Safety and security minister Albert Kawana and police chief Sebastian Ndeitunga are seeking a court order to rescind the default judgment which awarded N$800 000 to four students who were allegedly assaulted by law enforcement officers during a protest in 2018.
On 18 February 2020, High Court Judge Collins Parker, awarded a default judgment in favour of Jesaya Katamba (25), Iyaloo Ndafika Fillemon (28), Tuhafeni Kalola (26) and Paulus Amukoto (25). The court ordered the then minister of safety and security, Charles Namoloh, and Ndeitunga to pay a combined amount of N$800 000 to the students.
The students claimed they suffered abuse and assault at the hands of the police during a demonstration in August 2018.
The court granted a default judgment after Ndeitunga and Namoloh, through their lawyers, failed to timeously tender their appearance to defend their case, leaving the plaintiffs procedurally entitled to apply for a default judgement in terms of the law. The legal practitioners, on behalf of the government, also failed to show up at court.
In an affidavit, Ndeitunga and Namoloh’s lawyer Lucia Elishi from Government Legal Attorneys said government had at all times intended on defending the case and what transpired was not willful, nor was it intended to disregard the court and/or its processes.
She explained that there was a mix up with the case registration at their office, resulting in two cases being registered for one matter.
This resulted in the late filing of the notice of intent to oppose.
“Although I accept that my explanation is not perfect but only human error on my part, the delay was however not motivated by disregard of the honourable court and its processes,” said Elishi.
She said the matter is of national interest and as a result of the default judgement, several suits have been instituted against government with the same notion of “being assaulted by unknown members of the police or Namibian Defence Force and claiming damages”.
On the students’ particulars of claim, Elishi said they are vague and embarrassing on the ground that they were assaulted by unknown people who are employed by the safety and security ministry. They also do not state why Ndeitunga is liable to pay damages.
“The plaintiffs (students) cannot identify the persons who assaulted them. It is improbable for the first applicant (Namoloh) to plea to the allegations that the assault was committed by his members in the cause and scope of their employment,” said Elishi.
The group who are opposing the application with their lawyer Henry Shimutwikeni said government have no prospect of winning as they failed to give a proper explanation.
They were also late in filing the application – filing more than a year after the default judgement was given. Furthermore, it is unprocedural for the court to declare its own order as null and void.
Judge Herman Oosthuizen has postponed the matter to 29 November for case management.