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:  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 [] 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 - -  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  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. [] 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  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.  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  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.  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  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. [] 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. [] 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. [] 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  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  2 All ER 35 (Court - - of Appeal) and Land Securities plc v Westminster City Council  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).  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.' [] 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  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. [] 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  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. - - [] 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. [] 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  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. [] 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  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. [] 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 - -  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.'  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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