WINDHOEK – Joseph Kabuyana Kabuyana who was acquitted by Judge Elton Hoff in the ongoing ‘Caprivi treason trial’ failed in his attempt to get compensation from the government.
Kabuyana sued the government for N$300 000 because of alleged unlawful detention during August 1999. In his particulars of claim he stated that he was arrested on 30 August 1999 and only taken to court on 4 September which falls out of the prescribed 48 hours. He also claimed to be assaulted and his right to bodily and psychological integrity was infringed upon as he was allegedly subjected to torture, inhuman and degrading treatment at the hands of the police.
In his judgment, Judge President Petrus Damaseb said that “evidence established that Kabuyana was brought before an assistant magistrate within 48 hours of his arrest.” He dismissed the claim with costs. Kabuyana at the start of the matter abandoned his N$400 000 claim for assault and torture.
The Judge President said in his judgment that the plaintiff’s case is “most confusing and in constant flux”. “To compound it even further, his counsel’s written submissions gave the impression that the plaintiff was (in addition to the alleged unlawful action attributed to the defendant) taking issue with whether or not the magistrate, who the defendant says presided at the remand hearing of the plaintiff’s matter on 31 August , 1999, was competent to do so or did what she ought to have done” the Judge President said. He berated the counsel for Kabuyana, Ricardo Mukonda from the Legal Assistance Centre, for the manner in which he handled the matter.
“It was never quite clear to me at any given moment during the trial just what case was being advanced on behalf of the plaintiff. A civil trial is not some kind of game in which the players adjust their positions as the case progresses. Pleadings are intended to define the issues in dispute between the parties and once the issues are defined, the parties must lead evidence and tailor argument in accordance therewith. In that respect I found Mr Mukonda wanting,” the Judge President said.
According to Damaseb the defendant satisfied the onus that the plaintiff was brought before court on 31 August , 1999, being 48 hours after his arrest, and that he was detained thereafter on the authority of a warrant issued by a magistrate and not, as he claims, in furtherance of the illegal actions of the investigating officer or indeed any other police officer, being employed by the defendant.
The Ministry of Safety and Security who defended the suit was represented by George Coleman on the instruction of the Government Attorney.
By Roland Routh