ABSOLUTION FROM THE INSTANCE – PROCEDURE AND REQUIREMENTS 

Doeseb vs Minister of Home Affairs, Safety and Security NAHCMD (10 March 2023)

The plaintiff instituted proceedings against the defendants for malicious prosecution, alternatively, that his dignity was infringed upon and violated; his common law rights and Article 8 (dignity) rights were violated by members of the Namibian Police Force and/or the Office of the Prosecutor General as a result of which he suffered loss in the amount of N$ 700 000.00. He claimed that as a result of this wrongful and unlawful instigation of charges against him, he was maliciously prosecuted without a prima facie case for assault with intent to do grievous bodily harm. 

The defendants defended the action and admitted that the plaintiff was arrested, but denied that the plaintiff was arrested without reasonable suspicion or probable cause as the plaintiff was suspected to have assaulted another person. The defendants further pleaded that the plaintiff was already in detention as a sentenced inmate, and that his detention would have continued even in the absence of the aforementioned arrest. The defendants furthermore also pleaded that the criminal proceedings against the plaintiff were instituted by the seventh defendant and not the sixth defendant, and the plaintiff did not inform the sixth defendant that he did not perpetuate the criminal act. The defendants further pleaded that the matter against the plaintiff was not withdrawn, but the plaintiff was found not guilty and acquitted after the trial. At the end of the plaintiff’s case, the defendants applied for absolution from the instance. 

The High Court considered the application for absolution from the instance, and held that:

When absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there was evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find in favour of the plaintiff.

The plaintiff bears the onus to place facts as evidence of the nature of his wrongful and unlawful arrest, and subsequent detention and malicious prosecution by the Prosecutor General.

As regards the evidence that the plaintiff put before the Court, which was not evidence but conclusions of law, it was at best for the plaintiff an inference, a “secondary fact”, with the primary facts on which it depended omitted. The Court thus concluded that no Court acting carefully and reasonably will, in those circumstances, find for the plaintiff, or require the defendants to adduce evidence in rebuttal.

As a result, the defendants were absolved from the instance. 

DELICT – CLAIM OF MALICIOUS PROSECUTION – ABSOLUTION FROM THE INSTANCE WHERE NO PRIMA FACIE CASE IS PROVED

Sheehama v MHAISS NAHCNLD 4 November 2022

The plaintiff instituted an action for malicious prosecution and continuous prosecution against the Prosecutor General, claiming damages in the total amount of N$ 1 634.000. The cause of action arose from the fact that he was charged with assault by threat in that he threatened to kill his ex-wife. His ex-wife testified, and there were also text messages sent to her in which he threatened to kill her. He was arrested, denied bail, and detained whilst his trial was ongoing for a period of 12 months. He was eventually discharged in terms of section 174 of the CPA. He then instituted the action.

Before the High Court, the plaintiff testified that there was no reasonable and probable cause to arrest him, detain him, and maliciously prosecute and continue to prosecute him. As a result, he suffered damages in the total amount of N$ 1 634. 000. At the end of the plaintiff’s case, the defendants brought an application for absolution from the instance.

It was held that:

As far as claim 2, based on malicious and continuous prosecution was concerned, the third defendant pleaded that she had a reasonable and probable cause to prosecute and continue with the prosecution based on the evidence that was led by the complainant to the effect that the plaintiff threatened to kill her, and the text messages in which the plaintiff threatened to kill the complainant.

In respect of claim 3, it was clear from the particulars of the claim that what was pleaded to have resulted in a loss of income and termination of his employment contract was the alleged unlawful arrest and detention, and not the alleged malicious or continuous malicious prosecution as per the plaintiff’s testimony (witness statement).

Held further that, the claim for unlawful arrest prescribed and was not pursued. Therefore, if that claim prescribed, it follows that the claim for loss of income cannot prevail.

Held further that, on the issue of damages, the onus was on the plaintiff to lead evidence on how the damages were suffered and arrived at. That evidence was not provided before the court, and in the absence of that, the court could not entertain the claim for damages.

Held further that the plaintiff had not made out a prima facie case for the relief sought.

As a result, the application for absolution from the instance was granted.

DELICT – DEFAMATION – IT IS NOT AN ELEMENT OF A DELICT OF DEFAMATION THAT THE CHALLENGED STATEMENT BE FALSE

Hengari v NWR and Others (NAHCMD) 29 July 2022 

The plaintiff instituted action against the first defendant, alleging that the first defendant published statements concerning her that were defamatory. At the end of the plaintiff’s case, the defendants applied for absolution from the instance. The Court dismissed the application insofar as it related to the claim of defamation (but granted certain ancillary relief), and held that:

Absolution from the instance may be granted if the plaintiff has failed to adduce evidence upon which a court could or might grant judgement in favour of the plaintiff.

The inquiry then is: ‘Is there evidence upon which the court ought to give judgement in favour of the plaintiff?

In order to ascertain whether the plaintiff has adduced evidence relating to all the elements of her claim, the starting point is to consider the elements of the delict of defamation, which is defined as the publication of a defamatory matter referring to a person:

(i) which is wrongful in that it infringes on his/her legally-protected right to good name or reputation and;

(ii) which is made with the intention to injure his/her good name or reputation.

It is trite law that a defamatory matter consists of words or conduct that tends to lower a person in the estimation of reasonable persons in society generally.

The elements which must be proved are therefore:

(i) the wrongful and,

(ii) intentional,

(iii) publication of,

(iv) a defamatory matter/statement(s),

(v) concerning the plaintiff.

 It is not an element of the delict of defamation that a statement be false, for it to be defamatory. Once published, it is presumed that the publication was both unlawful and intentional. 

The test is objective; the natural and ordinary meaning of the impugned statements and how a reasonable person would have understood the statement, and whether the meaning given to the statements is defamatory in the sense that it tends to lower the plaintiff in the estimation of right-thinking members of society generally.

It is trite law that defamatory statements include statements affecting moral character, imputing dishonesty, unethical or unprincipled behaviour reflecting on office, profession or occupation, or which expose a person to enmity, ridicule or contempt. 

Jarman v Morkel NAHCMD (1 July 2022)

The plaintiff instituted a claim on 21 February 2021 for arrears’ rental, alleged damage to property that amounted to N$ 42 000, as well ejectment of the first defendant from the premises of the plaintiff with immediate effect. The first defendant defended the action, and, in his plea, the first defendant did not deny the plaintiff’s claim, but denied that he caused any damage to the property. 

The first defendant pleaded that he acted on behalf of his mother, in terms of a special power of attorney. The first defendant instituted a counter-claim for set-off, whereby he claimed an amount of N$ 140 000 as interest, and the amount of N$ 420 000 for the outbuilding and land that was illegally fenced off. He stated that his mother, the second defendant, should not have sold the property as this was contrary to his late father’s will, and he would therefore wish to buy the property from the plaintiff. The first defendant further pleaded that that portion of land in question was not included as part of the immovable property sold to the plaintiff.

The plaintiff raised a special plea of locus standi on the grounds that the mother of the first defendant was not a party to the proceedings and as a result, the first defendant had no locus standi in respect of the counterclaims instituted by him. The plaintiff raised a second special plea of prescription in respect of both counterclaims. 

On the special pleas raised by the plaintiff, the first defendant approached the court for an order to join his mother, the second defendant, as a party to the proceedings, which was granted on 10 May 2021. The second defendant filed a plea and counterclaim similar to the one filed by the first defendant. The plaintiff’s plea of prescription in respect of the first counterclaim was upheld on 20 September 2021, and the special plea of prescription in respect of the second counterclaim was to be decided after hearing evidence during the trial. The parties filed a pre-trial report, and the matter proceeded to trial. At the close of the defendants’ case (plaintiffs in reconvention), the plaintiff’s legal representative indicated that the plaintiff wanted to bring an application for absolution from the instance, which the court had to decide on. 

The High Court considered the application and held that: 

The first defendant has no right, title, or interest in the matter and cannot set off the plaintiff’s claim against the counterclaim.

There was no evidence that the sales agreement did not include a specific portion of the Erf. The court could not find that there was encroachment by the plaintiff onto the land that belonged to either the second defendant or the owner of the adjacent business. 

No expert evidence was presented to prove the quantum regarding the second counterclaim.

Held further that, considering the evidence presented to the court, the special pleas on prescription and locus standi in respect of the first defendant must be upheld.

Held further that, the special plea on the second defendant’s second counterclaim had also prescribed and the special plea must be upheld.

As a result, the application for absolution from the instance on the defendant’s second counterclaim was granted with cost. 

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