Three judges of the Supreme Court yesterday set aside an award a Windhoek man received from the High Court for alleged unlawful arrest and detention.

After he was arrested and detained on a charge of robbery with aggravating circumstances, which the police could not prove, Thomas Inghangwe Ndjembo lodged a lawsuit against the government of Namibia as the employers of the police for compensation.

The High Court agreed with him and awarded him an award of N$20 000.
The government, however, appealed the decision and argued that although Ndjembo was arrested and detained, the police had a reasonable suspicion that he was involved in the robbery they were investigating. 
According to them, he was arrested for further investigation on a reasonable suspicion – and when they failed to establish a prima facie case against him, he was released.

According to Chief Justice Peter Shivute, who wrote the judgment in agreement in concurrence with Appeal Judge Dave Smuts and Acting Judge of Appeal Elton Hoff, the question that was to be determined is that there was reasonable grounds for the police to believe Ndjembo was involved in the crime.

“In deciding whether there were reasonable grounds for the police to arrest a suspect requires a balance to be struck between two competing public interests, namely: the need to guard against encroachment into the constitutional rights of suspects who may be subjected to arbitrary arrest or detention on the one hand and the need to ensure that crimes are effectively investigated on the other,” the judges remarked.

They went on to say that the test of whether a police officer reasonably suspects a person of having committed an offence is whether on an objective approach the police officer had reasonable grounds for the suspicion.
According to the appeal judges, the law provides ample scope for arrest for the purpose of further investigation and that a police officer has discretion whether or not to arrest for purposes of investigation.

They further said such discretion has to be exercised properly and is not unfettered but is subject to judicial oversight: a police officer who arrests a suspect arbitrarily but under the pretence of bringing him to justice runs the risk of being successfully sued for unlawful arrest and detention or malicious prosecution.

However, the judges said, on the facts of this case, the police exercised their discretion properly in that they had a reasonable suspicion for Ndjembo’s arrest – and when they failed to establish a prima facie case, they released him. 
They thus acted lawfully, the judges said, and set aside the decision of the High Court.  
- rrouth@nepc.com.na