The Supreme Court has reversed another two High Court judgements in which it was ruled that the state's continuation with its prosecution in the main Caprivi high treason trial had been malicious.
In its latest two judgements on damages claims instituted by some of the men acquitted in the protracted high treason trial, the Supreme Court has now arrived at the same conclusions it reached in three previous appeals also flowing from the trial.
Overturning two judgements delivered in the Windhoek High Court in December 2017 and October 2018, respectively, the appeal court found that in the treason trial the prosecution had sufficient evidence at its disposal for it to believe in the guilt of former high treason accused Kennedy Simasiku Chunga and Simon Elvin Kauhano and to continue to prosecute them until they were found not guilty in February 2013.
In the High Court's judgements, judge Hannelie Prinsloo found that the continuation of the prosecution against Kauhano after November 2007 and against Chunga after February 2008 had been malicious, as the state should have known after those stages of the trial that it did not have further evidence implicating the two men in respect of the 278 charges on which they and more than 100 co-accused were tried.
In the two appeal judgements written by chief justice Peter Shivute, the Supreme Court found that the state had evidence in witness statements available against both Chunga and Kauhano, and that based on this evidence the prosecution team in the trial had an honest belief in the two men's guilt - although the trial judge found after the state had closed its case that the evidence was not sufficient to place Chunga and Kauhano on their defence.
The evidence available to the state's team in the trial "established reasonable and probable cause to maintain the prosecution", the chief justice stated in the court's judgement on Kauhano's claim to be compensated for damages he says he suffered as a result of having been prosecuted.
On Chunga's claim that the continuation of his prosecution had been malicious after the last witnesses that had been expected to implicate him gave their evidence without identifying him in court, the chief justice noted that during the hearing of his civil claim Chunga readily admitted that the people who mentioned his name in witness statements were referring to him.
The prosecution of Chunga and Kauhano was based on allegations that they had been involved in a plot to overthrow the government in the former Caprivi region and establish a separate state in the region.
Chief justice Shivute also remarked in his judgement on Chunga's case that not meeting the standard of proof to the satisfaction of the judge in the criminal trial "does not necessarily imply recklessness" on the part of the prosecution team, and it could not be said that the state acted recklessly in refusing to sever Chunga from the rest of the accused in the trial before the eventual end of the state's case.
With acting judges of appeal Yvonne Mokgoro and Bess Nkabinde agreeing with the chief justice, the Supreme Court referred remaining parts of Chunga's and Kauhano's damages claims, in which they allege that their constitutional rights were violated during their long detention and trial, back to the High Court to be decided.
Kauhano and Chunga were arrested near the end of August 1999 and in November 1999, respectively. Both spent more than 13 years in jail before they and 41 co-accused were discharged in February 2013.
Kauhano sued the government, prosecutor general and minister of safety and security for N$19,8 million after his discharge, while Chunga claimed damages of N$14,7 million.