of a noble and respected profession and
of the Government of Namibia.





This is obvious because
the fundamental freedom to “move freely throughout Namibia”
provided for in Article 21(1)(9) of the Namibian Constitution, is
subject to subarticle 21(2) and further obviously subject to the
fundamental rights of others and the functions and duties of the
police contained in the Police Act and specific provisions of the law
herein referred to ensure safety at a scene of accident.





Mr Goba even suggested
that the police was faced with the dilemma of choosing between
protecting beer and property and protecting the freedom of the people
and their right not to be killed or injured. Again the obvious
answer is that when the “people” disturb the public order and
commit heinous crimes such as theft on a massive scale, robbery, and
public violence, strong action becomes necessary to protect the
innocent against their deeds and to prevent the State and society
from sinking into a state of disorder, insecurity and criminality
where the criminal reigns.





8.2 It
remained unclear on the police evidence whether or not any of them
were at least armed with side arms (revolvers and pistols) at the
scene of accident. But at any event, on the assumption that they
had, it was said by Warrant Officer Jason that those in charge could
not order or allow these police colleagues who had side - arms to
fire even warning shots above the heads of the mob, because
“we were afraid that our colleagues may not be able to use live
bullets properly and they may have injured people at the scene
…”.





If
the police used force to deter the mob and prevent the serious
crimes, they would have been protected from liability for damages for
injuries to persons by well-known legal principles as set out in the
decision in Chetty v Minister of Police
1.
In that decision it was held that:






1. There must have been reasonable grounds for thinking that because
of the crowd’s behaviour there was such a danger, (commenced or
imminent) of injury to persons or damage to or destruction or loss of
property as to require police action.







Whether or not such a situation existed must be considered
objectively, the question being whether a reasonable man in the
position of the police would have believed that there was such a
danger.







2. The means used in an endeavour to restore order and avert such
danger, and resulting in one or more members of the crowd being
injured, were not excessive having regard to all the circumstances,
such as the nature and extent of the danger, the likelihood of
serious injury to persons, the value of the property threatened, etc.





8.3 Police
witnesses stated that they wished to arrest the agitators in the
crowd, but they could not identify them. But when an obvious
ringleader jumped on the Family Choice vehicle and the overturned
vehicle of plaintiff and slashed open the canvas and cut the straps
securing the load with a knife, the police on the scene must have
been able – if they were around and not asleep – to identify at
least this criminal – to attempt to deter him, and/or attempt to
arrest him at the time. But the dereliction of duty becomes even
more pronounced when one considers that in the days and years that
followed, the police failed to take any steps to bring this
particular criminal to justice for the heinous crimes committed by
him. This failure supports the inference that some members of the
police present at the scene tacitly approved of the looting.





8.4 Oosthuizen
gave the police a list of the numbers of vehicles that transported
stolen goods from the scene. They raised no excuse for not
immediately acting on this information. But then Chief Inspector
Simeon testified that he had given a police sergeant instruction at
the scene itself to take down the numbers of vehicles carrying the
loot. Mr Goba explained that the purpose of this instruction was
that “some of the thieves were from the Tsumeb community and could
be followed up later during further investigations.” Mr Goba also
stated that the police “observed and noted the features of the
perpetrators for a future investigation”. Now if this is so, the
police was in a position to act immediately after the crowd had
dispersed, against the owners of the said vehicles and to attempt to
recover the loot. But no action was ever taken and there was no
explanation for it.





8.5 When
a police officer was asked why no arrest was made at the scene of
accident, he replied that he did not want to risk injury to the
police.





This notwithstanding that
the Police Force as a professional force has certain very onerous
duties of protecting members of the society and inherent in such a
profession is that certain risks must be taken when duty calls. In
this case the police did not even attempt to make one arrest.
If they did and individuals in the mob obstructed them and assaulted
them, the police may have had a little more credibility for their
excuses put forward for not taking elementary, reasonable and
available steps.





8.6. The
excuse by the defendant relied on to prove that the police have been
prevented from doing their duty – is a socalled written authority
by officials of plaintiff to Rubicon Security contained in a faxed
message and also furnished to the Namibian Police, which read as
follows,





“You
are hereby given instructions to arrange for all security
measures at the scene of accident near Tsumeb where a truck of the
abovementioned company is involved”.





(i) In
my view the words – “to arrange for all security measures at the
scene of accident”, is a far cry from the allegation in paragraph
6.2 of the plea that: “It was plaintiff through Rubicon Security
its agent which prevented the police from guarding and protecting the
motor vehicle and the goods any further by ‘informing the police
that Rubicon Security had been given sole responsibility to
provide security for the motor vehicle and or property thereupon
”.





The words “to arrange for
all security measures” could mean and include: to report the
accident to the police; to inform them of any issue and circumstance
that they should know; to request the police to assist; to inform the
police that they will be on the scene to represent the plaintiff;
help the police to protect and secure the vehicles and load; arrange
for the load to be reloaded from the stricken truck onto a truck from
the firm “Family Choice” to be then taken by the “Family
Choice” truck to its intended destination.





(ii) To
supplement the shortcoming in the fax, for its defence, the defendant
and its counsel attempted in the evidence to take the allegation much
further by alleging that when Oosthuizen of Rubicon explained the fax
and their presence to Chief Inspector Simeon and Warrant Officer
Jason, he said that “Rubicon had been given sole responsibility
for the truck and its consignment by the plaintiff; that he had
arranged another truck to come and collect the goods and cart them
away and that the “police should move over’”, i.e remove
themselves to make place for the Rubicon personnel.





The defence witness Warrant
Officer Jason even testified that Oosthuizen said: “There is no
need for your police presence. Could you please take your people
back because the responsibility is on my shoulders
”.





(iii) When
Simeon was cross-examined and asked whether Oosthuizen had said
anything about the role of the police at the scene, Simeon answered
in the negative but later again changed his evidence.





(iv) Oosthuizen,
an experienced former policeman, vehemently denied the allegations
that he had told the police that he had sole responsibility and that
they must please leave. He said that he had explained to the police
that Rubicon Security was there to represent Dresselhaus Transport to
make the necessary security arrangements and to assist the police, to
arrange for the arrival of the “Family Choice” truck and ensure
that the consignment of beer is transferred from the overturned truck
to the Family Choice truck.





He said that his security
firm Rubicon Security had on previous occasions cooperated with the
police and that he and the firm had a good relationship with the
police. He referred to a previous incident in 1995 when he and his
firm cooperated with the police at a riot when a crowd was
successfully dispersed by inter alia using teargas at the
premises of the Tsumeb Corporation Mine at Tsumeb.





The police allegation and
that of Mr Goba appear to be grossly exaggerated and improbable. Why
would Oosthuizen with a few men and a great responsibility have the
audacity and stupidity to tell the police with all its available
manpower, facilities and resources and functions and duties provided
for by the Constitution, Police Act and other statutes, to “move
over”, “remove themselves from the scene” “leave
all
the security to his firm” etc, when he had told Chief
Inspector Munalisa when Munalisa arrived on the scene, that the crowd
was “aggressive” and has indicated that “they intend to take
the beer.”








(v) The
Court a quo did not make a credibility finding on this or any
other issue except for its commentary that:





“In
the witness box he gave the impression that he was resentful of the
police and not objective.”





No reference was made in the judgment to incidents
and parts of the evidence to support this observation. However, if
Oosthuizen was resentful, that would only have been the natural
reaction of any reasonable person in the circumstances and should not
affect his credibility. In my respectful view, the Court a quo also
misdirected itself in this regard.





8.6 The
excuse that the family choice truck drove straight at the crowd and
this angered the crowd and caused the eruption
.





This defence which was not raised by defendant in its
plea but raised by Mr Goba in his cross-examination and argument,
appears to be an act of desperation. The “Family Choice” truck
successfully moved into position alongside the overturned truck to
transfer the load from the overturned truck to the said Family Choice
truck. This manoevre was carried out without injuring any member of
the crowd.








The driver of the truck was merely executing his
contractual duty and did not interfere with any right of members of
the crowd. The alleged driving “straight at the crowd” was an
exaggeration by Mr Goba and no excuse for the mob’s behaviour.





Yes, members of the crowd may have been angry but
why? Is it not obvious that in view of their criminal intention to
loot the consignment of beer, they now realised if they don’t go
over to drastic action to do so, the opportunity would be lost
because of the imminent removal of the potential loot from the scene
of accident to a safer haven. They then used the opportunity given
by the scoundrel who cut the canvas and straps securing the load.





8.7 The
excuses for not using teargas





(i) The
facts and circumstances set out in this judgment of the progressive
development of a congregation of many motor vehicles and a large
crowd at a scene of accident on a public road and this crowd becoming
gradually unruly, aggressive and clearly indicating an intention to
loot property valued at N$160 000.00 which was secured on an
overturned truck, notwithstanding the presence of the police and
personnel of a security firm, justified in my respectful view the use
of teargas. It was unreasonable not to have prepared for the use of
teargas and not to use it.





In this regard evidence
was given by an expert witness such as Mr Oosthuizen, a former
policeman with long experience and Inspector Jason, who had
previously been part of the police and security company personnel who
together had used teargas successfully to disperse an illegal crowd
at TCL Mining Corporation at Tsumeb.





Mr Oosthuizen testified
that in his opinion the use of teargas was justified. The point was
also made that the use of teargas could not result in serious
injury”, that the scene of accident was in an open space where a
dispersing crowd would have the open veld to move into. There was
also no possibility of a stampede wherein people could be injured.





Even if
there could be argument about the stage when teargas should have been
used, it cannot be doubted that once the aggressive mood and criminal
intent of the crowd became clear, the use of teargas was justified.
This justification was strengthened where the gathering developed
into a violent mob committing Public Violence, Robbery and Theft on a
very serious scale. Failure to use teargas at this and subsequent
stages was in itself negligence. Obviously, there were several other
reasonable steps that could have been taken at the various stages as
indicated in this judgment and nothing said in this section about the
use of teargas, is meant to excuse the failure to have taken the
various steps discussed at the various stages or phases.






(ii) The learned judge a quo
held that “it was too late to leave the scene to fetch teargas or
rubber bullets and Mr Oosthuizen had clearly demonstrated that rubber
bullets and dogs would not deter the crowd.”





I
cannot agree with this argument, inter alia for the following
reasons:





One could not
expect two dogs to deter the crowd if the police force itself have
brought no dogs, were mostly unarmed, had no rubber bullets and no
gas, remained passive throughout and at no stage showed the crowd
that they are determined to take appropriate and drastic action if
the crowd attempted to take the consignment of beer. The learned
judge should have appreciated that the police, who are by the
Constitution and the Police Act mandated to maintain law and order,
preserve internal security, prevent crime, protect life and property
and investigate crime, would be in a better position to act
effectively and make an impression on the crowd.





The
argument that it was too late to fetch teargas:






The question then arises:







Why did they not fetch it
earlier e.g. when Chief Inspector Munalisa returned. Considering
that they could instantly communicate with the police station and
move to and from within minutes, why would they have had any
difficulty to equip some of their personnel at short notice with
teargas.






(iii) The learned judge said
that:







“the crowd consisted of men women and children and many of these
people were probably innocent! There is no justification for
contending that there was a common purpose amongst the members of the
crowd to steal beer.”







The judge on the next page of
his judgment said that the police was overwhelmed by irresistible
force
. The question then is if many in the crowd were innocent,
what and who in the crowd constituted “the irresistible force”?
There must have been a large number of the crowd who actively
participated if one considers that 3744 cartons of beer were carried
off and removed in about ¾ of an hour.





Surely
at least those who stormed towards the vehicles and had a criminal
intent, made up a large part of the crowd and all those who in any
way associated with those that stormed, robbed and stole the beer and
committed public violence, by their association with the others, were
a proper target for rubber bullets and teargas. If some of the crowd
were innocent, they had no reason to stay at the scene for hours and
to associate by their continued presence and even after warning shots
were fired, with those who were the agitators and the activists. If
in such a situation the police use rubber bullets and teargas, any so
called “innocent” civilians who suffers some discomfort, must
blame him or herself. If such a possibility should prevent the
Namibian police from using rubber bullets and teargas, there will be
no deterrent for mob violence, public disorder and crimes such as
robbery, theft and public violence.





I
regret with respect that I have to reject the argument put forward by
the learned presiding judge in the Court a quo also in this
respect.






(iv) Mr Goba’s written
submission before us that the Court a quo found that “the
use of teargas under such circumstances would have amounted to an
excessive use of force” is incorrect. The Court never made such a
finding as appears from my above quotation from the judgment.





SECTION
VI
: WAS THE STORMING AND LOOTING AND ENSUING LOSS FORSEEABLE
AND PREVENTABLE





1. The
point of departure for this discussion is that the Namibian Police
Force had in fact failed to execute its functions as laid down in the
Namibian Constitution and the Police Act as stated in paragraph 19 of
SECTION (IV) supra.





2. The Court a quo found:





“On
the evidence placed before me, I find that the Namibian Police had no
reasonable grounds for anticipating a riot and theft of beer.”





The Court a quo stated further that it was
neither foreseeable by Oosthuizen nor the police.





In my respectful view the Court a quo
misdirected itself in this regard.





2.1 In
dealing with the argument that the police should have foreseen the
eventuality of the crowd storming and looting, the learned presiding
judge however said at one stage:






“If Mr Oosthuizen with his credentials did not foresee this
eventuality and dispensed with police assistance
, there is no
reason why the police should have foreseen the sudden change in the
mood of the crowd. It ill-behoves Mr Oosthuizen, who
categorically rejected and scorned police help
, to cry ‘foul’”.








For this finding, the learned judge a quo did
not refer to and consider Oosthuizen’s vehement rejection of the
allegations made by some police officers that he had told them that
his firm had sole responsibility and that the police must move over
or even remove themselves from the scene. The learned judge also did
not analyse the probabilities mentioned above. A reading of
Oosthuizen’s evidence gives the impression that he was experienced,
knowledgeable, and clear and did not contradict himself on any issue.
I cannot say this from a reading of the evidence of State witnesses
such as Chief Inspector Simeon and Warrant Officer Jason who was a
Warrant Officer at the time of the incident but since then promoted
to the rank of “inspector”.





It seems that another witness on the plaintiff’s
side was also ignored. So e.g. there is no mention of the evidence
of Griffiths, the driver of the Dresselhaus vehicle, who said that
when Rubicon arrived on the scene they explained to him that they are
there to assist the police in securing the truck and its load.





In my respectful view the Court misdirected itself in
this regard.





2.2 The
Court ignored the uncontradicted evidence by Oosthuizen that the
crowd was aggressive and clearly indicated beforehand that they had
come to take the beer; that he told Chief Inspector Munalisa so when
he arrived on the scene; that Chief Inspector Munalisa then called
for reinforcements. This evidence was not contradicted by any
defence witness and was indeed common cause.





2.3 Chief
Inspector Simeon contradicted himself on many occasions. At one
stage he said that “the situation was under control”. Under
cross-examination Simeon conceded that the crowd was of concern to
Munalisa. On the question – “why would it be a matter of concern
if there were many people at the scene? What could the possible
consequences be? Simeon replied: “The people can storm the
overturned truck to get the beer. It was his opinion.” “So he
expressed an opinion at that stage before you left the police station
that he had a concern that the people could storm the truck and take
the beer is that correct? That’s correct My Lord.”





2.4 Inspector
Jason said in regard to her testimony that the public were insulting
and harassing the police:





Question: “You
said they were insulting and harassing you. What precisely were they
doing or saying?


“Answer: “Just
to say – ‘you fucking police’ – ‘daai bier is nie jou ma se
bier nie, is nie jou wat nie” that the type of words…-





Questions: “Were
they indicating why they were angry or aggressive?”


Answer: “No
according to them they are mentioning that that is not our mothers
beer, we must not control them and such type of words.”





Questions: “Can
I assume that they were angry because you were protecting the beer
and they wanted to take the beer – is that right”.


Answer: “I
think so.”





2.5 Chief
Inspector Munalisa was not called by the defendant as a witness. No
explanation was placed on record why not. In the absence of an
explanation the inference must be drawn that he could not support the
defence case.





3. The Court a quo nevertheless further
argued:





(i) “For
four hours, except for one or two persons, the crowd had not been
hostile or threatening….” This alleged fact was not a fact and
not supported by the evidence.





(ii) “Was
there reason to believe that a crowd of approximately 2000 average
Namibians, men women and children would suddenly be thieves?”





This was another misdirection by the Court a quo.





3.1 There
was no credible evidence that the crowd was 2000 at any stage. The
Court itself found that at the critical time there was about 800
people.





It must be obvious that many in the crowd that
congregated, were not standing there for hours out of curiosity to
see the overturned vehicle. And obviously they did not all stand
there for four hours. Nevertheless, the fact that the crowd was
gradually growing on a working day and a day when most children will
be at school, indicated that most of those who arrived, were not
there out of curiosity and certainly were not women and children.





Mr Goba was however nearer to the mark when he at one
stage ventured the following explanation:






“The crowd suddenly increases we don’t know why – presumably
somebody went spreading in the township – we don’t know.
---presumably words spreading in the township, there’s probably –
we’re going to have a feast today, there’s a truck fallen –
there’s a lot of beer and people start streaming, you know…”





Mr Goba’s presumption of the aforesaid probability,
makes sense. But if this was the probable cause of people moving to
the scene of the accident, it means that they had the intent to loot
the fallen truck and its load of beer to have a feast. It also
follows that those who went to the scene did not go out of curiosity,
but because they wanted to steal and thus they were not innocent
people exercising their freedom to move freely around in Namibia, but
intent on committing a serious crime or crimes because of their
thirst for free beer.







    1. Mr Goba further contended:








“With the passage of time the crowd which was mainly made up
of women and children and some males increased…”





Mr Goba here distorted the evidence. The pages of
the record referred to does not contain such evidence. No witness
testified to that effect that the crowd consisted mainly of
women and children. It seems that this distorted statement about
“mainly women and children” was put forward to justify the
argument that teargas or other violent means could not be used
because the crowd was mainly made up of women and children.





Later on, Mr Goba further embroidered on his
submission when he emphasized that there were “pregnant woman and
babies” in the crowd. Mr Goba however admitted at one stage:
“Among the crowd certain murmurs were heard demanding to be
allowed to take the beer
…” This supports the fact that the
demands were clear at an early stage – long before the actual
storming. But then Mr Goba continued: “…on the basis that it
was damaged, hence not of much value to the owners and insured
.”
This excuse again does not appear on the pages of the record and is
clearly an excuse offered by Mr Goba in mitigation of the mob’s
scandalous behaviour.





Mr Goba continued:






“The murmurs turned to shouts and insults by some
instigators among the crowd such that at a later stage Chief
Inspector Munalisa was booed when he addressed the crowd at about
10:00.”








There was not a crowd of about 2000 peaceful
Namibians who were peaceful for four hours and then suddenly erupted
into a violent and criminal mob, robbing, stealing and committing the
grave crime of public violence. There was rather a gradual build-up
to that stage which was clearly observable by the police and Rubicon
Security and was in fact observed.





3.4 The
storming and looting was foreseeable if not from the very beginning –
then at least from an earlier stage when much more effective steps
could have been taken to prevent it. But even if it could not have
been prevented in toto, the progressive build-up of a crowd
and vehicles at the scene could have and should have been prevented;
effective steps could have been taken to disperse the crowd at an
earlier stage or at least act against the perpetrators by arresting
and later prosecuting them and recovering all or most of the stolen
goods at a later stage – once the mob had dispersed. As previously
indicated, the Court a quo directed all its attention to the
stage when the crowd stormed the vehicles and the looting began, and
the question whether the storming and looting was foreseeable,
instead of focussing and evaluating the events during the various
phases or periods discussed in SECTION V, paragraph 7 supra.





Even if the storming and
initial looting was not foreseeable, then it was at any event
foreseeable that in the phases that followed, the culprits would go
free and the loot, the property obtained by the culprits by means of
theft, robbery and public violence, would be irretrievably lost to
its owners or those that legally acquired their rights, unless
effective and reasonable steps were taken by the police in terms of
the Constitution and the Police Act to prevent the loss
.





4. Was the loss preventable.





The Court also found that the police could not
prevent the loss because they were faced by “vis major” or
“irresistible force”. I with respect, cannot agree with this
finding in the light of the facts, circumstances and reasons set out
in the various sections of this judgment. Simply put, in my
respectful view, there was no irresistible force confronting the
Namibian Police at any stage.





Alternatively, the Police Force cannot shield behind
such an excuse when it failed to take effective and reasonable steps
beforehand to prevent such a situation to develop when there were
ominous signs of such an eventuality.





Furthermore, even if there developed an “irresistible
force” which applied at a particular moment or stage, that is no
excuse for not taking reasonable steps to arrest and prosecute the
criminals and to recover the property or part of it in the stages
immediately following when there was ample opportunity to do so. At
no stage did the police explain why they were unable to retrieve any
of the property during those stages or phases.





4.1 If
the Namibian police was hampered by lack of training or education or
scarcity of vehicles and equipment, or lack of leadership qualities,
or uncertainty about who was in charge at the scene of accident –
which became a scene of crime, such problems must be urgently
addressed, but does not afford a lawful excuse for the Namibian
Police as an institution, not to have properly executed their legal
functions and duties towards the plaintiff at the scene of accident
before, during and after the heinous crimes were committed.





SECTION VII: THE ALLEGATION THAT SOME
MEMBERS OF THE NAMIBIAN POLICE FORCE THEMSELVES INCITED THE CROWD AND
TOOK SOME OF THE CONTAINERS OF BEER FROM THE OVERTURNED VEHICLE OF
THE PLAINTIFF
.





This grave allegation that beer was taken by the
police from the vehicle itself was first made by Griffiths, the
driver of the overturned vehicle and later also by Oosthuizen of
Rubicon Security.





The allegation that policemen who were standing at
the back said that the stock was already insured and the people could
take it was made only by Oosthuizen in his evidence.





Griffiths specifically testified that he saw police
as well as people with company cars like that from Telecom off
loading
beers from the overturned truck after the canvas was cut
and the straps severed, and he saw the police take the boxes of beer
off, loaded by then and load it into a police vehicle with which he
was at some stage given a lift into town to get a tele-card.





Griffiths furthermore testified that he subsequently
saw and heard a traffic officer warning a regular police officer
“that you will be in trouble loading these beers on the police
van.”





Notwithstanding the clear allegation made by
plaintiff in its particulars of claim that the police took containers
of beer from the overturned vehicle and placed it on a police
vehicle, Mr Goba now commenced a confusing line of cross-examination.
He asked:





Question: “So if I put it that the beer that was
found on the police van was placed there by one of the gentlemen who
had been with you when the police first came…”


Answer: “I don’t believe it Your Worship.”





On further questions Griffiths explained that the
only persons with him after the accident were his nephews who came to
visit him at the scene of the accident and they were school children
– they don’t drink beer and they did not put cases of beer onto a
police vehicle.





Goba further put it to the witness that those cases
of beer were removed from the police van on the instructions of a
police officer. That was not contested.





The presiding judge then started putting a new
possible defence to the witness as follows:






“Now you testified that a policeman put cases of beer into a police
car. Sometimes the police take charge, look after damaged property
and put it into their vehicles to protect it. Is it possible that
this policeman who put it in his van in the car was putting it there
in order to protect it? Answer: “That I couldn’t say Your
Lordship.”





It should be observed that up to that stage Mr Goba
had not raised that defence at all.





Oosthuizen’s clear and
unambiguous evidence in this regard was as follows:






“You’ve testified the crowd was stealing the beer, did you see
any police person on the scene trying to prevent this happening?”
Answer: “Your Lordship, after we withdrew, I have seen that nobody
was rejected from taking the stock. As we moved to the back of the
car, (meant overturned vehicle) I saw a police officer jumped on
the truck and took, a sergeant jumped on the truck and make use of
the opportunity and take himself some beer
. From the police
that were standing at the back said that the stock was already
insured and the people can take it
. The beer that was taken
by a police officer was then put into what we call a Venture with
number POL 4468
. I went to Chief Inspector Ashipala who stood
with Chief Inspector Simeon. Chief Inspector Ashipala was dressed in
civilian clothes. I told him that the beer were loaded on a police
van. We then together went with him to the police van. I showed him
where the beer was hidden under a police uniform – a blue police
uniform. At that moment there were two police sergeants with one
female police. We moved back where Chief Inspector Simeon and
Inspector Ashipala was standing and discussing. Chief Inspector
Simeon informed Inspector Ashipala that he cannot send his officials
into the crowd with the fact that he’s afraid they will get injured
or hurt….”









On further questions Oosthuizen said that beer was
not removed from the police vehicle in his presence. On questions as
to why the beer was placed in the police vehicle in the first place
Oosthuizen said:






“What I can say is that people took things as I have said from the
truck for their own benefit. So the police even went on top of the
truck, get themselves the beer for themselves….”






“After I finished the discussion with Chief Inspector Simeon and
Inspector Ashipala, I personally took the task and go about writing
down all numbers and number plates of the private cars which were
loaded with this beer.”





In cross-examination Mr Goba put it to Oosthuizen
that:






“I am instructed that the driver of the motor vehicle which
overturned
, Mr Griffiths had been with another gentlemen on the
truck and towards the end of all the looting procedures this man
approached a police sergeant who was standing at this particular
police vehicle with his bags and this case of beer and requested the
police to give him a lift into town since he didn’t have transport
and he told the police, he was asked about the beer that he had with
him and he said that the beer had been damaged and was written off so
there was no problem with him taking the beer with him. Do you know
anything about that?”





Oosthuizen wanted clarification and asked: “Is it
the person with Mr Griffiths or Mr Griffiths himself?” Answer by
Goba: “The person with Mr Griffiths.” Answer by Oosthuizen: “I
don’t know such a person – My Lord.”





Goba now put to Oosthuizen a new and confusing
version quite different from that put to Griffiths. Question:






“Now Mr Oosthuizen – my instruction are and evidence will be led
in this regard if necessary, that in fact as the crowd was taking
the beer from the truck and placed on the ground and the police would
in the process attempt to take the beer and keep it themselves but
then other people in the crowd would came and take the beer from the
police as well. What do you say about that?”









Oosthuizen appears to have misunderstood what was now
put to him and answered: “………it is possible that the
beer was put down there by the police and it is possible that the
people grabbed it and walked away with it…”





What Oosthuizen answered was consistent with his
former testimony that a police person offloaded the beer from the
truck and was not an admission that the police may have taken beer
off loaded by members of the crowd and put by these members on
the ground, then taken by the police and then retaken by members of
the crowd.





What Goba here put to Oosthuizen is fundamentally
different from what was put to Griffiths. One wonders why, if “other
people in the crowd would come and take the beer from the police”
the said police could not at least have attempted to arrest such
people or resist such retaking.





And now at last, Mr Goba moved over to the line
previously suggested by the learned judge as a defence. Goba asked:






“Furthermore Mr Oosthuizen is it not possible that this beer
might have been placed in that police van in order to secure it?”
Answer: “My Lord if I do take things and I put it in a police
vehicle for security purposes then I would not cover it with police
jackets etc.”









It is noteworthy that Mr Goba continued with this
vague form of cross-examination asking about whether this or that is
possible, without once putting a firm proposition such as e.g.








“Chief
Inspector Mr X will testify that he would deny that the beer was
taken from the overturned vehicle! That it was taken from the ground
whereon members of the crowd had placed it. That they put it in a
police vehicle to secure it!”








The possibility suggested by Goba that the
boxes of beer was put in the police vehicle to protect it from the
looters is obviously also in direct conflict with his first effort
where he tried to place the blame on an alleged colleague of the
driver Griffiths who according to Goba, actually placed the beer in
the police vehicle.





In conclusion Mr Goba put another “possibility”
to Oosthuizen as follows:



“I just want to find out from you Mr Oosthuizen is it not
possible
that, in fact what you are telling the Court about this
beers is something that you heard from the driver of the motor
vehicle and not what you yourself
, personally saw?” Answer:
My Lord I have seen it personally with my own two eyes.”









Mr Goba later in his cross-examination stated that
Ashipala actually spoke to a sergeant about the beer in response to
the report made by Oosthuizen to him. It is necessary for me to
observe that the cross-examination by Mr Goba on this crucial issue
was a fishing expedition and did not constitute proper
cross-examination. There was also no proper rebuttal by the
witnesses later called by the defence.





It is also important to note that Mr Goba did not
take issue with Oosthuizen on his other grave allegation to the
effect that some policemen standing at the back of the truck even
justified a taking by the public on the ground “that the stock was
already insured and the people can take it.” Not only was no
member of the public prosecuted but no police person was prosecuted,
notwithstanding the complaint.





In the circumstances the evidence by Griffiths and
Oosthuizen were not properly contested and should have been
considered and accepted by the Court a quo.





According to the Court a quo, Inspector Jason
testified that she saw members of the police remove cases of beer
from members of the crowd. “While there is no evidence to link
these cases to the cases of beer Mr Oosthuizen saw the police put





into a police vehicle, he in any event demanded that
the beer be removed from the police vehicle. If these cases of beer
had been taken into police custody, where were these cases to be put
if they were not to be put into a police vehicle? Members of the
crowd swarmed over the trailers and it appears as if a police vehicle
would have been a good place to put such cases.”





The learned judge a quo here failed to make
any finding as he should have done on the uncontested evidence of
Oosthuizen and Griffiths, about cases of beer removed from the
overturned vehicle by certain police persons and placed in a police
vehicle. The Court also failed to make a finding on whether or not
the cases of beer allegedly taken by the police from members of the
crowd, were in fact so taken. According to Mr Goba in his
cross-examination, cases of beer taken by the police from members of
the crowd, were retaken by the crowd from the police. If that
is so the beer so taken from the crowd and retaken by members of the
crowd could not be an explanation of the containers of beer seen in
the police vehicle.





A finding by the Court whether or not such cases were
taken by the police from members of the public and placed by the
police in the police vehicle, would have been relevant and even
necessary in view of the serious implications of the issue. But
instead the Court again goes no further than again speculating on the
issue as the Court had done when it first speculated in the course of
cross-examination by Mr Goba on such a possible defence. The Court
now says: “If these cases of beer had been taken into
custody, where were these cases to be put in a police vehicle?” In
so speculating, the Court failed to consider and make a finding or at
least comment on the other conflicting versions put forward by Mr
Goba in his cross-examination.





The Court a quo also wrongly failed to
consider and make a finding as it should have done on Oosthuizen’s
uncontested and uncontradicted evidence about police persons standing
at the back of the truck who justified the looting by saying that
“the stock was already insured and the people can take it”. It
is also clear from the above that the Court wrongly failed to
consider the impact of these acts of commission on the outcome of the
case.





The aforesaid evidence is important, because if
accepted, it would have helped to explain the inaction of the police,
except for the effort of Chief Inspector Munalisa, before he also
left the scene.





It stands to reason that such conduct by some
policemen would have given those in the crowd with criminal intent
the impression that the police was with them and that they had
nothing to fear from the police if they loot the property.





The said evidence would also mean that there were not
only acts of omission by the police, but acts of commission, which
are presumed to be unlawful.








SECTION
VIII
: THE LAW OF DELICT APPLICABLE IN THIS CASE.





In
view of the fact that there does not seem to be any serious
disagreement between counsel for the parties, I need not and do not
intend to extend this already long judgment unduly.





In
Minister of Police v Ewels
2
it was held that a negligent omission will be regarded as unlawful
conduct when the circumstances of the case are of such a nature that
the omission evokes not only moral indignation, but that the ‘legal
convictions of the community’ require that it should be regarded as
unlawful. The Court in Ewels had no hesitation in pronouncing that a
legal duty existed and rested on police members who refrained from
protecting Ewels when assaulted at the police station. In arriving
at its conclusion the Court took into account –





(i) the
statutory duties of the police;


(ii) the
fact that the assault took place on the premises of the police
station;



(iii) the particular
relationship of protection between a member of the police force and
an ordinary person; and the fact that the on-duty police could have
intervened on behalf of the assaulted plaintiff without any
difficulty.






In
the more recent case of Minister of Safety and Security v van
Duivensboden
,
3
The South African Supreme Court of Appeal dealt with the legal issues
relevant to the instant case.





The facts of this case were briefly:






One B owned two licensed
firearms. He habitually consumed alcohol to excess and while under
the influence of liquor, was inclined to become aggressive and abuse
his family. On 25 October 1995 a domestic squabble between B and his
wife developed in the course of which B shot and killed his wife and
young daughter. He also shot the respondent in the ankle and
shoulder.







The police had prior to this
been in possession of information which reflected on B’s fitness to
possess firearms long before the respondent had been shot. While
some of the information had emanated from B wife, members of the
police had had direct information as a result of two occasions on
which they had been summoned to defuse B’s threats to shoot his
wife and family. The second of these occasions when the police
entered the house after a siege lasting many hours, they found that B
had lined up at least 20 boxes of spare ammunition and had reduced
the house to a shambles.







The respondent sought to recover
from the Minister of Safety and Security the damages he had sustained
as a result of his injuries on the grounds that although the police
officers had known, from the events of 27 September 1994, that B was
unfit to possess firearms, they negligently had failed to take steps
available to them in terms of Section 11 of the Act to deprive B of
firearms. As a result of that failure, B had still been in
possession of firearms on 25th October 1995 when
respondent was shot.







The respondent’s claim was
dismissed by a single judge but allowed on appeal to the full bench.
The Minister then appealed to the Supreme Court of appeal but the
appeal was rejected. Although reliance was placed by the Court of
appeal on provisions of the South African Constitution which are not
contained in the Namibian Constitution, the fundamental right to life
and property is fundamentally the same. In any case the legal duties
which rest on the Namibian police and






through them on the
Government and the State, are clearly set out in the various articles
of the Constitution and in the Police Act as set out in SECTION III
of this judgment.





In
the aforesaid decision the Court held inter alia:






(i) Negligence is not
inherently unlawful. It is unlawful, and thus actionable, only if it
occurs in circumstances that the law recognizes as making it
unlawful. Unlike the case of a positive act causing physical
harm, which is presumed to be unlawful
, a negligent omission is
unlawful only if it occurs in circumstances that the law regards as
sufficient to give rise to a legal duty to avoid negligently causing
harm.







(ii) “There is no
effective way to hold the State to account in the present case other
than by way of an action for damages and, in the absence of any norm
or consideration of public policy that outweighs it, the
constitutional norm of accountability requires that a legal duty be
recognized. The negligent conduct of the police officers in those
circumstances is thus actionable and the State is vicariously liable
for the consequences of any such negligence.”
4







In the case of Carmichele v
Minister of Safety and Security
, the South African Constitutional
Court upheld an appeal against a decision of the High Court and the
Supreme Court of Appeal dismissing an action for damages by
Carmichele, a woman, who had been brutally assaulted by one C at the
house of a Mrs G.








The action was based
on alleged omissions by the police and the Public Prosecutor which
resulted in the release of C on bail on previous charges of Rape,
when there was information available to the police and through them
to the prosecutor, of C’s previous conviction and crimes which may
have resulted in bail being refused if the magistrate was given the
correct information.



C’s brutal assault on
Carmichael was perpetrated when he was on bail.







The High Court had granted
absolution from the instance. The Constitutional Court now remitted
the case for a proper hearing to the High Court. The argument before
the Constitutional Court centred on the implicit duty of the Courts
to develop the common law in accordance with the letter and spirit of
the common law, wherever the existing common law does not meet the
requirements of justice in accordance with the South African
Constitution.



The Court held inter alia
that there was a duty on the State and its organs not to perform any
act that infringed the fundamental rights entrenched in the South
African Constitution and further held that in some circumstances
there would also be a positive component obliging the State and its
organs to provide adequate protection to everyone through laws and
structures designed to afford such protection – the Constitution
did not draw a distinction between acts of commission and omission in
this regard.





It must be noted that the South African
Constitutional Court did not finally decide the matter because the
facts still had to be decided by the High Court and findings made
applying the law to the facts. However the Constitutional Court held
that a prosecutor’s negligence not to place relevant information
before the magistrate relating to an application for bail, could
result in awarding damages to a plaintiff who had been injured by a
criminal wrongly released on bail, because the prosecutor had failed
to supply available relevant information to the Court.





In
the decision of Van Eden v Minister of Safety and Security,
the South African Supreme Court of Appeal awarded damages to the
plaintiff where the plaintiff, a 19 year old woman, was sexually
assaulted, raped and robbed by M, a known dangerous criminal and
serial rapist who had escaped from police custody.








The
plaintiff claimed that the police owed her a duty to take reasonable
steps to prevent M from escaping and causing harm. The Court a
quo
dismissed plaintiff’s claim but the Supreme Court allowed
the appeal and made the following order:



1. It is declared that the
conduct of the defendant’s servants was wrongful and that the
defendant is liable to the plaintiff for such damages as she is able
to prove…”






As motivation for the Court’s order the Court held that the
police owed the appellant a legal duty to act positively to prevent
Mohamed’s escape. The learned judge who wrote the judgment said
that:



“the existence of such a duty accords with what I would perceive to
be the legal convictions of the community and there are no
considerations of public policy militating against the imposition of
such a duty. To sum up, I have reached this conclusion mainly in
view of the State’s Constitutional imperatives to which I have
referred; the fact that the police had control over Mohamed who was
known to be a dangerous criminal and who was likely to commit further
sexual offences against women should he escape; and the fact that
measures to prevent his escape could reasonably and practically have
been taken by the police….”





Although the Namibian Constitution does not contain an explicit
provision that the Courts must adapt the common law where it does not
accord with the letter and spirit of the common law, the NAMIBIAN
Constitution and Police Act, not only amplifies the common law in
relation to the Law of Delict, but overrides it where the common law
is inconsistent or inadequate.





Although the Namibian Constitution and statute law are the main
sources of law on which the Namibian Courts must rely in deciding the
legal issues arising in this case, the South African decisions
discussed herein, afford useful guidelines also for the Namibian
Courts.





SECTION
IX
: CONCLUDING REMARKS







  1. The
    events at Tsumeb on 21st August 2000 can only be
    described as shocking and scandalous. It is a blemish on Namibia
    and Namibians, its Rule of Law, its administration of justice, and
    the Namibian Police, its level of competence and its ability and
    commitment to perform its functions and duties laid down by the
    Namibian Constitution, the Police Act and other statutes.







It is also
particularly disturbing that such a large section of a Namibian
community could willingly participate in such serious and heinous
crimes. No wonder that serious crimes have escalated in recent years
in Namibia.





Grave crimes were
committed in the presence of the police and they pleaded inter
alia
that they were overrun by a mob and were unable to prevent
it. The position is however aggravated by the fact that the police
failed to take any action against the perpetrators after being
“overrun”. So e.g. no steps were taken to recover the property,
but also no prosecutions were ever instituted, notwithstanding the
commission of grave and heinous crimes in broad daylight in their
presence.






2. There was much
speculation in this case about the reasons for the crowd’s
behaviour. Unfortunately, the events at Tsumeb, were not the first
and only such occurrence in Namibia.






I may mention that in evidence under
oath given at public hearings of the “Judicial Commission of
Enquiry into Legislation for the more effective combating of crime in
Namibia”, chaired by myself, it became clear that several incidents
of the same nature had taken place in Namibia.





The phenomenon was regarded as so
serious and so objectionable, that the Commission in its written
report to the President dated 12 August 1997 recommended that
provision is made in the envisaged new Criminal Procedure Act for a
minimum sentence of two (2) year imprisonment and a maximum sentence
of eighteen (18) years, for the crime of Theft, committed at or
from a place of accident or scene of crime
. The crime is
obviously much more serious when committed by a violent mob,
amounting to Robbery and Public Violence.






At page 625 of the report the
Commission motivated this recommendation as follows:






Various forms of theft which
have become particularly damaging or prejudicial to the individual
and/or the State and/or where the society’s disapproval
should be marked, have been selected for the regime of maximum and
minimum sentences.”









One would have thought that when a civilized person arrives at a
scene of accident, such person would be inclined to establish whether
he/she could be of any assistance, rather than engage in robbing and
stealing and even joining a mob to rob and steal, disrupt public
order and commit Public Violence.





It is in the public interest of Namibia and all its citizens that
steps are urgently taken to prevent and discourage the development of
a culture where people believe that it is right to plunder and loot
the persons and property involved in an accident and that such
plunder and looting carries the approval of the Namibian Police, will
not be prevented and/or discouraged by the police and will go
unpunished.






3. I have no doubt
in this case that:





3.1. The Namibian
Police had a legal duty provided for in the Namibian Constitution and
Police Act towards the plaintiff, to protect the plaintiff and its
property. The aforesaid legal duty also amounted to a “duty of
care” as known in the Law of Delict.





3.2. The police
had failed to fulfill their aforesaid legal duties and in particular
had failed to take reasonable steps to do so. The reasonable steps
here contemplated are steps to be taken by the reasonable police
persons in the execution of the onerous legal duties imposed by the
Namibian Constitution and the Police Act, on the Namibian Police
Force.





The reasonable steps are those to be
taken by members of a professional police force trained and equipped,
mentally and materially, for their tasks. The Government cannot
escape liability if it had failed to take reasonable steps for such
training and equipment.








    1. The
      negligent omission by the Namibian Police Force to perform their
      aforesaid legal duties was a direct cause of the theft of the
      property of the plaintiff and the failure to retrieve it.







3.4. As a direct
consequence of the acts and omissions of the defendant, the plaintiff
suffered damages in the amount of N$134 254.60.






3.5. The aforesaid
findings in my respectful view also accord with the legal convictions
of the law-abiding citizens of Namibia.







4. The judgment in this case is
long overdue. The reason for this is that judge Pio Teek, JA, to
whom the duty was allocated in April 2004 by the then acting Chief
Justice Strydom to prepare the judgment of the Court, had failed to
do so by the time that he was suspended by His Excellency, the
President of Namibia on the recommendation of the Judicial
Commission, pending the outcome of criminal charges against him and a
final consideration and recommendation by the Judicial Commission in
the light of such outcome.






In my respectful view, the
remaining two members of the Supreme Court, namely Strydom A.C.J and
myself, may hand down a valid and binding judgment in this appeal,
provided we agree on the result.







In this regard I associate
myself with the opinion of Strydom, A.C.J., in his judgment in Wirtz
v Orford
, handed down at the same time as my judgment in this
appeal, concurred in by Strydom A.C.J.






In the result the
following order is made:






  1. The appeal succeeds.


  2. The respondent is ordered to pay to the appellant:



    1. the
      sum of N$134 254;





(ii) interest thereon at the
rate of 20% a tempore morae from date of judgment; and



(iii) Costs of suit in the Court
a quo and in this appeal.




















________________________


O’LINN,
A.J.A











I
agree















STRYDOM,
A.C.J.





























ON BEHALF OF THE
APPELLANT:


INSTRUCTED
BY:






MR.
A.W. CORBETT


LORENTZ
& BONE






ON BEHALF OF
RESPONDENT:


INSTRUCTED
BY:



MR.
R.H. GOBA


GOVERNMENT
ATTORNEY







1
1976 (2) 450 (N.P.D)




2
1975 (3) SA 590 (A)




3
2002 (6) SA 431 (SCA)




4
See also: Van Edden v Minister of Safety and Security,
2003 (1) 389 SCA.


Kruger
v Coetzee
, 1966 (2) SA 428 (A) Mukheiber v Raath, 1999
(3) SA 1065 (SCA)


Carmichele
v Minister of Safety and Security
, 2001(4) SA 938 CC.


Van
Eeden v Minister of Safety and Security
, 2003 (1) SA 389 (SCA)