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					SUMMARY                                                                        REPORTABLE


                                                                         CASE NO..:: A 292/2008
                                                                         CASE NO A 292/2008




IN THE HIGH COURT OF NAMIBIA



IIN THE MATTER BETWEEN::
  N THE MATTER BETWEEN
  N THE MATTER BETWEEN



EPHRAIM KAHORERE AND OTHERS v THE MINISTER OF HOME AFFAIRS AND
OTHERS


                                                                                      PARKER J
                                                                                      PARKER J

                                                                                2011 February 22


DELIICT -- ARREST AND DETENTIIION - WHERE ARREST AND DETENTIIION NOT IIIN DIIISPUTE -ONUS ON
DELICT ARREST AND DETENT ON - WHERE ARREST AND DETENT ON NOT N D SPUTE -ONUS ON
 EL CT      RREST AND DETENT ON      HERE ARREST AND DETENT ON NOT N D SPUTE          NUS ON

               DEFENDANT TO PROVE ARREST AND DETENTIION WERE LAWFUL
               DEFENDANT TO PROVE ARREST AND DETENTIO N WERE LAWFUL
               DEFENDANT TO PROVE ARREST AND DETENT ON WERE LAWFUL                    -PLAIIINTIIIFFS
                                                                                      -PLA NT FFS
                                                                                        LA NT FFS

               ARRESTED ON SUSPIICIION OF THEFT OF CATTLE
               ARRESTED ON SUSPIC IO N OF THEFT OF CATTLE
               ARRESTED ON SUSP C ON OF THEFT OF CATTLE              - COURT FIIINDIIING THAT ON
                                                                     - COURT F ND N G THAT ON
                                                                        OURT F ND NG THAT ON

               IINFORMATIION RECEIIVED,, WHIICH THE SECOND DEFENDANT ((A POLIICE OFFIICIIAL))
                IN FORMATIO N RECEIV ED WHIC H THE SECOND DEFENDANT A POLIC E OFFIC IA L
                 NFORMAT ON RECE VED WH CH THE SECOND DEFENDANT A POL CE OFF C AL

               REASONABLY BELIIEVED TO BE TRUE,, SECOND DEFENDANT REASONABLY SUSPECTED
               REASONABLY BELIE VED TO BE TRUE SECOND DEFENDANT REASONABLY SUSPECTED
               REASONABLY BEL EVED TO BE TRUE SECOND DEFENDANT REASONABLY SUSPECTED

               PLAIINTIIFFS TO HAVE COMMIITTED A SCHEDULE 1 OFFENCE IIN TERMS OF S.. 39,, READ
               PLAIN TIF FS TO HAVE COMMIT TED A SCHEDULE 1 OFFENCE IN TERMS OF S 39 READ
               PLA NT FFS TO HAVE COMM TTED A CHEDULE       OFFENCE N TERMS OF S          READ

               WIT H S 40 OF THE CRIM IN AL PROCEDURE ACT 1977 AC T NO 51 OF 1977 CPA)
               WIITH S.. 40,, OF THE CRIIMIINAL PROCEDURE ACT,, 1977 ((ACT NO.. 51 OF 1977)) ((CPA)
               W TH S         OF THE R M NAL ROCEDURE CT                CT O       OF

               - CONSEQUENTLY,, COURT FIIINDIIING THAT THE SECOND DEFENDANT HAS DIIISCHARGED
               - CONSEQUENTLY COURT F ND N G THAT THE SECOND DEFENDANT HAS D SCHARGED
                  ONSEQUENTLY    OURT F ND NG THAT THE SECOND DEFENDANT HAS D SCHARGED

               ONUS CAST ON HIIM TO PROVE ARREST AND DETENTIION ARE LAWFUL..
               ONUS CAST ON HIM TO PROVE ARREST AND DETENTIO N ARE LAWFUL
               ONUS CAST ON H M TO PROVE ARREST AND DETENT ON ARE LAWFUL



DELIICT -- ARREST - ASSIIISTANCE OFFERED BY FIIIFTH DEFENDANT ((NON-POLIIICE OFFIIICIIIAL)) TO THE
DELICT
 EL CT     ARREST - ASS STANCE OFFERED BY F F TH DEFENDANT NON -POL CE OFF C AL TO THE
            RREST    SS STANCE OFFERED BY F FTH DEFENDANT NON POL CE OFF C AL TO THE

               SECOND DEFENDANT ((A POLIICE OFFIICIIAL)) AT SECOND DEFENDANT''S REQUEST IIN
               SECOND DEFENDANT A POLIC E OFFIC IA L AT SECOND DEFENDANT S REQUEST IN
               SECOND DEFENDANT A POL CE OFF C AL AT SECOND DEFENDANT S REQUEST N

               ARRESTIING THE PLAIINTIIFFS
               ARRESTIN G THE PLAIN TIF FS
               ARREST NG THE PLA NT FFS      - COURT FIIINDIIING THAT FIIIFTH DEFENDANT HAD A
                                             - COURT F ND N G THAT F FTH DEFENDANT HAD A
                                                OURT F ND NG THAT F FTH DEFENDANT HAD A

               STATUTORY DUTY IIN TERMS OF S..
               STATUTORY DUTY IN TERMS OF S
               STATUTORY DUTY N TERMS OF S          47 OF THE CPA TO GIIIVE SUCH ASSIIISTANCE
                                                    47 OF THE CPA TO G VE SUCH ASS STANCE
                                                       OF THE     TO G VE SUCH ASS STANCE

               -CONSEQUENTLY,, COURT FIIINDIIING FIIIFTH DEFENDANT NOT LIIIABLE..
               -CONSEQUENTLY COURT F ND NG F F TH DEFENDANT NOT L ABLE
                 ONSEQUENTLY    OURT F ND NG F FTH DEFENDANT NOT L ABLE

Delict - Malicious prosecution - What plaintiff must prove - Court applying elements set
                out in Akuake v Jansen van Rensburg 2009 (1) NR 403 ('the Akuake
- -




                 elements') - Plaintiffs averring that because the charge of stock theft had
                 been withdrawn in earlier proceedings and reinstated in subsequent
                 proceedings that meant the latter was done as a result of the 'instance' of
                 the fourth defendant and therefore the fourth defendant is liable - Court
                 holding that consideration of averment ought to be subjected to the
                 interpretation and application of Article 88 of the Namibian Constitution,
                 dealing with the power of the Prosecutor-General's power as to whether to
                 prosecute or not to prosecute in any individual case.


EVIIDENCE -- HEARSAY EVIIIDENCE - COURT CONFIIIRMIIING WHAT CONSTIIITUTES HEARSAY EVIIIDENCE -
EVIDENCE HEARSAY EV DENCE - COURT CONF RM N G WHAT CONST TUTES HEARSAY EV DENCE -
 V DENCE      EARSAY EV DENCE      OURT CONF RM NG WHAT CONST TUTES HEARSAY EV DENCE

                COURT HOLDIIING THAT STATEMENT MADE TO THE POLIIICE FORMIIING THE BASIIIS OF THE
                COURT HOLD N G THAT STATEMENT MADE TO THE POL CE FORM N G THE BAS S OF THE
                 OURT HOLD NG THAT STATEMENT MADE TO THE OL CE FORM NG THE BAS S OF THE

                POLIIICE REASONABLY SUSPECTIIING THE COMMIIISSIIION OF THE OFFENCE OF STOCK
                POL CE REASONABLY SUSPECT NG THE COMM SS ON OF THE OFFENCE OF STOCK
                 OL CE REASONABLY SUSPECT NG THE COMM SS ON OF THE OFFENCE OF STOCK

                THEFT BY THE PLAIN TIF FS NOT HEARSAY IF IN FORMATIO N IS PLACED BEFORE THE
                THEFT BY THE PLAIINTIIFFS NOT HEARSAY IIF IINFORMATIION IIS PLACED BEFORE THE
                THEFT BY THE PLA NT FFS NOT HEARSAY F NFORMAT ON S PLACED BEFORE THE

                COURT..
                COURT
                 OURT



HELD,, THAT WHERE IIIN A CASE IIIT IIIS AVERRED THAT PROSECUTIIION WAS CARRIIIED ON AT THE ''IIINSTANCE''
HELD THAT WHERE N A CASE T S AVERRED THAT PROSECUT ON WAS CARR ED ON AT THE NSTANCE
 ELD THAT WHERE N A CASE T S AVERRED THAT PROSECUT ON WAS CARR ED ON AT THE NSTANCE

OF THE DEFENDANT THE
OF THE DEFENDANT THE
OF THE DEFENDANT THE       COURT MUST SUBJECT THE CONSIIIDERATIIION OF THE AVERMENT TO THE
                           COURT MUST SUBJECT THE CONS D ERAT ON OF THE AVERMENT TO THE
                            OURT MUST SUBJECT THE CONS DERAT ON OF THE AVERMENT TO THE

IINTERPRETATIION AND APPLIICATIION OF
 IN TERPRETATIO N AND APPLIC ATIO N OF
  NTERPRETAT ON AND APPL CAT ON OF         ARTIIICLE 88 OF THE NAMIIIBIIIAN CONSTIIITUTIIION WHIIICH
                                           ART CLE 88 OF THE NAM B AN CONST TUT ON WH C H
                                            RT CLE      OF THE  AM B AN      ONST TUT ON WH CH

CONCERNS THE POWER OF THE
CONCERNS THE POWER OF THE
CONCERNS THE POWER OF THE         PROSECUTOR-GENERAL TO WHETHER TO PROSECUTE OR NOT TO
                                  PROSECUTOR -GENERAL TO WHETHER TO PROSECUTE OR NOT TO
                                   ROSECUTOR ENERAL TO WHETHER TO PROSECUTE OR NOT TO

PROSECUTE IIN ANY IINDIIVIIDUAL CASE..
PROSECUTE IN ANY IN DIV ID UAL CASE
PROSECUTE N ANY ND V DUAL CASE



HELD,, FURTHER THAT EVIIIDENCE IIIS HEARSAY AND IIINADMIIISSIIIBLE WHEN THE OBJECT OF THE EVIIIDENCE
HELD FURTHER THAT EV D ENCE S HEARSAY AND NADM SS B LE WHEN THE OBJECT OF THE EV DENCE
 ELD FURTHER THAT EV DENCE S HEARSAY AND NADM SS BLE WHEN THE OBJECT OF THE EV DENCE

IIS TO ESTABLIISH THE TRUTH OF WHAT IIS CONTAIINED IIN THE STATEMENT;; AND IIT IIS NOT HEARSAY AND
 IS TO ESTABLIS H THE TRUTH OF WHAT IS CONTAIN ED IN THE STATEMENT AND IT IS NOT HEARSAY AND
  S TO ESTABL SH THE TRUTH OF WHAT S CONTA NED N THE STATEMENT AND T S NOT HEARSAY AND

IIS ADMIISSIIBLE WHEN IIT IIS PROPOSED TO ESTABLIISH BY EVIIDENCE,, NOT THE TRUTH OF THE
 IS ADMIS SIB LE WHEN IT IS PROPOSED TO ESTABLIS H BY EVID ENCE NOT THE TRUTH OF THE
  S ADM SS BLE WHEN T S PROPOSED TO ESTABL SH BY EV DENCE NOT THE TRUTH OF THE

STATEMENT,, BUT THE FACT THAT IIT WAS MADE..
STATEMENT BUT THE FACT THAT IT WAS MADE
STATEMENT BUT THE FACT THAT T WAS MADE
- -




                                                           CASE NO.: A 292/2008




IN THE HIGH COURT OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA




In the matter between:


EPHRAIM KAHORERE
EPHRAIM KAHORERE                                            FIIRST PLAIINTIIFF
                                                            FIRST PLAINTIFF
                                                               RST LA NT FF

ISRAEL KAHORERE                                              Second Plaintiff
MANFRED TJIVAVA                                              Third Plaintiff




and


MINISTER OF HOME AFFAIRS
MINISTER OF HOME AFFAIRS                                    FIIRST DEFENDANT
                                                            FIRST DEFENDANT
                                                               RST EFENDANT


B JAN PETRUS BOOYSEN                                         Second Defendant
DETECTIVE SERGEANT VAN WYK                                   Third Defendant

AT VAN VUUREN                                                Fourth Defendant

JAN PIENAAR                                                  Fifth Defendant



CORAM:           PARKER J



Heard on:       2009 July 6-16; 2010 January 18-27, 2010 June 21-2 July; 2010

December 1-9

Delivered on:        2011 February 22


                                  JUDGMENT
                                  JUDGMENT


PARKER J: [1] In June 2001 the first plaintiff, second plaintiff and third plaintiff

were arrested on suspicion of having committed the offence of stock theft,

involving 45 head of cattle, the property of the fourth defendant. In the course of

their trial in the Gobabis Magistrates' court the charge against the plaintiffs was
- -




withdrawn in October the same year. Subsequent to that, in 2002 the plaintiffs

were served with criminal summons to reappear for trial on the selfsame stock

theft charge. In 2003 after the fourth defendant and a Rooinasie had testified the

plaintiffs were discharged in terms of s. 174 of the CPA. The plaintiffs instituted a

civil action against the first defendant, second defendant, third defendant, fourth

defendant and fifth defendant in which -




((1))
  1      THE FIIRST PLAIINTIIFF''S CLAIIM IIS FOR::
         THE FIR ST PLAIN TIF F S CLAIM IS FOR
         THE F RST PLA NT FF S CLA M S FOR


          (a)    unlawful arrest and detention, and
(b)       malicious prosecution

(2)       the second plaintiff's claim is for:

          (a)    unlawful arrest and detention, and
(b)       malicious prosecution

(3)       the third plaintiff's claim is for:

          (a)    unlawful arrest and detention,
(b)       malicious prosecution, and
(c)       assault




[[2]] THE PLAIIINTIIIFFS TESTIIIFIIIED ON THEIIIR OWN BEHALF;; NO OTHER WIIITNESSES WERE CALLED
  2 THE PLA NT FFS TEST F ED ON THE R OWN BEHALF NO OTHER W TNESSES WERE CALLED
       HE PLA NT FFS TEST F ED ON THE R OWN BEHALF NO OTHER W TNESSES WERE CALLED

TO TESTIIFY ON BEHALF OF ANY OF THE THREE PLAIINTIIFFS.. THE SECOND,, THIIRD AND FIIFTH
TO TESTIF Y ON BEHALF OF ANY OF THE THREE PLAIN TIF FS THE SECOND THIR D AND FIF TH
TO TEST FY ON BEHALF OF ANY OF THE THREE PLA NT FFS       HE SECOND TH RD AND F FTH

DEFENDANTS TESTIIFIIED.. THE SECOND DEFENDANT WAS THE ARRESTIING OFFIICER,, AND THE
DEFENDANTS TESTIF IE D THE SECOND DEFENDANT WAS THE ARRESTIN G OFFIC ER AND THE
DEFENDANTS TEST F ED HE SECOND DEFENDANT WAS THE ARREST NG OFF CER AND THE

THIIRD DEFENDANT WAS THE IINVESTIIGATIING OFFIICER OF THE STOCK THEFT CASE..
THIR D DEFENDANT WAS THE IN VESTIG ATIN G OFFIC ER OF THE STOCK THEFT CASE
TH RD DEFENDANT WAS THE NVEST GAT NG OFF CER OF THE STOCK THEFT CASE                           THE
                                                                                               THE
                                                                                                HE

FOURTH DEFENDANT WAS THE COMPLAIINANT IIN THE STOCK THEFT CASE,, AS AFORESAIID..
FOURTH DEFENDANT WAS THE COMPLAIN ANT IN THE STOCK THEFT CASE AS AFORESAID
FOURTH DEFENDANT WAS THE COMPLA NANT N THE STOCK THEFT CASE AS AFORESA D

THE FIIIFTH DEFENDANT WAS THE OWNER OF FARM MASIIINDE WHERE ALL THREE PLAIIINTIIIFFS
THE F FTH DEFENDANT WAS THE OWNER OF FARM MAS NDE WHERE ALL THREE PLA NT FFS
 HE F FTH DEFENDANT WAS THE OWNER OF ARM     AS NDE WHERE ALL THREE PLA NT FFS

WERE IINTERVIIEWED BY THE SECOND DEFENDANT DURIING THE WEE HOURS OF
WERE IN TERVIE WED BY THE SECOND DEFENDANT DURIN G THE WEE HOURS OF
WERE NTERV EWED BY THE SECOND DEFENDANT DUR NG THE WEE HOURS OF                           8 JUNE
                                                                                          8 JUNE
                                                                                             UNE

2001.. MR.. MAHERERO,, A POLIIICE OFFIIICIIIAL,, MRS.. TUHADALENIII,, ALSO A POLIIICE OFFIIICIIIAL,,
2001 MR MAHERERO A POL CE OFF C AL MRS TUHADALEN ALSO A POL CE OFF C AL
        R    AHERERO A POL CE OFF C AL            RS    UHADALEN ALSO A POL CE OFF C AL

AND
AND
AND     MR.. PODEWIIILTZ,, WHO WAS THE PUBLIIIC PROSECUTOR IIIN THE STOCK THEFT CASE
        MR PODEW LTZ WHO WAS THE PUBL C PROSECUTOR N THE STOCK THEFT CASE
         R    ODEW LTZ WHO WAS THE PUBL C PROSECUTOR N THE STOCK THEFT CASE

AGAIINST THE PLAIINTIIFFS IIN THE
AGAIN ST THE PLAIN TIF FS IN THE
AGA NST THE PLA NT FFS N THE             GOBABIIIS MAGIIISTRATES'' COURT,, TESTIIIFIIIED FOR THE
                                         GOBAB S MAG STRATES COURT TEST F ED FOR THE
                                          OBAB S MAG STRATES COURT TEST F ED FOR THE

DEFENCE..
DEFENCE
DEFENCE
- -




[3] I shall consider the claim of unlawful arrest and detention first. Since the fact

of arrest and detention is not disputed, the second defendant, who I find to have

effected the arrest and detention, bears the onus of proving that the arrest and

detention were lawful. (See Lombo v African National Congress 2002 (5) SA 668

(SCA); Saviour Ndala Tutalife and Others v Minister of Home Affairs and Another

Case Nos. I588/2008

AND I589/2008 UN REPORTED .)
AND I589/2008 ((UNREPORTED)).)
AND              NREPORTED




[4] Under this claim, I find that each plaintiff was arrested and detained by the

second defendant, a police official of the Namibia Police (NAMPOL), between the

evening of 6 June 2001 and the early morning the following day. It cannot be

disputed that since the arrest and detention were carried out by a NAMPOL official

in the context of the commission of the crime of stock theft allegedly committed by

the three plaintiffs, the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA)

comes into play. The question I must answer is therefore this: did the second

defendant have lawful reason to arrest and detain the plaintiffs within the

meaning of s. 39, read with s. 40, of the CPA? (Saviour Ndala Tutalife and Others v

Minister of Home Affairs and Another supra) In terms of s. 40 (1) (b) of the CPA the

second defendant had the power to arrest the plaintiffs without a warrant so long

as the second defendant reasonably suspected the plaintiffs to have committed the

crime of stock theft which is a Schedule 1 offence in terms of the CPA.




[[5]] WHAT WAS THE BASIIIS OF THE SECOND DEFENDANT''S REASONABLY SUSPECTIIING THE
  5 WHAT WAS THE BAS S OF THE SECOND DEFENDANT S REASONABLY SUSPECT NG THE
       HAT WAS THE BAS S OF THE SECOND DEFENDANT S REASONABLY SUSPECT NG THE

PLAIINTIIFFS TO HAVE COMMIITTED THE SAIID OFFENCE? IN THIIS REGARD,,
PLAIN TIF FS TO HAVE COMMIT TED THE SAID OFFENCE ? IN THIS REGARD
PLA NT FFS TO HAVE COMM TTED THE SA D OFFENCE       N TH S REGARD                II MAKE THE
                                                                                    MAKE THE
                                                                                    MAKE THE

FOLLOWIING FACTUAL FIINDIINGS..
FOLLOWIN G FACTUAL FIN DIN GS
FOLLOW NG FACTUAL F ND NGS         THE SECOND DEFENDANT REQUESTED,, AND OBTAIIINED,,
                                   THE SECOND DEFENDANT REQUESTED AND OBTA NED
                                    HE SECOND DEFENDANT REQUESTED AND OBTA NED

PERMIISSIION FROM HIIS SUPERIIOR OFFIICER,,
PERMIS SIO N FROM HIS SUPERIO R OFFIC ER
PERM SS ON FROM H S SUPER OR OFF CER          DETECTIIIVE IINSPECTOR IISAACS,, TO ASSIIIST IIIN
                                              DETECT VE NSPECTOR SAACS TO ASS ST N
                                               ETECT VE NSPECTOR SAACS TO ASS ST N

IINVESTIIGATIING THE THEFT OF
 IN VESTIG ATIN G THE THEFT OF
  NVEST GAT NG THE THEFT OF       45 HEAD OF CATTLE,, THE PROPERTY OF THE FOURTH
                                  45 HEAD OF CATTLE THE PROPERTY OF THE FOURTH
                                     HEAD OF CATTLE THE PROPERTY OF THE FOURTH
- -




DEFENDANT WHIICH THEFT THE FOURTH DEFENDANT HAD REPORTED TO NAMPOL.. FROM
DEFENDANT WHIC H THEFT THE FOURTH DEFENDANT HAD REPORTED TO NAMPOL FROM
DEFENDANT WH CH THEFT THE FOURTH DEFENDANT HAD REPORTED TO            ROM

THE AFOREMENTIIONED JOHANNES ROOIINASIIE,, THE SECOND DEFENDANT OBTAIINED WHAT
THE AFOREMENTIO NED JOHANNES ROOIN ASIE THE SECOND DEFENDANT OBTAIN ED WHAT
THE AFOREMENT ONED OHANNES OO NAS E THE SECOND DEFENDANT OBTA NED WHAT

HE CONSIIDERED TO BE USEFUL IINFORMATIION,, WHIICH HE BELIIEVED TO BE REASONABLY
HE CONSID ERED TO BE USEFUL IN FORMATIO N WHIC H HE BELIE VED TO BE REASONABLY
HE CONS DERED TO BE USEFUL NFORMAT ON WH CH HE BEL EVED TO BE REASONABLY

TRUE,, THAT WOULD ASSIIST HIIM IIN HIIS IINVESTIIGATIION.. THE SECOND DEFENDANT PREPARED
TRUE THAT WOULD ASSIS T HIM IN HIS IN VESTIG ATIO N THE SECOND DEFENDANT PREPARED
TRUE THAT WOULD ASS ST H M N H S NVEST GAT ON HE SECOND DEFENDANT PREPARED

A STATEMENT BASED ENTIIRELY ON THE IINFORMATIION HE HAD OBTAIINED FROM ROOIINASIIE..
A STATEMENT BASED ENTIR ELY ON THE IN FORMATIO N HE HAD OBTAIN ED FROM ROOIN ASIE
A STATEMENT BASED ENT RELY ON THE NFORMAT ON HE HAD OBTA NED FROM OO NAS E

ACCORDIIING TO THAT IIINFORMATIIION,, FOUR PERSONS WERE IIINVOLVED.. ROOIIINASIIIE
ACCORD NG TO THAT NFORMAT ON FOUR PERSONS WERE NVOLVED ROO NAS E
 CCORD NG TO THAT NFORMAT ON FOUR PERSONS WERE NVOLVED                OO NAS E


 ID ENTIF IE D TWO OF THEM BY NAME I.E THE FIR ST AND SECOND PLAIN TIF FS AND A THIR D
IIDENTIIFIIED TWO OF THEM BY NAME,, II.E.. THE FIIRST AND SECOND PLAIINTIIFFS,, AND A THIIRD
  DENT F ED TWO OF THEM BY NAME        E THE F RST AND SECOND PLA NT FFS AND A TH RD

WHOM HE SAIID HE COULD IIDENTIIFY IIF HE SAW HIIM.. THE FOURTH SUSPECT WAS UNKNOWN
WHOM HE SAID HE COULD ID ENTIF Y IF HE SAW HIM THE FOURTH SUSPECT WAS UNKNOWN
WHOM HE SA D HE COULD DENT FY F HE SAW H M           HE FOURTH SUSPECT WAS UNKNOWN

TO ROOIINASIIE;; BUT ROOIINASIIE SAIID HE KNEW WHERE THEY ALL RESIIDED IIN AROAMS..
TO ROOIN ASIE BUT ROOIN ASIE SAID HE KNEW WHERE THEY ALL RESID ED IN AROAMS
TO OO NAS E BUT OO NAS E SA D HE KNEW WHERE THEY ALL RES DED N ROAMS




[6] Following upon the information so received and which he reasonably believed

to be true, as aforesaid, the second defendant proceeded to Aroams where

Rooinasie pointed out to the second defendant the residences of the plaintiffs; the

fourth suspect was not at home. Between the night of 6 June 2001 and early

morning of 7 June 2001, as aforesaid, the second defendant arrested the plaintiffs

at Aroams. Mr. Kasuto, counsel for the plaintiffs, sought to take issue with the fact

that Rooinasie could not have pointed out the plaintiffs to the second defendant

because according to Mr. Kasuto the plaintiffs did not see any such pointing out.

This submission cannot take the plaintiffs' case anywhere further than where it is.

For security reasons, Rooinasie was made to wear a balaclava at the material time

to conceal his identity. I accept, as the second defendant testified, that this is

standard police practice designed to protect persons who give such information to

the

Police in an ongoing police investigation. It is my view therefore that the police

practice in casu does not detract from the factual finding I have made that it was

upon information received from Rooinasie that the second defendant proceeded

not only to Aromas but also to the residence of each of plaintiff at Aroams; the
- -




fourth person was not at home, as I have already said.




[7] Mr. Kasuto sought strenuously and with great zeal to impugn the admissibility

of the information by Rooinasie on the basis that it constituted hearsay evidence.

Mr. Kasuto is palpably wrong. It is trite law that evidence is hearsay and

inadmissible when the object of the evidence is to establish the truth of what is

contained in the statement. 'It is not hearsay and is admissible when it is

proposed to establish by evidence, not the truth of the statement, but the fact that

it was made' (Subramaniam Public Prosecutor [1956] 1 WLR 965 (Privy Council) at

969, approved by the Supreme Court of Canada in R v Abbey (1982) 138 DLR (3d)

202) In the instant case, I accept as credible the second defendant's testimony

that he reasonably suspected that a crime had been committed upon information

he had received from the fourth defendant. On that basis, I will add that under

those circumstances as a police official the second defendant had a duty to

investigate the commission of the crime. By a parity of reasoning, I accept the

second defendant's testimony that based on the information he had received from

Rooinasie he reasonably suspected that the plaintiffs had committed the offence of

stock theft of the fourth defendant's 45 head of cattle; hence his arresting

plaintiffs.

[8] Thus, from the aforegoing, I find that the second defendant arrested the

plaintiffs because he reasonably suspected them of having committed a Schedule

1 offence, to wit, theft of stock. In this regard it must be remembered that the

word 'reasonable' and its derivations like 'reasonably' have in law the prima facie

meaning of reasonableness in regard to those existing circumstances of which the

actor, called upon to act reasonably, knows or ought to know. (Re Solicitor [1945] 1

All ER 445 (Court of Appeal)) It follows that on the facts and in the circumstances

of the instant case, I find that that the second defendant reasonably suspected the
- -




plaintiffs to have committed the offence of stock theft of the fourth defendant's 45

head of cattle cannot be faulted. Additionally, I find that the second defendant

informed each plaintiff in a language he understood the ground for arresting him

in fulfillment of the requirement in Article 11 (2) of the Namibian Constitution.

Consequently, I hold that the arrest of each plaintiff is lawful.




[[9]] WHAT ABOUT THE DETENTIIION? AFTER HE HAD ARRESTED THE PLAIIINTIIIFFS AT AROAMS
  9 WHAT ABOUT THE DETENT ON ? AFTER HE HAD ARRESTED THE PLA NT FFS AT AROAMS
       HAT ABOUT THE DETENT ON     FTER HE HAD ARRESTED THE PLA NT FFS AT ROAMS

WIITH ASSIISTANCE OF THE FIIFTH DEFENDANT,, AS TREATED IINFRA,, THE SECOND DEFENDANT,,
WIT H ASSIS TANCE OF THE FIF TH DEFENDANT AS TREATED IN FRA THE SECOND DEFENDANT
W TH ASS STANCE OF THE F FTH DEFENDANT AS TREATED NFRA THE SECOND DEFENDANT


WIT H THE ASSIS TANCE OF THE FOURTH DEFENDANT IN THE FORM OF PROVID IN G PRIV ATE
WIITH THE ASSIISTANCE OF THE FOURTH DEFENDANT IIN THE FORM OF PROVIIDIING PRIIVATE
W TH THE ASS STANCE OF THE FOURTH DEFENDANT N THE FORM OF PROV D NG PR VATE

TRANSPORT TO THE POLIICE,, TRANSPORTED THE PLAIINTIIFFS TO THE FARM MASIINDE WHERE
TRANSPORT TO THE POLICE TRANSPORTED THE PLAIN TIF FS TO THE FARM MASIN DE WHERE
TRANSPORT TO THE OL CE TRANSPORTED THE PLA NT FFS TO THE ARM         AS NDE WHERE


THE SECOND DEFENDANT QUESTIO NED THE PLAIN TIF FS BEFORE TAKIN G THE PLAIN TIF FS TO
THE SECOND DEFENDANT QUESTIIONED THE PLAIINTIIFFS BEFORE TAKIING THE PLAIINTIIFFS TO
THE SECOND DEFENDANT QUEST ONED THE PLA NT FFS BEFORE TAK NG THE PLA NT FFS TO

GOBABIIIS POLIIICE STATIIION.. II ACCEPT AS PLAUSIIIBLE AND REASONABLE THE SECOND
GOBAB S POL CE STAT ON
 OBAB S    OL CE    TAT ON        ACCEPT AS PLAUS BLE AND REASONABLE THE SECOND
                                  ACCEPT AS PLAUS BLE AND REASONABLE THE SECOND

DEFENDANT''S EXPLANATIION THAT THE POLIICE MADE USE OF PRIIVATE TRANSPORT BECAUSE
DEFENDANT S EXPLANATION THAT THE POLIC E MADE USE OF PRIV ATE TRANSPORT BECAUSE
DEFENDANT S EXPLANAT ON THAT THE OL CE MADE USE OF PR VATE TRANSPORT BECAUSE

THERE WAS AT THE MATERIIAL TIIME A SCARCIITY OF POLIICE MOTOR VEHIICLES.. I DO NOT SEE
THERE WAS AT THE MATERIA L TIM E A SCARCIT Y OF POLIC E MOTOR VEHIC LES I DO NOT SEE
THERE WAS AT THE MATER AL T ME A SCARC TY OF OL CE MOTOR VEH CLES           DO NOT SEE

ANYTHIING UNREASONABLE OR UNFAIIR OR WRONG IIN THAT.. I ALSO ACCEPT AS REASONABLE
ANYTHIN G UNREASONABLE OR UNFAIR OR WRONG IN THAT I ALSO ACCEPT AS REASONABLE
ANYTH NG UNREASONABLE OR UNFA R OR WRONG N THAT         ALSO ACCEPT AS REASONABLE

AND PLAUSIIBLE THE SECOND DEFENDANT''S EXPLANATIION AS TO WHY HE DECIIDED TO TAKE
AND PLAUSIB LE THE SECOND DEFENDANT S EXPLANATIO N AS TO WHY HE DECID ED TO TAKE
AND PLAUS BLE THE SECOND DEFENDANT S EXPLANAT ON AS TO WHY HE DEC DED TO TAKE


THE PLAIN TIF FS TO
THE PLAIINTIIFFS TO
THE PLA NT FFS TO


Farm Masinde to question the plaintiffs there instead of taking them straight away

to the Gobabis Police station from Aroams. The second defendant's explanation is,

verbatim et literatim, that -



                .... AT THAT STAGE WE BELIIIEVED THAT,, WE WIIILL GET SOME MORE IIINFORMATIIION FROM
                     AT THAT STAGE WE BEL EVED THAT WE W LL GET SOME MORE NFORMAT O N FROM
                     AT THAT STAGE WE BEL EVED THAT WE W LL GET SOME MORE NFORMAT ON FROM

              THE SUSPECTS WHEN WE ARE QUESTIO NIN G THEM FOR LOCATIO N OF THE STOLEN
              THE SUSPECTS WHEN WE ARE QUESTIIONIING THEM FOR LOCATIION OF THE STOLEN
              THE SUSPECTS WHEN WE ARE QUEST ON NG THEM FOR LOCAT ON OF THE STOLEN

              CATTLE AND IIT IIS VERY CONVENIIENT TO MOVE TO THIIS MASIINDE.. IIT IIS VERY CLOSE TO
              CATTLE AND IT IS VERY CONVENIE NT TO MOVE TO THIS MASIN DE T IS VERY CLOSE TO
              CATTLE AND T S VERY CONVEN ENT TO MOVE TO TH S AS NDE T S VERY CLOSE TO

              AROAMS AND IIIT WAS HAVIIING FACIIILIIITIIIES WHIIICH WE CAN USE.. AND IIIF WE RECEIIIVE ANY
              AROAMS AND T WAS HAV N G FAC L T ES WH CH WE CAN USE AND F WE RECE VE ANY
               ROAMS AND T WAS HAV NG FAC L T ES WH CH WE CAN USE                 ND F WE RECE VE ANY

               IN FORMATIO N ABOUT THE WHEREABOUTS OF THE CATTLE WE CAN OPERATE FROM
              IINFORMATIION ABOUT THE WHEREABOUTS OF THE CATTLE WE CAN OPERATE FROM
                NFORMAT ON ABOUT THE WHEREABOUTS OF THE CATTLE WE CAN OPERATE FROM

              THERE TO TRY AND GET THE CATTLE '
              THERE,, TO TRY AND GET THE CATTLE..'
              THERE TO TRY AND GET THE CATTLE




I do not find anything untoward and sinister in what the Police did. In the end the
- -




plaintiffs were detained at the Gobabis Police station.




[[10]] II PASS TO CONSIIIDER THE CLAIIIM THAT THE FIIIFTH DEFENDANT ASSIIISTED IIIN THE ARREST
  10 PASS TO CONS DER THE CLA M THAT THE F FTH DEFENDANT ASS STED N THE ARREST
          PASS TO CONS DER THE CLA M THAT THE F FTH DEFENDANT ASS STED N THE ARREST

OF THE PLAIINTIIFFS AND THEREFORE HE IIS LIIABLE..
OF THE PLAIN TIF FS AND THEREFORE HE IS LIA BLE
OF THE PLA NT FFS AND THEREFORE HE S L ABLE           II FAIIIL TO SEE HOW THE ASSIIISTANCE
                                                         FA L TO SEE HOW THE ASS STANCE
                                                         FA L TO SEE HOW THE ASS STANCE

GIIVEN TO THE SECOND DEFENDANT BY THE FIIFTH DEFENDANT,, AT THE REQUEST OF THE
GIV EN TO THE SECOND DEFENDANT BY THE FIF TH DEFENDANT AT THE REQUEST OF THE
G VEN TO THE SECOND DEFENDANT BY THE F FTH DEFENDANT AT THE REQUEST OF THE

SECOND DEFENDANT,, IIN ARRESTIING THE PLAIINTIIFFS CONSTIITUTES DELIICTUAL LIIABIILIITY ON
SECOND DEFENDANT IN ARRESTIN G THE PLAIN TIF FS CONSTIT UTES DELIC TUAL LIA BIL IT Y ON
SECOND DEFENDANT N ARREST NG THE PLA NT FFS CONST TUTES DEL CTUAL L AB L TY ON

THE PART OF THE FIIFTH DEFENDANT,, AS MR.. KASUTO ARGUED.. IN TERMS OF S.. 47 OF THE
THE PART OF THE FIF TH DEFENDANT AS MR KASUTO ARGUED IN TERMS OF S 47 OF THE
THE PART OF THE F FTH DEFENDANT AS     R    ASUTO ARGUED N TERMS OF S         OF THE

CPA EVERY PRIIIVATE ADULT MALE OF AN AGE NOT BELOW 16 YEARS AND NOT EXCEEDIIING
CPA EVERY PR VATE ADULT MALE OF AN AGE NOT BELOW 16 YEARS AND NOT EXCEED NG
    EVERY PR VATE ADULT MALE OF AN AGE NOT BELOW      YEARS AND NOT EXCEED NG

60 YEARS IIIS OBLIIIGED BY LAW,, WHEN CALLED UPON TO DO SO BY A POLIIICE OFFIIICIIIAL,, TO
60 YEARS S OBL GED BY LAW WHEN CALLED UPON TO DO SO BY A POL CE OFF C AL TO
   YEARS S OBL GED BY LAW WHEN CALLED UPON TO DO SO BY A POL CE OFF C AL TO


ASSIS T SUCH POLIC E OFFIC IA L IN NOT ONLY ARRESTIN G A PERSON BUT ALSO IN DETAIN IN G A
ASSIIST SUCH POLIICE OFFIICIIAL IIN NOT ONLY ARRESTIING A PERSON BUT ALSO IIN DETAIINIING A
ASS ST SUCH POL CE OFF C AL N NOT ONLY ARREST NG A PERSON BUT ALSO N DETA N NG A

PERSON SO ARRESTED;; AND SUCH ADULT MALE FAIILS TO SO ASSIIST A POLIICE OFFIICIIAL AT
PERSON SO ARRESTED AND SUCH ADULT MALE FAIL S TO SO ASSIS T A POLIC E OFFIC IA L AT
PERSON SO ARRESTED AND SUCH ADULT MALE FA LS TO SO ASS ST A POL CE OFF C AL AT

THE PAIIN OF PENAL SANCTIIONS,, UNLESS THE ADULT MALE SHOWS SUFFIICIIENT CAUSE FOR
THE PAIN OF PENAL SANCTIO NS UNLESS THE ADULT MALE SHOWS SUFFIC IE NT CAUSE FOR
THE PA N OF PENAL SANCT ONS UNLESS THE ADULT MALE SHOWS SUFF C ENT CAUSE FOR

FAIILIING TO RENDER SUCH ASSIISTANCE.. THE EVIIDENCE IIS SUFFIICIIENT THAT THE SECOND
FAIL IN G TO RENDER SUCH ASSIS TANCE THE EVID ENCE IS SUFFIC IE NT THAT THE SECOND
FA L NG TO RENDER SUCH ASS STANCE       HE EV DENCE S SUFF C ENT THAT THE SECOND


DEFENDANT ASKED THE FIF TH DEFENDANT FOR SUCH ASSIS TANCE AND THE FIF TH
DEFENDANT ASKED THE FIIFTH DEFENDANT FOR SUCH ASSIISTANCE AND THE FIIFTH
DEFENDANT ASKED THE F FTH DEFENDANT FOR SUCH ASS STANCE AND THE F FTH

DEFENDANT OBLIIGED AS HE WAS UNDER A STATUTORY DUTY,, AS I SAIID PREVIIOUSLY,, TO SO
DEFENDANT OBLIG ED AS HE WAS UNDER A STATUTORY DUTY AS I SAID PREVIO USLY TO SO
DEFENDANT OBL GED AS HE WAS UNDER A STATUTORY DUTY AS SA D PREV OUSLY TO SO

DO.. ACCORDIINGLY,,
DO ACCORDIN GLY
DO    CCORD NGLY


I come to the inevitable conclusion that Mr. Kasuto's argument on the claim is

without any merit whatsoever.




[[11]] FOR ALL THE AFOREGOIIING,, II HOLD THAT THE SECOND RESPONDENT HAS DIIISCHARGED
  11 FOR ALL THE AFOREGO NG HOLD THAT THE SECOND RESPONDENT HAS D SCHARGED
        OR ALL THE AFOREGO NG        HOLD THAT THE SECOND RESPONDENT HAS D SCHARGED


THE ONUS CAST ON HIM TO SHOW THAT THE ARREST AND DETENTIO N OF THE PLAIN TIF FS
THE ONUS CAST ON HIIM TO SHOW THAT THE ARREST AND DETENTIION OF THE PLAIINTIIFFS
THE ONUS CAST ON H M TO SHOW THAT THE ARREST AND DETENT ON OF THE PLA NT FFS

ARE LAWFUL.. CONSEQUENTLY,, THE CLAIIMS OF UNLAWFUL ARREST AND DETENTIION OF ALL
ARE LAWFUL CONSEQUENTLY THE CLAIM S OF UNLAWFUL ARREST AND DETENTIO N OF ALL
ARE LAWFUL    ONSEQUENTLY THE CLA MS OF UNLAWFUL ARREST AND DETENT ON OF ALL

PLAIINTIIFFS FAIIL..
PLAIN TIF FS FAIL
PLA NT FFS FA L




[12] I now proceed to deal with the plaintiffs' claim for malicious prosecution. In

virtue of the rule in Hollington v F Hewthorn and Co Ltd [1943] 2 All ER 35 (Court
- -




of Appeal) and Land Securities plc v Westminster City Council [1993] 4 All ER 124

(Chancery Division, both cited with approval by this Court in Martha Cecilia Van

Wyk v Tshoopala Martin Ambata Case No. I 1769/2004 (Unreported), any evidence

adduced in the plaintiffs' criminal trial as proof of certain facts tending to

establish the liability of the defendants in the present civil proceedings is

irrelevant. The only aspect of the said criminal trial that has relevance in the

present proceedings is whether there has been a termination of the criminal trial

in relation to the claim of malicious prosecution (i.e. element (d) in the lettering

presentation in the next paragraph).




[13] As respects the claim of malicious prosecution, each plaintiff must according

to Akuake v Jansen van Rensburg 2009 (1) NR 403, per Damaseb JP, prove in

relation to him that -



              ''((III))   THAT THE DEFENDANT ACTUALLY IN STIG ATED OR IN STIT UTED THE
                          THAT THE DEFENDANT ACTUALLY IINSTIIGATED OR IINSTIITUTED THE
                          THAT THE DEFENDANT ACTUALLY NST GATED OR NST TUTED THE

                          criminal proceedings; (ii)   without reasonable and
                 probable cause; and that

                 (iii) it was actuated by an indirect or improper motive (malice); and
               (iv) that the proceedings were terminated in his favour; and that
(v)    he suffered loss and damage. '




RELYIIING ON THE AUTHORIIITIIIES DAMASEB JP STATED AT 404H::
RELY NG ON THE AUTHOR T ES DAMASEB JP STATED AT 404H
 ELY NG ON THE AUTHOR T ES AMASEB           STATED AT



               '. it is trite that the mere placing of information or facts before the police, as
               a result of which proceedings are instituted, is insufficient to found liability
               for malicious prosecution.'




DAMASEB JP WENT ON TO CIIITE WIIITH APPROVAL AT 405B MADNIIITSKY V ROSENBERG
DAMASEB JP WENT ON TO C TE W TH APPROVAL AT 405B MADN TSKY V ROSENBERG
 AMASEB    WENT ON TO C TE W TH APPROVAL AT           ADN TSKY V OSENBERG

1949 1 PH J5 TO THE EFFECT THAT,, ON THE OTHER HAND,,
1949 1 PH J5 TO THE EFFECT THAT ON THE OTHER HAND
             TO THE EFFECT THAT ON THE OTHER HAND
- -




               When an informer makes a statement to the police which is wilfully false in
               a material particular, but for which false information no prosecution would
               have been undertaken, such an informer "instigates" prosecution.'



[[14]] II RESPECTFULLY APPLY THE LAW AS PROPOSED BY DAMASEB JP IIIN AKUAKE V JANSEN
  14 RESPECTFULLY APPLY THE LAW AS PROPOSED BY DAMASEB JP N AKUAKE V JANSEN
          RESPECTFULLY APPLY THE LAW AS PROPOSED BY AMASEB        N KUAKE V ANSEN

VAN RENSBURG SUPRA;; IIT IIS GOOD LAW,, AND SO I ADOPT THE ELEMENTS SET OUT THEREIIN
VAN RENSBURG SUPRA IT IS GOOD LAW AND SO I ADOPT THE ELEMENTS SET OUT THEREIN
VAN ENSBURG SUPRA T S GOOD LAW AND SO ADOPT THE ELEMENTS SET OUT THERE N

((''THE AKUAKE ELEMENTS'')).. IIT FOLLOWS THAT IIIN ORDER TO SUCCEED,, THE PLAIIINTIIIFF MUST
    THE AKUAKE ELEMENTS
    THE KUAKE ELEMENTS          T FOLLOWS THAT N ORDER TO SUCCEED THE PLA NT FF MUST
                                T FOLLOWS THAT N ORDER TO SUCCEED THE PLA NT FF MUST

PROVE ALL THE ABOVE-MENTIIONED ELEMENTS;; THAT IIS TO SAY,, ALL THE ELEMENTS MUST
PROVE ALL THE ABOVE -MENTIO NED ELEMENTS THAT IS TO SAY ALL THE ELEMENTS MUST
PROVE ALL THE ABOVE MENT ONED ELEMENTS THAT S TO SAY ALL THE ELEMENTS MUST

EXIIST TOGETHER..
EXIS T TOGETHER
EX ST TOGETHER      THE FACTS AS II HAVE FOUND THEM TO EXIIIST IIIN CASU ARE THAT IIIN
                    THE FACTS AS HAVE FOUND THEM TO EX ST N CASU ARE THAT N
                     HE FACTS AS    HAVE FOUND THEM TO EX ST N CASU ARE THAT N

OCTOBER 2001 THE STOCK THEFT CHARGE WAS TEMPORARIIILY WIIITHDRAWN BY THE PUBLIIIC
OCTOBER 2001 THE STOCK THEFT CHARGE WAS TEMPORAR LY W THDRAWN BY THE PUBL C
 CTOBER      THE STOCK THEFT CHARGE WAS TEMPORAR LY W THDRAWN BY THE PUBL C

PROSECUTOR AGAIINST THE PLAIINTIIFFS.. SUBSEQUENT TO THAT,, IIN 2002,, THE PLAIINTIIFFS
PROSECUTOR AGAIN ST THE PLAIN TIF FS SUBSEQUENT TO THAT IN 2002 THE PLAIN TIF FS
PROSECUTOR AGA NST THE PLA NT FFS       UBSEQUENT TO THAT N            THE PLA NT FFS


WERE SERVED WIT H CRIM IN AL SUMMONS TO REAPPEAR FOR TRIA L ON THE SELFSAME STOCK
WERE SERVED WIITH CRIIMIINAL SUMMONS TO REAPPEAR FOR TRIIAL ON THE SELFSAME STOCK
WERE SERVED W TH CR M NAL SUMMONS TO REAPPEAR FOR TR AL ON THE SELFSAME STOCK

THEFT CHARGE.. IN 2003 AFTER THE FOURTH DEFENDANT AND ROOIINASIIE HAD TESTIIFIIED
THEFT CHARGE IN 2003 AFTER THE FOURTH DEFENDANT AND ROOIN ASIE HAD TESTIF IE D
THEFT CHARGE N         AFTER THE FOURTH DEFENDANT AND OO NAS E HAD TEST F ED

THE PLAIINTIIFFS WERE DIISCHARGED IIN TERMS OF S.. 174 OF THE CPA.. I SHALL RETURN TO
THE PLAIN TIF FS WERE DIS CHARGED IN TERMS OF S 174 OF THE CPA I SHALL RETURN TO
THE PLA NT FFS WERE D SCHARGED N TERMS OF S            OF THE         SHALL RETURN TO

THIIS EVENT IIN DUE COURSE..
THIS EVENT IN DUE COURSE
TH S EVENT N DUE COURSE


[15] In the instant case, I have no doubt in my mind that from the evidence, it is

clear that the fourth defendant merely placed information before Namibia Police.

When he did that he had no idea who the thief or thieves were. This view is

buttressed in no small measure by the fact that the fourth defendant, by word of

mouth and in Exh. XX (the 21 July 2001 issue of the Windhoek Observer

newspaper) offered a reward to anyone who would give information that would

lead not only to the arrest and conviction of the person or persons who had stolen

his cattle but also to the recovery of his 45 head of cattle. (Italicized for emphasis)

There is nothing malicious about a member of the public who has suffered a huge

loss of his property at the hands of thieves - as was the situation of the fourth

defendant - to place information of the fact of the theft with the Police and also

offer a reward for information that in his or her view -which I find to be good and

bona fide - would assist the Police in their investigation and, above all, would lead
- -




to the recovery of the lost item. Upon the authorities, I conclude that in the instant

case the mere placing of information before the police as a result of which

proceedings were instituted is insufficient to found liability for malicious

prosecution.




[[16]] IIT WAS THE PLAIIINTIIIFFS'' AVERMENT - IIINDEED,, A MAJOR PLANK THE PLAIIINTIIIFFS'' CASE,,
  16 T WAS THE PLA NT FFS AVERMENT - NDEED A MAJOR PLANK THE PLA NT FFS CASE
         T WAS THE PLA NT FFS AVERMENT            NDEED A MAJOR PLANK THE PLA NT FFS CASE

AS ARGUED WIITH GREAT VERVE BY MR KASUTO - THAT THE TRIIAL OF THE PLAIINTIIFFS ON
AS ARGUED WIT H GREAT VERVE BY MR KASUTO - THAT THE TRIA L OF THE PLAIN TIF FS ON
AS ARGUED W TH GREAT VERVE BY   R ASUTO THAT THE TR AL OF THE PLA NT FFS ON

THE SELFSAME STOCK THEFT CHARGE THAT RESUMED IIN
THE SELFSAME STOCK THEFT CHARGE THAT RESUMED IN
THE SELFSAME STOCK THEFT CHARGE THAT RESUMED N                   2003,, AFTER IIITS TEMPORARY
                                                                 2003 AFTER TS TEMPORARY
                                                                        AFTER TS TEMPORARY

WIITHDRAWAL IIN
WIT HDRAWAL IN
W THDRAWAL N        OCTOBER 2001,, WAS AS A RESULT OF THE FOURTH''S DEFENDANT''S
                    OCTOBER 2001 WAS AS A RESULT OF THE FOURTH S DEFENDANT S
                     CTOBER        WAS AS A RESULT OF THE FOURTH S DEFENDANT S

''IIINSIIISTENCE'';; AND SO,, THEREFORE,, ACCORDIIING TO THE PLAIIINTIIIFFS,, THE FOURTH
     NS STENCE
     NS STENCE       AND SO THEREFORE ACCORD NG TO THE PLA NT FFS THE FOURTH
                     AND SO THEREFORE ACCORD NG TO THE PLA NT FFS THE FOURTH

DEFENDANT IIS LIIABLE..
DEFENDANT IS LIA BLE
DEFENDANT S L ABLE          IIT BEHOVES ME TO SUBJECT THE CONSIIIDERATIIION OF THE
                              T BEHOVES ME TO SUBJECT THE CONS DERAT ON OF THE
                              T BEHOVES ME TO SUBJECT THE CONS DERAT ON OF THE

PLAIINTIIFFS'' AVERMENT TO THE IINTERPRETATIION AND APPLIICATIION OF ARTIICLE 88 OF THE
PLAIN TIF FS AVERMENT TO THE IN TERPRETATIO N AND APPLIC ATIO N OF ARTIC LE 88 OF THE
PLA NT FFS AVERMENT TO THE NTERPRETAT ON AND APPL CAT ON OF RT CLE               OF THE

NAMIIIBIIIAN CONSTIIITUTIIION IIIN TERMS OF WHIIICH IIIN THE EXERCIIISE OF THE POWER AS TO
NAM B AN CONST TUT ON N TERMS OF WH CH N THE EXERC SE OF THE POWER AS TO
 AM B AN      ONST TUT ON N TERMS OF WH CH N THE EXERC SE OF THE POWER AS TO

WHETHER TO PROSECUTE OR NOT TO PROSECUTE IIN ANY IINDIIVIIDUAL CASE,, THE
WHETHER TO PROSECUTE OR NOT TO PROSECUTE IN ANY IN DIV ID UAL CASE THE
WHETHER TO PROSECUTE OR NOT TO PROSECUTE N ANY ND V DUAL CASE THE

PROSECUTOR-GENERAL IIIS NOT SUBJECT TO THE CONTROL OF ANY OTHER PERSON OR
PROSECUTOR -GENERAL S NOT SUBJECT TO THE CONTROL OF ANY OTHER PERSON OR
 ROSECUTOR ENERAL S NOT SUBJECT TO THE CONTROL OF ANY OTHER PERSON OR

AUTHORIITY
AUTHORIT Y
AUTHOR TY    ((EX PARTE A--G,, IIN RE CONSTIIITUTIIIONAL RELATIIIONSHIIIP 1998 NR 282 ((SC))))..
               EX PARTE A G N RE CONST TUT ONAL RELAT ONSH P 1998 NR 282 SC
                X PARTE          N RE ONST TUT ONAL ELAT ONSH P

HAVIIING DONE THAT,, II HOLD THAT THE PLAIIINTIIIFFS'' CONTENTIIION IIIS GROUNDLESS..
HAV NG DONE THAT HOLD THAT THE PLA NT FFS CONTENT ON S GROUNDLESS
 AV NG DONE THAT HOLD THAT THE PLA NT FFS CONTENT ON S GROUNDLESS




[17] It follows from the aforegoing reasoning and conclusions that the fourth

defendant's conduct was not actuated by an indirect or improper motive (malice).

The fourth defendant's reasonable and probable cause in placing the information

before the police is that he had suffered a terrible loss, at the hands of unknown

thief or thieves, of his property, the right to which is guaranteed to him by Article

16 of the Namibian Constitution. His conduct was good and bona fide and lawful;

and so it cannot attract liability for malicious prosecution. I therefore I hold that

the plaintiffs have failed to sustain the claim of malicious prosecution; and so this

claim also fails.
- -




[[18]] II NOW PROCEED TO CONSIIIDER THE CLAIIIM OF ASSAULT WHIIICH IIIS LAIIID BY THE THIIIRD
  18 NOW PROCEED TO CONS DER THE CLA M OF ASSAULT WH CH S LA D BY THE TH RD
          NOW PROCEED TO CONS DER THE CLA M OF ASSAULT WH CH S LA D BY THE TH RD

PLAIINTIIFF ONLY..
PLAIN TIF F ONLY
PLA NT FF ONLY       UNDER THIIIS CLAIIIM,, THE COURT IIIS FACED WIIITH TWO MUTUALLY
                     UNDER TH S CLA M THE COURT S FACED W TH TWO MUTUALLY
                      NDER TH S CLA M THE        OURT S FACED W TH TWO MUTUALLY

DESTRUCTIIVE VERSIIONS ON EIITHER SIIDE OF THE SUIIT..
DESTRUCTIV E VERSIO NS ON EIT HER SID E OF THE SUIT
DESTRUCT VE VERS ONS ON E THER S DE OF THE SU T                THAT BEIIING THE CASE II MUST
                                                               THAT BE NG THE CASE MUST
                                                                HAT BE NG THE CASE      MUST


FOLLOW THE APPROACH THAT HAS BEEN BEATEN BY THE AUTHORIT IE S IN DEALIN G WIT H
FOLLOW THE APPROACH THAT HAS BEEN BEATEN BY THE AUTHORIITIIES IIN DEALIING WIITH
FOLLOW THE APPROACH THAT HAS BEEN BEATEN BY THE AUTHOR T ES N DEAL NG W TH

SUCH EVENTUALIITY;; THAT IIS TO SAY,, THE PROPER APPROACH IIS FOR THE COURT TO APPLY
SUCH EVENTUALIT Y THAT IS TO SAY THE PROPER APPROACH IS FOR THE COURT TO APPLY
SUCH EVENTUAL TY THAT S TO SAY THE PROPER APPROACH S FOR THE OURT TO APPLY


 IT S MIN D NOT ONLY TO THE MERIT S AN DEMERIT S OF THE TWO MUTUALLY DESTRUCTIV E
IITS MIIND NOT ONLY TO THE MERIITS AN DEMERIITS OF THE TWO MUTUALLY DESTRUCTIIVE
  TS M ND NOT ONLY TO THE MER TS AN DEMER TS OF THE TWO MUTUALLY DESTRUCT VE


VERSIO NS BUT ALSO THEIR PROBABIL IT IE S AND IT IS ONLY AFTER SO APPLYIN G IT S MIN D
VERSIIONS BUT ALSO THEIIR PROBABIILIITIIES AND IIT IIS ONLY AFTER SO APPLYIING IITS MIIND
VERS ONS BUT ALSO THE R PROBAB L T ES AND T S ONLY AFTER SO APPLY NG TS M ND

THAT THE
THAT THE
THAT THE   COURT WOULD BE JUSTIIIFIIIED IIIN REACHIIING THE CONCLUSIIIONS AS TO WHIIICH
           COURT WOULD BE JUST F ED N REACH NG THE CONCLUS ONS AS TO WH CH
            OURT WOULD BE JUST F ED N REACH NG THE CONCLUS ONS AS TO WH CH


OPIN IO N TO ACCEPT AND WHIC H TO REJECT SE E HAROLD SCHMID T T /A PRESTIG E HOME
OPIINIION TO ACCEPT AND WHIICH TO REJECT.. ((SEE HAROLD SCHMIIDT T/A PRESTIIGE HOME
OP N ON TO ACCEPT AND WH CH TO REJECT         EE AROLD CHM DT T A REST GE OME

IINNOVATIIIONS V HEIIITA 2006 ((2)) NR 555 AT
  NNOVAT ONS V HE TA 2006 2 NR 555 AT
  NNOVAT ONS V E TA                        AT


559D.) Additionally, from the authorities it also emerges that where the onus rests

on the plaintiff and there are two mutually destructive versions, as aforesaid, the

plaintiff can only succeed if the plaintiff satisfied the Court on a preponderance of

probabilities that the plaintiff's version is true and accurate and therefore

acceptable, and that the version on the opposite side is false or mistaken and

should, therefore, be rejected. (See National Employers' General Insurance Co. Ltd v

Jagers 1984 (4) SA 437 (E); Stellenbosch Farmers' Winery Group Ltd and another v

Martell et Cie and Others 2003 (1) SA 11 (SCA); Shakusheka and Another

v Minister of Home Affairs 2009 (2) NR 524; U v Minister of Education, Sports and

Culture 2006 (1) NR 168.) Jones J put it succinctly this way in Mabona and

Another v Minister of Law and Order and Others 1988 (2) SA

654 (SE) at 662 C-F:



               THE UPSHOT IIIS THAT II AM FACED WIIITH TWO CONFLIIICTIIING VERSIIIONS,, ONLY ONE OF
               THE UPSHOT S THAT AM FACED W TH TWO CONFL CT NG VERS ONS ONLY ONE OF
                HE UPSHOT S THAT AM FACED W TH TWO CONFL CT NG VERS ONS ONLY ONE OF

               WHIICH CAN BE CORRECT..
               WHIC H CAN BE CORRECT
               WH CH CAN BE CORRECT        THE ONUS IIIS ON EACH PLAIIINTIIIFF TO PROVE ON A
                                           THE ONUS S ON EACH PLA NT F F TO PROVE ON A
                                            HE ONUS S ON EACH PLA NT FF TO PROVE ON A

               PREPONDERANCE OF PROBABIILIITY THAT HER VERSIION IIS THE TRUTH..
               PREPONDERANCE OF PROBABIL IT Y THAT HER VERSIO N IS THE TRUTH
               PREPONDERANCE OF PROBAB L TY THAT HER VERS ON S THE TRUTH             THIIIS ONUS IIIS
                                                                                     TH S ONUS S
                                                                                      H S ONUS S

               DIS CHARGED IF THE PLAIN TIF F CAN SHOW BY CREDIB LE EVID ENCE THAT HER VERSIO N
               DIISCHARGED IIF THE PLAIINTIIFF CAN SHOW BY CREDIIBLE EVIIDENCE THAT HER VERSIION
               D SCHARGED F THE PLA NT FF CAN SHOW BY CRED BLE EV DENCE THAT HER VERS ON
- -




               IIS THE MORE PROBABLE AND ACCEPTABLE VERSIION..
               IS THE MORE PROBABLE AND ACCEPTABLE VERSIO N
                 S THE MORE PROBABLE AND ACCEPTABLE VERS ON             THE CREDIIIBIIILIIITY OF THE
                                                                        THE CRED B L TY OF THE
                                                                         HE CRED B L TY OF THE

               WIT NESSES AND THE PROBABIL IT Y OR IM PROBABIL IT Y OF WHAT THEY SAY SHOULD NOT
               WIITNESSES AND THE PROBABIILIITY OR IIMPROBABIILIITY OF WHAT THEY SAY SHOULD NOT
               W TNESSES AND THE PROBAB L TY OR MPROBAB L TY OF WHAT THEY SAY SHOULD NOT

               BE REGARDED AS SEPARATE ENQUIIRIIES TO BE CONSIIDERED PIIECEMEAL..
               BE REGARDED AS SEPARATE ENQUIR IE S TO BE CONSID ERED PIE CEMEAL
               BE REGARDED AS SEPARATE ENQU R ES TO BE CONS DERED P ECEMEAL              THEY ARE
                                                                                         THEY ARE
                                                                                          HEY ARE

               PART OF A SIN GLE IN VESTIG ATIO N IN TO THE ACCEPTABIL IT Y OR OTHERWIS E OF A
               PART OF A SIINGLE IINVESTIIGATIION IINTO THE ACCEPTABIILIITY OR OTHERWIISE OF A
               PART OF A S NGLE NVEST GAT ON NTO THE ACCEPTAB L TY OR OTHERW SE OF A

               PLAIINTIIFF''S VERSIION,, AN IINVESTIIGATIION WHERE QUESTIIONS OF DEMEANOUR AND
               PLAIN TIF F S VERSIO N AN IN VESTIG ATIO N WHERE QUESTIO NS OF DEMEANOUR AND
               PLA NT FF S VERS ON AN NVEST GAT ON WHERE QUEST ONS OF DEMEANOUR AND

               IIMPRESSIION ARE MEASURE AGAIINST THE CONTENT OF A WIITNESS''S EVIIDENCE,, WHERE
               IM PRESSIO N ARE MEASURE AGAIN ST THE CONTENT OF A WIT NESS S EVID ENCE WHERE
                 MPRESS ON ARE MEASURE AGA NST THE CONTENT OF A W TNESS S EV DENCE WHERE

               THE IM PORTANCE OF ANY DIS CREPANCIE S OR CONTRADIC TIO NS ARE ASSESSED AND
               THE IIMPORTANCE OF ANY DIISCREPANCIIES OR CONTRADIICTIIONS ARE ASSESSED AND
               THE MPORTANCE OF ANY D SCREPANC ES OR CONTRAD CT ONS ARE ASSESSED AND

               WHERE A PARTIC ULAR STORY IS TESTED AGAIN ST FACTS WHIC H CANNOT BE DIS PUTED
               WHERE A PARTIICULAR STORY IIS TESTED AGAIINST FACTS WHIICH CANNOT BE DIISPUTED
               WHERE A PART CULAR STORY S TESTED AGA NST FACTS WH CH CANNOT BE D SPUTED

               AND AGAIINST THE IINHERENT PROBABIILIITIIES,, SO THAT AT THE END OF THE DAY ONE
               AND AGAIN ST THE IN HERENT PROBABIL IT IE S SO THAT AT THE END OF THE DAY ONE
               AND AGA NST THE NHERENT PROBAB L T ES SO THAT AT THE END OF THE DAY ONE

               CAN SAY WIT H CONVIC TIO N THAT ONE VERSIO N IS MORE PROBABLE AND SHOULD BE
               CAN SAY WIITH CONVIICTIION THAT ONE VERSIION IIS MORE PROBABLE AND SHOULD BE
               CAN SAY W TH CONV CT ON THAT ONE VERS ON S MORE PROBABLE AND SHOULD BE

               ACCEPTED,, AND THAT THEREFORE THE OTHER VERSIION IIS FALSE AND MAY BE
               ACCEPTED AND THAT THEREFORE THE OTHER VERSIO N IS FALSE AND MAY BE
               ACCEPTED AND THAT THEREFORE THE OTHER VERS ON S FALSE AND MAY BE

               REJECTED WIITH SAFETY
               REJECTED WIT H SAFETY
               REJECTED W TH SAFETY          ((NATIIIONAL EMPLOYERS'' GENERAL IINSURANCE CO LTD V
                                               NAT O NAL EMPLOYERS GENERAL N SURANCE CO LTD V
                                                AT ONAL    MPLOYERS    ENERAL NSURANCE    O TD V

               JAGERS 1984 ((4)) SA 437 ((E))))..''
               JAGERS 1984 4 SA 437 E
                AGE RS


That is the manner in which I approach the determination of the third plaintiff's

claim of assault.




[[19]] IIN HIIIS PARTIIICULARS OF CLAIIIM,, THE THIIIRD PLAIIINTIIIFF ALLEGES THAT ON 7 JUNE 2001
  19 N H S PART CULARS OF CLA M THE TH RD PLA NT FF ALLEGES THAT ON 7 JUNE 2001
         N H S PART CULARS OF CLA M THE TH RD PLA NT FF ALLEGES THAT ON                  UNE

AT FARM MASIINDE THE SECOND DEFENDANT HIIT HIIM WIITH HIIS RIIGHT FIIST TWIICE ON HIIS
AT FARM MASIN DE THE SECOND DEFENDANT HIT HIM WIT H HIS RIG HT FIS T TWIC E ON HIS
AT ARM   AS NDE THE SECOND DEFENDANT H T H M W TH H S R GHT F ST TW CE ON H S

FACE AND HEAD,, KNOCKIING HIIM DOWN MORE THAN ONCE AND ALSO BURNED HIIM WIITH A
FACE AND HEAD KNOCKIN G HIM DOWN MORE THAN ONCE AND ALSO BURNED HIM WIT H A
FACE AND HEAD KNOCK NG H M DOWN MORE THAN ONCE AND ALSO BURNED H M W TH A

PRODDER.. THE THIIRD PLAIINTIIFF ALLEGES FURTHER THAT THE FIIFTH DEFENDANT KIICKED
PRODDER THE THIR D PLAIN TIF F ALLEGES FURTHER THAT THE FIF TH DEFENDANT KIC KED
PRODDER    HE TH RD PLA NT FF ALLEGES FURTHER THAT THE F FTH DEFENDANT K CKED

HIIM AND THREW HIIM IINTO A RESERVOIIR,, FULL OF WATER,, AND ALSO BURNED HIIM WIITH A
HIM AND THREW HIM IN TO A RESERVOIR FULL OF WATER AND ALSO BURNED HIM WIT H A
H M AND THREW H M NTO A RESERVO R FULL OF WATER AND ALSO BURNED H M W TH A

PRODDER..
PRODDER
PRODDER     THE SECOND DEFENDANT AND THE FIIIFTH DEFENDANT DENY THAT THEY
            THE SECOND DEFENDANT AND THE F FTH DEFENDANT DENY THAT THEY
             HE SECOND DEFENDANT AND THE F FTH DEFENDANT DENY THAT THEY

ASSAULTED THE THIIRD DEFENDANT..
ASSAULTED THE THIR D DEFENDANT
ASSAULTED THE TH RD DEFENDANT




[20] I have carefully subjected the evidence on the claim of assault to the sort of

scrutiny referred to above in the authorities cited previously. At the outset I must

say that I find from the demeanour of the second defendant and the fifth

defendant that they created a very good impression. They did not equivocate or

prevaricate: they gave their answers to questions readily and without mental

reserve in an attempt to hide the truth. The same cannot be said for the third

plaintiff and indeed the first plaintiff who testified on behalf of the third plaintiff.
- -




For instance, the third plaintiff gave an improbable account of how he alleges the

fifth defendant pulled him and carried him away and mounted some structure of

steps while he carried the third plaintiff and threw the third plaintiff into a

reservoir that was full of water. What is even more improbable is the way the third

plaintiff described how the fifth defendant pushed the third plaintiff's head under

the reservoir's water - not once, but several times - until after some time later

when the fifth defendant pulled him out of the water and the fifth defendant, while

he carried the third plaintiff, descended the steps from the rim of the concrete

structure of the reservoir. The third plaintiff does not say whether he struggled to

free himself from the fifth defendant when the fifth defendant carried him up and

down the steps of the reservoir.




[[21]] THERE IIIS ALSO NO CREDIIIBLE EVIIIDENCE THAT THE FOURTH DEFENDANT BURNT THE
  21 THERE S ALSO NO CRED BLE EV DENCE THAT THE FOURTH DEFENDANT BURNT THE
        HERE S ALSO NO CRED BLE EV DENCE THAT THE FOURTH DEFENDANT BURNT THE

THIIRD PLAIINTIIFF WIITH A PRODDER.. IT IIS ALSO IIMPROBABLE THAT THE SECOND DEFENDANT
THIR D PLAIN TIF F WIT H A PRODDER IT IS ALSO IM PROBABLE THAT THE SECOND DEFENDANT
TH RD PLA NT FF W TH A PRODDER T S ALSO MPROBABLE THAT THE SECOND DEFENDANT

GAVE THE THIIRD PLAIINTIIFF A BLOW WIITH HIIS FIIST ON THE THIIRD PLAIINTIIFF''S LEFT EYE,,
GAVE THE THIR D PLAIN TIF F A BLOW WIT H HIS FIS T ON THE THIR D PLAIN TIF F S LEFT EYE
GAVE THE TH RD PLA NT FF A BLOW W TH H S F ST ON THE TH RD PLA NT FF S LEFT EYE

FELLIING THE THIIRD PLAIINTIIFF..
FELLIN G THE THIR D PLAIN TIF F
FELL NG THE TH RD PLA NT FF         THERE IIIS NO EVIIIDENCE ALIIIUENDE FROM,, FOR IIINSTANCE,,
                                    THERE S NO EV DENCE AL UENDE FROM FOR NSTANCE
                                     HERE S NO EV DENCE AL UENDE FROM FOR NSTANCE

PHYSIICAL IINJURIIES OR A MEDIICAL REPORT TO SUPPORT THE THIIRD PLAIINTIIFF''S VERSIION.. IN
PHYSIC AL IN JURIE S OR A MEDIC AL REPORT TO SUPPORT THE THIR D PLAIN TIF F S VERSIO N IN
PHYS CAL NJUR ES OR A MED CAL REPORT TO SUPPORT THE TH RD PLA NT FF S VERS ON N

THIIS REGARD,, I FIIND THAT THE MEDIICAL REPORT THAT WAS PRODUCED CANNOT ASSIIST THE
THIS REGARD I FIN D THAT THE MEDIC AL REPORT THAT WAS PRODUCED CANNOT ASSIS T THE
TH S REGARD F ND THAT THE MED CAL REPORT THAT WAS PRODUCED CANNOT ASS ST THE

COURT.. THE REPORT SIIIMPLY REFERS TO ''A REDNESS OF THE RIIIGHT EYEBALL'' OF THE THIIIRD
COURT THE REPORT S MPLY REFERS TO A REDNESS OF THE R GHT EYEBALL OF THE TH RD
 OURT HE REPORT S MPLY REFERS TO A REDNESS OF THE R GHT EYEBALL OF THE TH RD

PLAIINTIIFF;; THERE IIS NO MENTIION OF ANY OTHER ASPECT,, E..G.. THE MEDIICAL CAUSE OF THE
PLAIN TIF F THERE IS NO MENTIO N OF ANY OTHER ASPECT E G THE MEDIC AL CAUSE OF THE
PLA NT FF THERE S NO MENT ON OF ANY OTHER ASPECT E G THE MED CAL CAUSE OF THE

''REDNESS''.. ON THE CONTRARY,, THE THIIIRD DEFENDANT ((THE IIINVESTIIIGATIIING OFFIIICER)) AND
  REDNESS ON THE CONTRARY THE TH RD DEFENDANT THE NVEST GAT NG OFF CER AND
  REDNESS      N THE CONTRARY THE TH RD DEFENDANT THE NVEST GAT NG OFF CER AND

MR.. T.. MAHERERO ((OF THE GOBABIIIS POLIIICE STATIIION)) WHO TOOK DOWN A WARNIIING
MR T MAHERERO OF THE GOBAB S POL CE STAT ON WHO TOOK DOWN A WARN NG
 R        AHERERO OF THE    OBAB S OL CE TAT ON WHO TOOK DOWN A WARN NG

STATEMENT OF THE THIIRD PLAIINTIIFF ON 7 JUNE 2001 DIID NOT OBSERVE ANY IINJURIIES ON
STATEMENT OF THE THIR D PLAIN TIF F ON 7 JUNE 2001 DID NOT OBSERVE ANY IN JURIE S ON
STATEMENT OF THE TH RD PLA NT FF ON       UNE      D D NOT OBSERVE ANY NJUR ES ON

THE THIIRD PLAIINTIIFF.. MR.. MAHERERO WAS NOT CROSS-EXAMIINED ON HIIS TESTIIMONY,, AND
THE THIR D PLAIN TIF F MR MAHERERO WAS NOT CROSS -EXAMIN ED ON HIS TESTIM ONY AND
THE TH RD PLA NT FF       R    AHERERO WAS NOT CROSS EXAM NED ON H S TEST MONY AND

SO HIIS EVIIDENCE REMAIINED UNCHALLENGED AT THE CLOSE OF THE DEFENDANTS'' CASE..
SO HIS EVID ENCE REMAIN ED UNCHALLENGED AT THE CLOSE OF THE DEFENDANTS CASE
SO H S EV DENCE REMA NED UNCHALLENGED AT THE CLOSE OF THE DEFENDANTS CASE

FURTHERMORE,, SGT TUHADALENIII,, WHO WAS THE CHARGE OFFIIICE SERGEANT ON DUTY ON
FURTHERMORE SGT TUHADALEN WHO WAS THE CHARGE OFF CE SERGEANT ON DUTY ON
 URTHERMORE    GT UHADALEN WHO WAS THE CHARGE OFF CE SERGEANT ON DUTY ON

7 JUNE 2001 WHEN THE THIIIRD PLAIIINTIIIFF WAS BROUGHT TO THE GOBABIIIS POLIIICE STATIIION,,
7 JUNE 2001 WHEN THE TH RD PLA NT FF WAS BROUGHT TO THE GOBAB S POL CE STAT ON
   UNE      WHEN THE TH RD PLA NT FF WAS BROUGHT TO THE OBAB S OL CE TAT ON
- -




OBSERVED NO IINJURIIES ON THE THIIRD PLAIINTIIFF..
OBSERVED NO IN JURIE S ON THE THIR D PLAIN TIF F
OBSERVED NO NJUR ES ON THE TH RD PLA NT FF                   A FORTIIIORIII,, SGT TUHADALENIII
                                                             A FORT OR SGT TUHADALEN
                                                               FORT OR         GT  UHADALEN


QUESTIO NED ALL THE THREE PLAIN TIF FS TO ASCERTAIN FROM THEM IF THEY HAD ANY
QUESTIIONED ALL THE THREE PLAIINTIIFFS TO ASCERTAIIN FROM THEM IIF THEY HAD ANY
QUEST ONED ALL THE THREE PLA NT FFS TO ASCERTA N FROM THEM F THEY HAD ANY

COMPLAIINTS WHIICH SHE WOULD HAVE NOTED IIN THE CHARGE OFFIICE OCCURRENCE BOOK..
COMPLAIN TS WHIC H SHE WOULD HAVE NOTED IN THE CHARGE OFFIC E OCCURRENCE BOOK
COMPLA NTS WH CH SHE WOULD HAVE NOTED N THE HARGE FF CE CCURRENCE OOK

THE THIIIRD PLAIIINTIIIFF DIIID NOT REPORT ANY IIINJURIIIES OR ANY OTHER COMPLAIIINTS TO HER..
THE TH RD PLA NT FF D D NOT REPORT ANY NJUR ES OR ANY OTHER COMPLA NTS TO HER
 HE TH RD PLA NT FF D D NOT REPORT ANY NJUR ES OR ANY OTHER COMPLA NTS TO HER


[22] It is only the second plaintiff who testified that he saw the third plaintiff being

assaulted with a fist at Farm Masinde. That is highly improbable; he does not say

with any conviction how he could see that since he was not in the room where the

second defendant interviewed the third plaintiff. His evidence is too improbable

and it will be unsafe to rely on it, particularly if the second plaintiff's testimony is

viewed against the third plaintiff's changing-the-post versions of the alleged

assault. In the third plaintiff's statement to the police on 7 June 2001, around the

day of the alleged assault, the third plaintiff does not state that he was assaulted

at Aroams. And at Farm Masinde; the third plaintiff says that he was beaten

several times with fists on his chest and stomach. Furthermore, having weighed

the second plaintiff's evidence against the unassailable and credible evidence of

police officials Maherero and Tuhadaleni, I feel confident to reject as false the

second plaintiff's evidence on the point.




[[23]] THUS,, HAVIIING APPLIIIED MY MIIIND NOT ONLY TO THE MERIIITS AND DEMERIIITS OF THE TWO
  23 THUS HAV NG APPL ED MY M ND NOT ONLY TO THE MER TS AND DEMER TS OF THE TWO
        HUS HAV NG APPL ED MY M ND NOT ONLY TO THE MER TS AND DEMER TS OF THE TWO

MUTUALLY
MUTUALLY
MUTUALLY     DESTRUCTIIVE
             DESTRUCTIV E
             DESTRUCT VE       VERSIO NS
                               VERSIIONS
                               VERS ONS     RESPECTIN G
                                            RESPECTIING
                                            RESPECT NG    THE
                                                          THE
                                                          THE    CLAIM
                                                                 CLAIIM
                                                                 CLA M    OF
                                                                          OF
                                                                          OF   ASSAULT,,
                                                                               ASSAULT
                                                                               ASSAULT     AND
                                                                                           AND
                                                                                           AND


FURTHERMORE HAVIN G TAKEN IN TO ACCOUNT THE CREDIB IL IT Y OF THE WIT NESSES AND THE
FURTHERMORE HAVIING TAKEN IINTO ACCOUNT THE CREDIIBIILIITY OF THE WIITNESSES AND THE
FURTHERMORE HAV NG TAKEN NTO ACCOUNT THE CRED B L TY OF THE W TNESSES AND THE

PROBABIILIITY OR IIMPROBABIILIITY OF WHAT THEY SAY,,
PROBABIL IT Y OR IM PROBABIL IT Y OF WHAT THEY SAY
PROBAB L TY OR MPROBAB L TY OF WHAT THEY SAY              II FIIIND THAT THE VERSIIION OF THE
                                                             F ND THAT THE VERS ON OF THE
                                                             F ND THAT THE VERS ON OF THE

DEFENCE WIITNESSES IIS MORE PROBABLE AND SO I ACCEPT IIT AND THE VERSIION OF THE
DEFENCE WIT NESSES IS MORE PROBABLE AND SO I ACCEPT IT AND THE VERSIO N OF THE
DEFENCE W TNESSES S MORE PROBABLE AND SO ACCEPT T AND THE VERS ON OF THE

PLAIINTIIFF WIITNESSES IIS FALSE AND SO I REJECT IIT.. IT FOLLOWS THAT IIN MY JUDGMENT;; I
PLAIN TIF F WIT NESSES IS FALSE AND SO I REJECT IT IT FOLLOWS THAT IN MY JUDGMENT I
PLA NT FF W TNESSES S FALSE AND SO REJECT T T FOLLOWS THAT N MY JUDGMENT


FIN D THAT THE THIR D PLAIN TIF F HAS FAIL ED TO DIS CHARGE THE ONUS OF PROVIN G THAT
FIIND THAT THE THIIRD PLAIINTIIFF HAS FAIILED TO DIISCHARGE THE ONUS OF PROVIING THAT
F ND THAT THE TH RD PLA NT FF HAS FA LED TO D SCHARGE THE ONUS OF PROV NG THAT

THE THIIRD PLAIINTIIFF''S VERSIION IIS THE TRUTH.. CONSEQUENTLY,, I HOLD THAT THE THIIRD
THE THIR D PLAIN TIF F S VERSIO N IS THE TRUTH CONSEQUENTLY I HOLD THAT THE THIR D
THE TH RD PLA NT FF S VERS ON S THE TRUTH           ONSEQUENTLY     HOLD THAT THE TH RD

PLAIINTIIFF''S CLAIIM OF ASSAULT FAIILS..
PLAIN TIF F S CLAIM OF ASSAULT FAIL S
PLA NT FF S CLA M OF ASSAULT FA LS
- -




[24] On the issue of costs, it was Mr. Van Vuuren's submission that the plaintiffs'

claim should be dismissed with costs on the scale as between attorney and client.

It would appear Mr Kasuto simply prayed for costs. As respects Mr Van Vuuren's

submission; I do not think the conduct of the plaintiffs did reach the mark set by

the authorities, albeit it is my opinion that the plaintiffs were misguided in

instituting this action. In Willem Adrian van Rhyn NO v Namibia Motor Sports

Federation and Others Case No. A 36/2006 (Unreported) at pp. 21-2, I cited with

approval the principle of law that was applied in South African Bureau of

Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) where the respondents had

applied for costs on a scale as between attorney and client. There, at 592B-D,

Patel J had the following to say concerning the Court's discretion to award costs

on the scale as between attorney and client:




             ''CLEARLY THERE MUST BE GROUNDS FOR THE EXERCIIISE OF THE COURT''S DIIISCRETIIION
               CLEARLY THERE MUST BE GROUNDS FOR THE EXERC SE OF THE COURT S D SCRET ON
                LEARLY THERE MUST BE GROUNDS FOR THE EXERC SE OF THE OURT S D SCRET ON

             TO AWARD COSTS ON AN ATTORNEY AND CLIIENT SCALE.. SOME OF THE FACTORS WHIICH
             TO AWARD COSTS ON AN ATTORNEY AND CLIE NT SCALE SOME OF THE FACTORS WHIC H
             TO AWARD COSTS ON AN ATTORNEY AND CL ENT SCALE     OME OF THE FACTORS WH CH

             HAVE BEEN HELD TO WARRANT SUCH AN ORDER OF COSTS ARE:: THAT UNNECESSARY
             HAVE BEEN HELD TO WARRANT SUCH AN ORDER OF COSTS ARE THAT UNNECESSARY
             HAVE BEEN HELD TO WARRANT SUCH AN ORDER OF COSTS ARE THAT UNNECESSARY

             LIITIIGATIION SHOWS TOTAL DIISREGARD FOR THE OPPONENT''S RIIGHTS
             LIT IG ATIO N SHOWS TOTAL DIS REGARD FOR THE OPPONENT S RIG HTS
             L T GAT ON SHOWS TOTAL D SREGARD FOR THE OPPONENT S R GHTS               ((EBRAHIIIM V
                                                                                        EBRAH M V
                                                                                         BRAH M V

             EXCELS O R SHOPF T TERS AND FURN S HERS PTY LTD ) 1046 TPD 226 AT 236
             EXCELSIIIOR SHOPFIIITTERS AND FURNIIISHERS ((PTY)) LTD ((IIII) 1046 TPD 226 AT 236));;
              XCELS OR HOPF TTERS AND URN SHERS            TY    TD                      AT

             THAT THE OPPONENT HAS BEEN PUT IN TO UNNECESSARY TROUBLE AND EXPENSE BY
             THAT THE OPPONENT HAS BEEN PUT IINTO UNNECESSARY TROUBLE AND EXPENSE BY
             THAT THE OPPONENT HAS BEEN PUT NTO UNNECESSARY TROUBLE AND EXPENSE BY

             THE IN IT IA TIO N OF AN ABORTIV E APPLIC ATIO N IN RE ALLUVIA L CREEK LTD 1929 CPD
             THE IINIITIIATIION OF AN ABORTIIVE APPLIICATIION ((IN RE ALLUVIIAL CREEK LTD 1929 CPD
             THE N T AT ON OF AN ABORT VE APPL CAT ON N RE LLUV AL REEK TD

             532 AT 535));;
             532 AT 535
                 AT

             Mahomed Adam (Pty) Ltd v Barren 1958 (4) SA 507 (T) at 509B-C;
             Lemore v African Mutual Credit Association and another 1961 (1) SA 195 (C)
             at 199; Floridar Construction Co (SWA) (Pty) Ltd v Kries (supra at 878); ABSA
             Bank Ltd (Voklskas Bank Division) v SJ Due
             Toit & Sons Earthmovers (Pty) Ltd 1995 (3) SA 265 (C) at 268D-E);
             that the application is foredoomed to failure since it is fatally defective
             (Bodemer v Hechter (supra at 245D-F)); or that the litigant's conduct is
             objectionable, unreasonable, unjustifiable or oppressive.'
[25]   In the result I make the following orders:




       (1)   The first plaintiff's claim is dismissed with costs on the party and

             party scale; such costs to include costs occasioned by the
- -




             employment of two instructing counsel and one instructed counsel.



      (2)    The second plaintiff's claim is dismissed with costs on the party and

             party scale; such costs to include costs occasioned by the

             employment of two instructing counsel and one instructed counsel.



      (3)    The third plaintiff's claim is dismissed with costs on the party and

             party scale; such costs to include costs occasioned by the

             employment of two instructing counsel and one instructed counsel.




PARKER J
PARKER J
COUNSEL ON BEHALF OF THE PLAINTIFFS:                Adv E K Kasuto




Instructed by:                                E K Kasuto Legal Practitioners




COUNSEL ON BEHALF OF THE DEFENDANTS:                Adv. A Van Vuuren
Instructed by:
                                              The Government Attorney;
                                              Dr Weder, Kauta & Hoveka Inc.

				
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