Three judges of the Supreme Court last week set aside a decision by former High Court acting judge Philanda Christiaans, holding the office of the prosecutor general liable for damages for the continued malicious prosecution of a former Caprivi treason accused.
According to acting judge of appeal Yvonne Mokgoro, who wrote the judgment in concurrence with Chief Justice Peter Shivute and acting judge of appeal Bess Nkabinde, the High Court was correct in finding that the prosecutor general was not malicious in its prosecution against Agrrey Simasiku Mwamba on several charges, including high treason.
The High Court, however, found that the prosecutor general was malicious in its continued prosecution of Mwamba despite evidence exonerating him.
Aggrieved by this decision, the prosecutor general appealed the decision in the Supreme Court and Mwamba lodged a cross-appeal against the dismissal of his claim for compensation on malicious prosecution.
The matter arises from attacks on 2 August 1999 by the rebel Caprivi Liberation Army to secede the then Caprivi region from Namibia.
The attack, which targeted government installations caused the deaths of eight police officers and extensive damage to buildings in and around Katima Mulilo.
This led to mass arrests and was followed by what remains the longest running trial in the history of Namibia, dubbed the Caprivi treason trial.
Following years of court proceedings, 49 accused were acquitted after successfully applying for release under Section 174 of the Criminal Procedure Act that authorises the courts to discharge an accused at the end of the State’s case if sufficient evidence to convict was not produced.
Mwamba was one of the treason accused released.
According to judge Nkabinde, the High Court was correct in finding that on a balance of probabilities, Mwamba failed to show that the prosecutor general lacked reasonable and probable cause and had acted with malice in initiating the prosecution against him. She further said that evaluation of the evidence as a whole showed that the prosecutor general had a reasonable and probable cause to initiate the proceedings against him. As such, she said, the cross-appeal of Mwamba stands to be dismissed.
With regard to the decision of the High Court that the prosecutor general is liable for damages for malicious continued prosecution, the appeal judges said the High Court misdirected itself by “conflating the test for successful claim based on malicious prosecution with that applied in criminal matters to establish the guilt or otherwise of an accused person.
“In the context of the legal principle of innocent until proven guilty, the prosecutor general, justified in believing that the respondent (Mwamba) was guilty owed the public a constitutional duty under Article 88 to fulfil her prosecutorial role, conscientiously mounting evidence she believed would be sufficient with the aim of proving the guilt of the respondent beyond reasonable doubt for a reasonable court to convict,” the judges found.
“It was therefore reasonable for a dutiful prosecutor general, based on the seriousness of the charges in this matter, to go the full length, sustaining the prosecution with the aim of exhausting the available evidence in order to prove ethe case against the respondent beyond reasonable doubt.”
She did not make any order as to costs but referred the matter back to the High Court to determine whether or not the respondent should be awarded constitutional damages, if he is so advised or inclined.
Mwamba was represented by Reinhardt Tötemeyer assisted by Uanisa Hengari instructed by Kangueehi and Kavendji Inc.
Government was represented by advocate Ishmael Semenya assisted by Nixon Marcus, on instructions from the Government Attorney.