Judge says trial delays, decade in custody not PG’s fault

Petrus Shoovaleka

A Windhoek resident who spent more than 10 years in jail before being found not guilty in a repeatedly delayed robbery trial has suffered a defeat in a lawsuit in which he sued the prosecutor general for more than N$11 million.

Petrus Shoovaleka’s prolonged detention was not arbitrary, but was in accordance with competent court orders, the Constitution and procedures established by law, judge Herman Oosthuizen concluded in his judgement on Shoovaleka’s claim against the prosecutor general (PG) at the end of last week.

Oosthuizen also found that delays and postponements that resulted in Shoovaleka spending ten and a half years in jail before he was acquitted were caused by “systemic factors”.

Although the numerous postponements of the case in which Shoovaleka was charged with four co-accused were time consuming, these were not unreasonable, the judge said as well.

Shoovaleka was arrested on 5 December 2005 in connection with an armed robbery committed a day earlier.

He was charged with four co-accused.

More than seven years passed after his arrest and his case was postponed on 32 occasions before his trial started in the Windhoek Regional Court in April 2013.

Shoovaleka was eventually found not guilty in July 2016 on all charges he had faced.

He was held in custody until early in June 2016, when he was released on bail in an amount of N$5 000.

In his claim against the PG, Shoovaleka alleged that the prosecution violated his constitutional rights to be tried within a reasonable time and not to be subjected to arbitrary detention.

He sued the PG for a total amount of nearly N$11,25 million, made up of N$10 million for pain and suffering, and about N$1,25 million for loss of income.

In his judgement, Oosthuizen noted that the Constitution states that a trial should take place within a reasonable time, “failing which the accused shall be released”.

During the time he spent in custody, Shoovaleka applied to be granted bail twice, without success, Oosthuizen recounted.

Shoovaleka and his co-accused also tried to ask the High Court to quash the PG’s decision to prosecute them, or to grant them bail, but that application was struck off the court’s roll in December 2012.

They approached the High Court with the same application again in November 2015, but the application was dismissed in April 2016.

Oosthuizen noted in his judgement that according to prosecutor general Martha Imalwa, the prosecution does not alone control the pace of a trial and the duration of the detention of an accused.

“It is trite that a presiding judicial officer has the primary responsibility to manage and direct a criminal trial to finalise same within a reasonable time,” he said.

Oosthuizen continued that “systemic factors” that caused delays in the trial include factors which are not solely in the hands of the prosecution, such as the number of accused charged with Shoovaleka, lawyers who had different trial schedules, court congestion, time-consuming periods awaiting the outcome of legal aid applications, and a lack of a serious commitment to the principle of finalising cases effectively and within a reasonable time.

He concluded that Shoovaleka failed to prove that the PG was solely responsible for delays in his trial.

“The delays (postponements) were principally systemic and agreed upon between the defence counsel and prosecution, and approved by the court,” he said.

Oosthuizen dismissed Shoovaleka’s claim against the PG, but did not order him to pay the PG’s legal costs in the matter, since his claim raised important constitutional issues.

Shoovaleka, who was working as a taxi driver before his arrest, also sued the then minister of safety and security and the inspector general of the Namibian Police for N$65 000 over damage done to his car, which was impounded by the police, while the vehicle was in the custody and care of the police.

Oosthuizen ordered the minister and the inspector general in August last year to pay N$65 000 to Shoovaleka in respect of that part of his claim.

Shoovaleka was represented by lawyer Uno Katjipuka-Sibolile.

The PG was represented by Eliaser Nekwaya, instructed by the government attorney’s office.

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