Court name
Supreme Court
Case number
SA 35 of 2012
Title

Minister of Safety And Security v Kabotana (SA 35 of 2012) [2014] NASC 2 (26 March 2014);

Media neutral citation
[2014] NASC 2
Coram
Shivute J










IN THE SUPREME
COURT OF NAMIBIA





CASE
NO.: SA 35/2012





DATE:
26 MARCH 2014





REPORTABLE





In the matter
between





MINISTER OF
SAFETY AND SECURITY.........................................Appellant





And



JOHN GENESE
KABOTANA..........................................................Respondent








Coram: SHIVUTE
CJ, MTAMBANENGWE AJA and O’REGAN AJA





Heard: 07
November 2013





Delivered:26
March 2014





APPEAL
JUDGMENT











[1] The respondent
was arrested by the Namibian Police in the aftermath of an armed
attack in and around the town of Katima Mulilo with the apparent
purpose of achieving secession of the region of Caprivi (now called
Zambezi Region) from the Republic of Namibia. Following the attack, a
state of emergency was declared by the President of Namibia to
contain the public emergency. The emergency regulations adopted by
the President suspended, amongst others, Art 11(3) of the Namibian
Constitution with the result that during the state of emergency,
security forces could lawfully detain arrested persons for longer
than the prescribed period of 48 hours before they were brought to
court. The state of emergency was lifted on 26 August 1999. The
evidence establishes that after the state of emergency was lifted,
the Namibian Police and other security services conducted what were
referred to as 'mopping up' operations in the region. A number of
suspects and potential witnesses were rounded up in those operations
and processed through the Katima Mulilo police station. At that time,
a small group of six detectives was responsible for the arrest,
interrogation and processing of suspects at the Katima Mulilo police
station. This was a woefully small group of detectives given the
seriousness and the size of the task they had to perform. The
evidence shows that the team worked under severe pressure.





[2] The respondent
was arrested during the morning of Wednesday, 1 September 1999, and
was detained at Katima Mulilo police station from 15h49. He was
arrested together with five other suspects. In the early hours of the
following morning, 2 September 1999, the group of detectives was
called to an area outside Katima Mulilo where security forces had
encountered suspected rebels and more arrests were made that day.
Consequently, the detectives were able to attend to the
administrative work of processing persons arrested on 1 and 2
September only on Friday 3 September 1999. They spent the whole day
on Friday 'processing' the arrested persons.





[3] According to the
evidence, the 'processing' of a suspect involved interviewing and
taking a warning statement from him or her before he or she is taken
to court. The police evidence establishes that the purpose of this
process was to determine which of the suspects should be charged and
which should be released. Many suspects were released during the
process and never taken to court. The respondent's warning statement
was taken from him at around 15h10 on Friday, 3 September 1999.





[4] During the
trial, the respondent maintained that contrary to the evidence of the
appellant's witnesses, he was not taken to the magistrate's court at
all on Friday, 3 September 1999 and counsel for the respondent in his
written heads of argument appeared to persist with this contention.
The High Court found that the respondent was taken to the
magistrate's court on Friday afternoon. Counsel, very properly,
conceded during oral argument that since there was no counter appeal
against this finding by the court below, he could not persist with a
contrary assertion. It is therefore accepted that the respondent was
taken to the Katima Mulilo Magistrate's Court after a warning
statement was taken from him on the afternoon of Friday, 3 September
1999. However, the record also shows that when the respondent and
other suspects were taken to court there was no magistrate or
prosecutor available. The prosecutor testified that he had left, on
prior arrangements, at 14h00 that Friday. The magistrate sat in the
morning but it is not apparent what time he had left the court. The
respondent and about 15 other suspects were eventually transported to
Grootfontein where they appeared before court on Monday, 6 September
1999.





[5] The appeal is a
sequel to the action that the respondent instituted against the
appellant in the High Court claiming, amongst others, unlawful
detention and seeking compensation. In respect of the claim giving
rise to the appeal, the respondent alleged in effect that he was not
brought before a magistrate within 48 hours of his arrest as
required by Art 11(3) of the Constitution and s 50 of the Criminal
Procedure Act 51 of 1977 (the Criminal Procedure Act). His claim for
unlawful detention was upheld by the High Court and he was awarded
compensation in the amount of N$12 000,00 with interest at a rate of
20% per annum. The High Court made a specific finding that the
respondent was detained unlawfully from the afternoon of 3 September
1999 until the morning of 6 September 1999. The appeal is against
this finding and the award of damages.





Applicable law




[6] Article 11(3) of
the Constitution provides as follows:





‘All persons
who are arrested and detained in custody shall be brought before the
nearest Magistrate or other judicial officer within a period of
forty-eight (48) hours of their arrest or, if this is not reasonably
possible, as soon as possible thereafter, and no such persons shall
be detained in custody beyond such period without the authority of a
Magistrate or other judicial officer.’








[7] Section 50 of
the Criminal Procedure Act insofar as it is relevant to the issues
that need determination reads:





‘(1) A person
arrested with or without warrant shall as soon as possible be brought
to a police station or, in the case of an arrest by warrant, to any
other place which is expressly mentioned in the warrant, and, if not
released by reason that no charge is to be brought against him, be
detained for a period not exceeding forty-eight hours unless he is
brought before a lower court and his further detention, for the
purposes of his trial, is ordered by the court upon a charge of any
offence or, if such person was not arrested in respect of an offence,
for the purpose of adjudication upon the cause for his arrest:
Provided that if the period of forty-eight hours expires-





(a) on a day which
is not a court day or on any court day after four o'clock in the
afternoon, the said period shall be deemed to expire at four o'clock
in the afternoon of the court day next succeeding;





(b) on any court day
before four o'clock in the afternoon, the said period shall be deemed
to expire at four o'clock in the afternoon of such court day;





(c) ...





(d)





(2) A court day for
the purposes of this section means a day on which the court in
question normally sits as a court.





(3) ...’





[8] As previously
mentioned the respondent was arrested on Wednesday, 1 September 1999
and only appeared in court on 6 September. The 48-hour period from
the time of his arrest ended on 3 September 1999. Since the
respondent was brought before court only on 6 September 1999, the
appellant bore the onus to prove, in the words of Art 11(3), that it
was not 'reasonably possible' to bring him before a magistrate before
the expiry of the 48-hour period.





[9] Damaseb JP, who
presided over the trial, adopted the following approach in deciding
whether the respondent was in fact unlawfully detained:





'It being common
cause that the [respondent] was not brought to court within 48 hours
of arrest;





Was it possible for
the police to have complied with the requirement of law?





Is the reason the
plaintiff was not brought before court within 48 hours after arrest
because it was not reasonably possible to do so; and assuming that to
be the case, was he brought to court as soon as possible?'








[10] The
Judge-President went on to find that it was not in dispute that there
was no magistrate available when the respondent was taken to court on
Friday, 3 September. He observed that the respondent's position was
that the appellant who bore the onus did not give a satisfactory
explanation as to why no prior arrangement was made with the court
for the magistrate to be available on the afternoon of 3 September
and that the evidence led on that score only demonstrated that the
police were overstretched in the aftermath of the secession attack.




[11] Mr Coleman, who
argued the appeal on behalf of the appellant, contended that the
Judge-President did not use the correct approach in deciding whether
it was ‘reasonably possible’ to bring the respondent
before a magistrate within 48 hours of being arrested and argued that
the correct test should be:





'Was it reasonable
or not – under these extreme circumstances – for the
police officers to assume that they could still bring the respondent
and other detainees before court on the Friday afternoon.





Intertwined in this
enquiry should be the fact that [the respondent] was not the only one
and that the detainees were taken to Grootfontein on Sunday, 5
September 1999 to appear before court on Monday morning, 6 September
1999.'





[12] Counsel argued
furthermore that the term ‘reasonably possible’ as
employed in Art 11(3) of the Constitution should be interpreted in
relation to negligence, using the test of a reasonable person. In his
submission, if on the evidence, the police officers did not act
negligently and unreasonably the appellant could not be held liable
for the failure to comply with the 48-hour rule. To adopt a different
approach, so counsel contended, would be to place too heavy a burden
on the police than is warranted. Counsel contended that this was an
emergency situation in which convenience of the police officers
played no role.





[13] For my part,
the issue for decision is whether or not on the facts it was
reasonably possible for the police officers to comply with the
48-hour rule. The appellant was required to prove that in the
prevailing circumstances it was not reasonably possible for the
police officers involved in the arrest and processing of the
respondent to ensure that the respondent appeared before a magistrate
within 48 hours of his arrest.





[14] Counsel for the
appellant seemed to concede to this characterisation of the issue,
yet he continued to argue that the issue should not be viewed as if
it was a question of convenience as described in S v Mbahapa 1991 (4)
SA 668 (NmHC). Counsel went on to argue that in the circumstances of
the case the issue of ‘negligence’ should be considered
otherwise the meaning of the word ‘reasonably’ would be
undermined to the extent of rendering the concept meaningless.





[15] I cannot agree
that the delictual standard of negligence should be employed. The
issue of what may or may not be reasonable in the context that word
is used in Article 11(3) was discussed in the Mbahapa's case and I
shall advert to it in a moment. But before I do so, it is necessary
to remind ourselves of the purpose of Article 11(3). The object of
the Article was aptly stated by Parker J in Sheehama v Minister of
Safety and Security 2011 (1) NR 294 (HC) at para 5 as follows:





‘One must not
lose sight of the fact that the object of Art 11(3) of the Namibian
Constitution is to ensure the prompt exhibition of the person of an
arrested and detained individual before a magistrate or other
judicial officer so as to prevent the detention of a person
incommunicado which is itself an affront to our constitutionalism,
democracy and respect for basic human rights. It is also an assurance
to the magistrate or other judicial officer that the arrested and
detained person is, for instance, alive and has not been subjected to
any form of torture or to cruel, inhuman or degrading treatment while
in the hands of those who have detained him or her; treatment that is
outlawed by Art 8(2) of the Namibian Constitution. The 48-hour rule
is therefore one of the most important reassuring avenues for the
practical realisation of the protection and promotion of the basic
human right to freedom of movement guaranteed to individuals by the
Namibian Constitution’.








[16] I respectfully
agree with the learned judge's views. Article 11(3) is an aspect of
the fundamental right to liberty guaranteed by Art 7 of the
Constitution. The right to be brought before a court within 48 hours
is undoubtedly an important constitutional right accorded to arrested
persons, which in the light of our pre-Independence history of
detention without trial and other related injustices , should be
guarded jealously. This is particularly important in times of
conflict and in the circumstances such as those described by
Detective Inspector Simasiku (a police officer who was involved in
the arrest of the respondent) who was at pains to describe how thin
on the ground the remaining investigating unit was resulting in it
being severely overstretched.





[17] Turning now to
the phrase 'reasonably possible', as already mentioned, its meaning
was considered by the High Court in Mbahapa's case. Referring to Art
11(3) the court in that case stated at 674E-F as follows:





'The Article
provides in plain terms that an arrested person must be brought
before a magistrate within 48 hours of his arrest or released. It is
only if it is not reasonably possible to bring an arrested person
before a magistrate within the 48-hour period that further detention
in custody is permitted and even then the detained person must be
taken before a magistrate "as soon as possible". In the
context of Art 11(3) the words "as soon as possible"
require little interpretation or explanation. There must, of course,
be an element of reasonableness implied but once the circumstances
are such that it is reasonably possible to take the arrested person
before a magistrate, that must be done. If it is not then the
arrested person is deprived of his fundamental right to freedom as
guaranteed by the Constitution.'



The Court
continued to say:





'As I have
indicated, what is possible or reasonably possible must be judged in
the light of all the prevailing circumstances in any particular case.
Account must be taken of such factors as the availability of a
magistrate, police manpower, transport, distances and so on. But
convenience is certainly not one such factor.'








[18] This, in my
view, is the correct test and it is therefore not appropriate to
apply the private law standard of negligence as counsel for the
appellant urged us to do. The issue concerns an infringement of a
fundamental right as opposed to a delictual wrong. Constitutional
infringements are different from ordinary delicts. (Cf. Dendy v
University of the Witwatersrand 2005 (5) SA 357 (W) at para 23.) As
was pointed out in Garces v Fouche 1997 NR 278 (HC) at 282B, albeit
under a different set of facts, Art 11(3) finds its place in the
Constitution solely for the benefit of arrested persons and not for
the benefit of the State.





[19] The degree of
diligence shown by the authorities in their attempts to comply with
the 48-hour rule plays a particularly important role in ensuring that
the fundamental rights of individuals are protected. It goes without
saying that a high level of diligence must be exercised by the
authorities as a commitment to ensuring the protection of
constitutionally guaranteed human rights.





Pertinent
evidence





[20] The main
witness for the appellant was Detective Inspector Simasiku to whom
reference was made above. His evidence relevant to the respondent was
that the respondent as already mentioned, was arrested on Wednesday,
1 September 1999. He was arrested together with five other suspects.
On Thursday, 2 September 1999 the police were called to the
Kaliyangile area where the army made contact with suspected rebels.
About 16 suspects were arrested on Thursday, bringing the total
number of suspects arrested in the area on 1 and 2 September to 22.
The whole of Thursday, 2 September, was spent on the operation in the
Kaliyangile area with the result that the administrative work of
processing suspects that was due to be done on that day could only be
done on 3 September 1999. All the 22 suspects were processed on 3
September 1999. Some of these were released and ultimately only about
14 were taken to court. Detective Inspector Simasiku was aware that
on Fridays, depending on the number of cases, the court could adjourn
before lunch, but that if there was a heavy workload the court could
sit till after 17h00. The respondent and other suspects were taken to
court on 3 September 1999 'towards 16h00 or past 16h00'.





[21] On being asked
a pertinent question in cross-examination why no arrangements were
made in advance to ensure that there was a magistrate available when
the suspects were taken to court on Friday, 3 September 1999,
Detective Inspector Simasiku answered in effect that this was due to
the pressure of work and that the team knew that the court had sat
that Friday. Being asked an equally crucial question why they could
not have processed the people who were arrested on 1 September 1999
and taken them to court first, Simasiku effectively evaded the
question by answering:





'Every suspect that
was arrested whether 1st or 2nd they were all important in the sense
that we had to interrogate them, or screen their involvement in this
matter.'





[22] The former
prosecutor at Katima Mulilo Magistrate's Court, Mr Christopher
Stanley, testified on behalf of the appellant. He confirmed in
cross-examination, and as previously stated, that on Friday, 3
September 1999, he had left office early on prior arrangement to
spend a weekend with his family in Rundu, some 500 kilometers away.
Mr Stanley confirmed that the court could sit in the afternoon on
Fridays and that if arrangements had been made in advance to bring
suspects to court a prosecutor and magistrate could have been made
available to handle the respondent's case.





[23] Mr Coleman
urged the court not to be an 'arm chair critic' and ignore the
circumstances prevailing at the time. Counsel argued that the
circumstances were such that the police officers were extremely busy
and were dealing with what he termed a ‘war situation’.
The police officers, he contended, took the respondent to court on 3
September 1999, only to find that no magistrate was present, and the
Monday immediately following the Friday (3 September 1999) the police
officers brought the respondent before a magistrate.





[24] Counsel for the
appellant also argued that in terms of s 50(1) of the Criminal
Procedure Act, the 48-hour period relevant to the respondent expired
on Friday at 16h00 but if the respondent had been arrested on
Wednesday 1 September 1999 at 16h05, the 48-hour period would have
expired on Monday 6 September 1999 at 16h00. This, he submitted, is
an extension of the 48-hour period and should be taken to be the
legislature’s view of reasonable circumstances which justify
the extension of the 48-hour rule.





[25] Mr Tjombe, who
appeared for the respondent together with Ms Hancox, argued in
response to the contention that the aftermath of the attack could not
be ignored, that it is precisely in those 'chaotic' circumstances
that collaboration is required amongst different Government
Ministries to ensure that the fundamental rights of individuals
affected by the police operations are respected and protected.
Counsel contended further that the highest standard of compliance
must be imposed in respect of constitutional rights and duties
especially when armed forces are involved. The police officers, he
continued, should have made arrangements with the magistrate’s
court officials to ensure that the magistrate or an assistant
magistrate would be present when the arrested persons were taken to
court after their warning statements had been taken.





[26] Counsel based
this argument on the concession made by Detective Inspector Simasiku
that he was aware that the magistrate in the Katima Mulio district
could sit beyond 17h00 if necessary. Additionally, so counsel argued,
the police officers being aware that the magistrate’s court had
on occasion adjourned before lunch on Fridays, should have made an
effort to ensure that a magistrate would be available when the
suspects were taken to court. He argued that a simple phone call or
sending an officer to court to make arrangements would have sufficed.
Mr Tjombe contended that the appellant did not fully discharge the
onus of proving that it was absolutely impossible to secure the
presence of a magistrate or an assistant magistrate on the day the
respondent was taken to court.





[27] My own view is
that one cannot but be sympathetic to the plight of the small team of
detectives that was faced with the enormous responsibility of
processing large numbers of arrested persons and operating under
exacting circumstances. That they worked under severe constraints was
not disputed on the evidence. However, in the circumstances where
the team knew that the state of emergency was lifted and thus
constitutional rights were in force and had to be respected, the
48-hour rule should have been a flashing red light in their minds. In
relation to the 16 suspects who were arrested on Thursday, 2
September 1999, the 48-hour rule required them to be taken to court
only by Monday, 6 September 1999. If the officers had regarded the
48-hour rule as a flashing red light, as they should have, then they
could have well processed the 6 suspects who were required to appear
in court by Friday and dealt with the other 16 later. In the
circumstances where police officers are working under severe
constraints such as the picture painted by Detective Inspector
Simasiku, law enforcement and other officials ought to combine the
State's resources to ensure that there is mutual co-operation in the
enforcement of constitutional rights and freedoms. This requires
coordination and planning.





[28] On the facts of
this case, given the importance of the constitutional right in
question, the police team processing the suspects could easily have
made prior arrangements with court officials to ensure that there was
a presiding officer available to postpone the cases in the late
afternoon when they took the suspects to court.





[29] We must guard
against laxity and aspire to setting very high standards for
compliance with constitutional rights, especially those having a
bearing on the liberty of individuals. I cannot agree with counsel
for the appellant's submission that to require the police to have
made arrangements in advance so as to ensure that there was a
presiding officer available would amount to punishing them for not
making one phone call. It is indeed merely one phone call or a visit
to the court that on the evidence is a stone's throw from the police
station that may well have ensured that the respondent was taken to
court within the prescribed period.





[30] It is therefore
my considered opinion that although the police officers constituting
the investigating team worked under severe and testing conditions, it
was reasonably possible for them to have complied with the provisions
of Art 11(3). As already stated, there were two courses of action
available to them which would have brought about this result. First,
they could have made prior arrangements with court officials to
ensure that a magistrate and prosecutor were available in the late
afternoon of Friday 3 September 1999. Alternatively, the detectives
could have arranged their work by processing first the six suspects
who, in terms of Art 11(3) of the Constitution, had a constitutional
right to be brought before court on Friday, 3 September. Both of
these courses of action were available to the police officers in the
admittedly exigent circumstances in which they were working, but
neither course was adopted.





[31] I emphasise
that the 48-hour requirement must act as a flashing red light in the
minds of the officers processing suspects for onward transmission to
court. This is the vigilance with which we must guard this
fundamental right to appear in court within 48 hours after being
arrested unless it is not reasonably practical to do so. The
Judge-President cannot be faulted for making the findings he has made
and the appeal ought therefore to be dismissed. I would order
accordingly. As the respondent who is represented by the Legal
Assistance Centre has not asked for an order of costs, I do not
propose to make an order as to costs.





[32] The following
order is accordingly made:





1. The appeal is
dismissed.





2. No order as to
costs is made.








SHIVUTE CJ





MTAMBANENGWE AJA





O’REGAN AJA








APPEARANCES








APPELLANT:...............G
Coleman





...................................Instructed
by the Government Attorney





RESPONDENT: N
Tjombe (with him T Hancox)





................................Instructed
by Legal Assistance Centre