Namibia: Ex-Detainee Scores Win Against PG

29 September 2020

A Lebanese national who sued a police officer and the prosecutor general after he spent more than seven years in jail on robbery and kidnapping charges which were later withdrawn has scored a partial win in his lawsuit in the Windhoek High Court.

The claim which Lebanese businessman Ali Moussa instituted against police officer Primus Amwaama, who arrested him at Katima Mulilo on a robbery charge in May 2007, was dismissed by acting judge Kobus Miller on Friday, but the judge also ruled that Moussa's claim against the prosecutor general for malicious prosecution succeeded.

Miller found that at the time of Moussa's arrest there was sufficient evidence from which it could be concluded that he had been involved in a robbery committed against a fellow Lebanese businessman at Katima Mulilo in May 2006.

However, the judge also found that the continued prosecution of Moussa from 2012, when the prosecutor handling his case was informed the complainant in the matter had returned to Lebanon, up to May 2015, when charges against Moussa were withdrawn, had been malicious.

With Moussa having succeeded with part of his claim, the case has now been postponed to 11 November to determine the way forward with the matter. In the next phase of the lawsuit the court would have to decide what amount in damages to award to Moussa.

Moussa sued Amwaama in his personal capacity, the PG and a Katima Mulilo resident, Martty Mbeha Mbukusa, who was previously an employee of Moussa and was due to be a witness in the robbery case, for a total amount of N$27,9 million.

Only Amwaama and the prosecutor general defended the case.

Moussa is claiming N$17,6 million in general damages over the humiliation, damage to his reputation and deprivation of freedom he says he suffered as a result of his arrest and the period of more than seven years he spent in jail, and N$10,3 million to compensate him for the income he says he lost and damage done to the business he was running at the time of his arrest over the years he was detained.

He claimed that Amwaama unlawfully arrested him on false charges in May 2007 and that the PG maliciously prosecuted him until the charges were withdrawn in May 2015.

Following his arrest, Moussa was kept in custody for more than seven years and seven months, until he was granted bail in an amount of N$5 000 in December 2014, after a successful appeal to the High Court.

In his judgement, Miller found that Amwaama was acting in his official, and not personal, capacity, when he arrested Moussa, and that in terms of the Police Act, Moussa's legal claim against him was filed late, as it was not launched within a year after the cause of action arose.

Miller also found that the prosecutor's conduct, when he kept the charges against Moussa pending after he had been informed in 2012 that the complainant had relocated to Lebanon and that it might be difficult for him to come back to Namibia, was malicious. After the prosecutor received that information, all reasonable hope that the trial would continue had disappeared, Miller remarked.

Moussa is being represented by lawyers Tuhafeni Muhongo and Frieda Kishi.

Amwaama and the PG have been represented by Eva Shifotoka and government lawyer Jabulani Ncube.

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