18 February 2013

Namibia: Teacher Wins Case About Unlawful Arrest

THE Minister of Safety and security has been ordered to pay N$12 000 to a teacher to compensate him for being unlawfully arrested and detained by the police for four days.

Teacher Henok Iyambo spent 52 days in custody after being detained by the police on September 10 2009. Because 48 days of his time in custody followed on his first appearance in court and an order by a magistrate that he should remain in custody, the Minister of Safety and Security, as the minister responsible responsible for the Namibian Police, cannot be held liable for Iyambo's continued detention after his first appearance before the magistrate, Acting Judge Collins Parker ruled in a judgement delivered in the High Court in Windhoek last week.

Iyambo sued the minister for N$150 000 for having allegedly been arrested and detained unlawfully.

The minister's lawyer, Tinashe Chibwana, conceded that Iyambo's initial arrest and detention had been unlawful, but argued that once Iyambo had appeared in court and a magistrate had ordered that he should remain in custody, he was no longer being detained unlawfully.

Acting Judge Parker agreed with that argument.

On the day of his arrest two police officers picked Iyambo up at the school where he was working, supposedly because they wanted to check his cellphone to see if he had phoned someone the police were looking for in order to warn that person to avoid being arrested, Acting Judge Parker recounted the events in his judgement.

Iyambo was then taken to the Oshivelo Police Station, where he was placed in a holding cell, before he was taken to court four days later, which was on a Monday.

His appearance in court complied with the legal requirement that he had to appear in court within 48 hours after his arrest - the intervening weekend being excluded for the calculation of that time period - and once he had been brought before a magistrate and his continued detention was ordered the lawfulness, or not, of his arrest and previous detention became irrelevant, Acting Judge Parker stated, basing that finding on a previous decision of the High Court.

The magistrate exercised the judicial authority given to him in terms of the Constitution, and it cannot be argued that the minister, as a member of the executive arm of the State, should be held liable for the magistrate's exercise of his authority, Acting Judge Parker remarked.

The minister can also not be held accountable for what the prosecutor who asked for Iyambo's continued detention did during his appearance in court, he added.

As a teacher Iyambo occupies an important and respectable position in his community, and it is not far-fetched to say that his unlawful arrest and detention would have done some harm to his reputation, the judge reasoned.

The amount of N$150 000 which Iyambo claimed for damages was "exceedingly over the top", though, Acting Judge Parker said. He concluded that a damages award of N$12 000 would be reasonable and fair.

Iyambo was represented by Mbushandje Ntinda of the law firm Sisa Namandje & Co. Inc.

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