Namibia’s highest court on Friday confirmed damages awarded by the High Court against the police for the harassment of a citizen by two rogue members of the force.
In a judgment delivered by appeal judge Elton Hoff in agreement with Chief Justice Peter Shivute and acting judge of appeal Theo Frank, the Supreme Court dismissed an appeal the Ministry of Safety and Security lodged against a judgment by Windhoek High Court judge Thomas Masuku awarding Bernhardt Lazarus damages of N$300 000 for malicious arrest and N$27 000 for loss of property. The court, however, declined to confirm damages of N$90 000 for loss of earnings saying that Lazarus failed to prove this.
“In assessing an appropriate award for damages in respect of a claim for unlawful arrest, this court considered that the respondent was unlawfully arrested in circumstances which indisputably impaired his dignity, that he was repeatedly arrested (on three occasions) and unlawfully deprived of his liberty; was harassed and his life was threatened,” the appeal judges found. The judges also upheld the High Court’s order that the two officers must convince the High Court why they should not be ordered to pay the cost of the matter in the High Court and the Supreme Court.
Judge Masuku found two police officers guilty of abusing their power in September 2017 and ordered them to pay the cost of the matter on an attorney and client scale. The two were found guilty of repeatedly arresting, shooting at the plaintiff and illegally impounding his vehicle after he reported a case of burglary at his bar in Katutura to the police. Judge Masuku found in September this year that the officers were guilty of “seriously abusing the powers given to them by law in good faith”.
Police sergeant Freddy Nghilinganye, and reservist Sackey Kokule subjected bar owner, Bernhardt Lazarus to harassment, deprivation of his liberty and his possessions after repeatedly arresting him for no reason. The ministry appealed the judgment.
In the appeal judgment, the appeal judges stated that the two police officers acted as if they were beyond any level of accountability and seriously abused their powers.
“The highhanded conduct of the police officers called for serious censure by this court,” they stated.
The judges further stated that in their mind, the award of N$300 000 for malicious arrest was justified as the complainant was repeatedly deprived of his liberty for 10 days. With regards to the claim for loss of property for $27 000, the judges said that the evidence submitted by Lazarus and his employee was not gainsaid in any manner. The judges further said that a suggestion that a bystander could have removed the money while the complainant was chased by the two officers would amount to speculation.
“There is simply no evidence to infer such a finding, they said and continued: There is simply no evidence that someone unknown could, during the process of removing the vehicle to the police office have stolen the money left by the respondent in his vehicle.
With regards to the claim for loss of income, the appeal judges found that Lazarus did not prove beyond a reasonable doubt that he indeed suffered such loss as claimed.
“In the absence of any substantial proof, the court cannot justify the award claimed,” they found.
Gerson Narib instructed by Loini Shikale represented Lazarus and the minister by Sisa Namandje instructed by the Government Attorneys.