Judge lashes police’s ‘despicable conduct’

Home National Judge lashes police’s ‘despicable conduct’
Judge lashes police’s ‘despicable conduct’

Windhoek High Court Judge Essie Schimming-Chase has severely criticised the police’s conduct during the arrest of a stock theft suspect.

Retired major general Thomas Ngilifavali Hamunyela, who sued the Ministry of Home Affairs, Immigration, Safety and Security for unlawful arrest and detention, scored a handsome settlement. 

Schimming-Chase awarded him a total of N$219 630 in damages. 

In her judgment, she said the Namibian Constitution is crystal clear on the recognition of inherent dignity and of equal and unalienable rights of all members of the human family which was purposefully disregarded by those mandated to uphold the provisions, and to serve and protect. 

Hamunyela initially claimed N$420 000. This constituted a claim of N$150 000 for unlawful arrest, N$100 000 for further detention of three days in a holding cell in January last year in Rundu and an additional N$170 000 for both claims and legal costs.

The judge, however, awarded N$50 000 on the first claim, N$40 000 on the second claim and N$129 630 on the third claim. She also awarded costs of the suit to Hamunyela.

The government conceded liability and offered the retired general N$60 000 through government attorney Jabulani Ncube. The offer from the government attorney states that the defendant – minister – accepts liability in relation to the conduct of police officers when they detained the general for a period of three days. However, they say, the monetary value to be paid is an issue. According to the attorney general, the claims of the general is not equitable with the damages he sustained. They claim that the court should be provided with tangible evidence which “is not thumb sucked evidence” that should assist the court to determine a fair, just and equitable award under the circumstances. The general did not accept the settlement and continued his claim against the ministry. 

Sisa Namandje, who represented the general, said at the time: “The arrest and detention were not necessary and appropriate as the members of the police did not have any fear that the plaintiff (Hamunyela) if given summons would not appear in court. There was no reasonable suspicion that the plaintiff had committed any offence and there was no warrant for the plaintiff’s arrest.”

He further said there was no lawful, appropriate and necessary justification for his client’s detention. It follows from this that the defendant has violated the plaintiff’s right to liberty, dignity and fundamental freedom of movement and he is thus entitled to just compensation. 

In the premises, he said, the general is entitled to compensation in the amount of N$150 000 for unlawful arrest, N$100 000 for unlawful detention and N$170 000 for both and legal expenses.

Hamunyela was arrested in the Kavango West region at his farm on stock theft charges of three oxen and two cows, with a combined value of N$20 000.

He appeared before acting magistrate Rufinus Hikerua and prosecutor Hilia Munzenze and was remanded in custody until he was released following a formal bail hearing.

According to Schimming-Chase, in the determination of the award, the court must bear in mind that the primary purpose of the award is not to enrich the aggrieved party, but offer him or her much needed solation for his or her injured feelings. She further said the damages awarded must be commensurate with the injury inflicted and must reflect the importance of the right to personal dignity and liberty, and the seriousness of any arbitrary deprivation of personal liberty. Further, the judge said, the court must be guided by previous awards in similar cases, and should also have regard to the personal circumstances of the victim, the nature, extent and affront to his or her dignity and sense of self-worth. In this instance, she said, the victim was a retired army general who had a high esteem in his community. 

According to the judge, the court’s displeasure was already raised in several similar cases with the “despicable conduct that should not be associated with a professional police force in a constitutional state”. 

This is intolerable, the judge said, and continued: “It is quite unacceptable in this day and age, after the attainment of independence and the adoption of a constitution that entrenches fundamental rights and freedoms, for Namibian citizens to be treated in this demeaning manner by police officers they regard as their own. 

“The awards of damages against the respective government entities are paid out of taxpayers’ money,” the judge lamented. 

“For some reason, the individual perpetrators are allowed to disappear into the undergrowth and are not held accountable. The government agencies have a duty to weed out members who are guilty of such transgressions. It has become necessary that such displeasure and arbitrary action is meted out in the necessary sanction,” the judge stressed. 


Pic: Suit