WINDHOEK – An inmate that was released on a review judgment, but remained behind bars for one and a half years got a massive shot in the arm when Judge Harald Geier awarded him damages in the amount of N$450 000 yesterday.
Walter Hoeseb was sentenced in the Outjo Magistrate’s Court to three years for extortion, obstructing the course of justice and fraud on December 02, 2009.
He pleaded to charges that he attempted to defraud Johannes Koen, the former Outjo CEO who was recently sent to prison for arson.
Hoeseb and two accomplices claimed to be employed in the Ministry of Justice and promised Koen that they could get rid of the arson charges against him in exchange for N$50 000.
After his conviction and sentence, Hoeseb’s docket was then sent to the High Court on January 22, 2010 for automatic review.
Automatic review is statutory when an accused is undefended in a magistrate’s court.
On September 24, 2010, Review Judge Alfred Siboleka set aside the three-year sentence and replaced it with a fine of N$2 000 or twelve months imprisonment plus a further two years wholly suspended for five years on condition that he is not convicted of a similar offence during the period of suspension.
The sentence was antedated to December 02, 2009 which meant that Hoeseb was entitled to immediate release from prison.
The Registrar of the High Court, who is responsible for processing criminal reviews and appeals from sentenced prisoners and informing prison authorities and prisoners alike, failed to do her duty and Hoeseb served out the rest of his initial sentence until his release on December 01, 2011.
In his lawsuit against his jailers, Hoeseb claimed that he was unlawfully detained for a period of 14 months and six days at the Walvis Bay Prison and deprived of his liberty in breach of Article 7 of the Namibian Constitution.
He said that he only became aware of the High Court review judgment when the office of the ombudsman informed him on April 19, 2013 about it. He claimed constitutional and general damages in the amount of N$1 million plus N$70 000 loss of income. The other defendants were the Officer in Charge of the Walvis Bay Prison, the Commissioner-General of Correctional Services, the Minister of Safety and Security and the Minister of Justice as the second to fifth respondents respectively. Only the Registrar and the Minister of Justice admitted liability, but for an amount far less that what was claimed.
In a special plea that was rejected by the court the defendants represented by Advocate Khupe claimed that under the Prison’s Act Hoeseb’s civil action is barred against each and all defendants. In their plea on the merits of the case they say that they only admit the plaintiff’s identity and put him to prove his occupation.
Khupe explained to the court that the “mistake” happened after an official in the office of the Registrar “misplaced” the review application file and results in her office. He said that the “negligent omission” resulted in the failure to get to Walvis Bay Prison and secure the plaintiff’s immediate release from prison.
According to the respondents, the Registrar herself was not at fault, but instead a staff member in her office. All of the rest of the respondents denied any liability in the matter as they had no knowledge of the contents of the review judgment, it is stated, and the second respondent, the Officer in Charge at Walvis Bay Prison in particular denied that he had the duty to make enquiries about review and appeal proceedings. Since the review results were never communicated to him the continued detention of the plaintiff was permitted by law, it was stated. The second to fourth respondents being the Officer in Charge of the Walvis Bay Prison, the Commissioner-General of Correctional Services, the Minister of Safety and Security all relied on the Prisons Act to claim indemnity. The section states “The State, the Minister, the Commissioner, an officer in charge, a prison member, a staff member in the Ministry of Prisons and Correctional Services or a person referred to in section 39(2), 108(2) or 110(3) shall not be liable in respect of anything done bona fide under this Act.”
Judge Geier ordered that Hoeseb who was represented by Advocate George Coleman on instruction from MB De Klerk and Associates be awarded N$450 000 in general damages and dismissed his claim of N$70 000 for loss of income. He also awarded costs for one instructing and one instructed counsel to Hoeseb.