WALVIS BAY – The legal battle of Scouts of Namibia took a dramatic turn as their attempt to escape a N$2.2 million lawsuit was rejected in the High Court of Namibia. Their application for absolution was met with disappointment as Judge Orben Sibeya denied their request, paving the way for the case to proceed to trial on 17 and 18 August in the High Court.
The lawsuit was brought forth by Wilhelmina Ndahambelela Kamati, who is seeking justice for her then 10-year-old son, Jason Kamati, who allegedly endured a 30-minute-long pitbull attack on 7 February 2020 at the Scouts of Namibia premises in Tsumeb.
Kamati stated in court documents that “the pitbull unleashed a vicious and life-threatening assault on my child, resulting in severe and permanent injuries.”
The minor, who was hospitalised for at least three months, lost an ear, and had to undergo reconstructive surgery on his head.
“The extent of the trauma, pain
and suffering inflicted upon my son has left scars, and severe and permanent injuries. He requires continuous and future medical treatment and care,” she detailed.
As a result, she is claiming N$500 000 for emotional, medical and related specialist treatment; a
further N$1 million for trauma, pain and suffering; N$200 000 for the loss of her son’s right ear; and N$500 000 for loss of future earning potential.
Court documents revealed that the pitbull, at the time of the attack, was under the care of Desmond Mandjalo, who was staying at the premises of Scouts of Namibia while rendering volunteer services. However, Scouts of Namibia stated in their application that they had no knowledge that Mandjalo, who was not their employee, owned, possessed or kept a pitbull on their premises. They further denied the allegations of their negligent failure to take
reasonable preventative measures to secure the pitbull from escaping its restraint or enclosure.
Kamati’s legal representative, James Diedericks, claimed negligence against Scouts of Namibia during the hearing, arguing that both defendants had a duty of care towards the minor child and other children, and their failure to secure the pitbull breached this duty.
He further submitted that both defendants knew that there was a pitbull on the premises.
“Both defendants knew that the pitbull roamed unrestrained, and knew that children attended the premises,” Diedericks added.
Scouts of Namibia representative Nafimane Halweendo argued that the evidence established that the Scouts of Namibia owns the premises, but does not prove that Mandjalo was employed by them.
“The fact that Mandjalo was on its premises, and that a delict occurred, does not impute liability on Scouts of Namibia“, he said.
However, Sibeya ruled that Scouts of Namibia were aware of the presence of the vicious pitbull on the premises, at least on 7 February 2020, although Scouts of Namibia denied the allegations of negligent failure
to take reasonable preventative measures
to secure the pitbull from escaping its restraint or enclosure.
“The court accepts at this stage that the pitbull was not enclosed or secured in an enclosure nor was it tied to a leash, but was left to move freely. The defence raised by Scouts of Namibia that it was not aware of the presence of the pitbull on the premises constitutes a defence within its knowledge. In the court’s view, only Scouts of Namibia can inform the court through evidence of its lack of knowledge of the presence of the pitbull on its premises. On this basis alone, the application for absolution brought by Scouts of Namibia ought to fail,” Sibeya said.
The court thus found on a prima facie basis that considering that the premises belong to Scouts of Namibia, they permitted Mandjalo to reside on the premises with dogs in the past. Also, Scouts of Namibia was aware that children attended scout training on the premises, and they failed to ensure that the premises were a secure place for the said children.
“I hold that as the unsecured pitbull under the control of Mandjalo attacked the minor child on the premises, it appears to attract liability on the part of both the defendants for the damages caused to the minor child. The application for absolution from the instance is refused with costs,” Sibeya ruled.
-edeklerk@nepc.com.na