10 July 2018

Namibia: Supreme Court Hears Malicious Prosecution Claim

Windhoek — The Namibian Supreme Court last week heard an appeal by the Prosecutor General against an award made to one of the men previously acquitted on treason charges.

Then Acting High Court Judge Philanda Christiaan granted Richwell Mahupelo the right claim damages from the PG for continued malicious prosecution in a judgment delivered in February last year. She dismissed his claim for malicious prosecution and unlawful detention, but upheld the alternative claim.

The PG lodged an appeal against the judgment and says the judge erred when she found that there was malice in the continued prosecution of Mahupelo.

Addressing Chief Justice Peter Shivute, Acting Justice of Appeal Fred Chomba and Lady Justice of Appeal Yvonne Mokgoro, the legal team of the PG consisting of Advocate Geoff Budlinger SC from South Africa, assisted by Advocate Nixon Marcus and lawyer Sisa Namandje argued that Judge Christiaan erred when she made that ruling.

According to Budlinger, the PG was within her rights to continue looking for evidence against Mahupelo after the case against him was closed. He said there simply was no basis for malice and the prosecution of Mahupelo was reasonable and with probable cause.

He said the claim by Mahupelo's defense team consisting of Advocate Andrew Corbett instructed by Clive Hengari, that the prosecution could have stopped the case against Mahupelo when they realised after May 2011 they have no case against him does not hold water.

Budlinger told the Supreme Court judges it was impossible for the prosecution team to have known at that stage who will be convicted and who will not as they depended on the doctrine of common purpose.

He further said the finding by Judge Christiaan, the PG's office could have instituted a review of the evidence they have presented at that stage was not only improbable, but impossible as the accused were many and the witnesses even more. "To have reviewed the case against each and every accused was an unbegun task," he told the court.

He asked the Supreme Court to dismiss the claim with costs including costs for one instructing and three instructed counsels.

Advocate Corbett informed the court while the prosecution of Mahupelo was initiated with reasonable and probable cause, a threshold must be set for the prosecution of an accused.

According to him, when the State realise during a trial it failed to prove its case, it has the duty to stop the prosecution and release an accused.

The notion that an accused has the prospect of an appeal or to apply for discharge at the end of the State's case is not fair in law, he said.

According to Corbett, the State cannot hide behind the quantity of accused and witnesses to justify their failure to serve justice.

He asked the court to dismiss the appeal with costs including the cost of one instructing and two instructed counsels.

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