Murder arrest lawsuit back to High Court

A LAWSUIT against government over the alleged malicious prosecution of the man formerly accused of the rape and murder of 17-year-old schoolgirl Magdalena Stoffels in Windhoek almost eight years ago should go back to the High Court to be heard, the Supreme Court directed on Friday.

The direction came from a judgement on an appeal by government against a High Court decision with which government scored partial success with an attempt to have all three parts of a damages claim of N$2,7 million dismissed.

The Supreme Court, in a judgement written by appeal judge Dave Smuts, struck the government’s appeal against acting High Court judge Kobus Miller’s decision from the court roll, and referred the case back to the High Court. The appeal was struck because government should have obtained permission from the High Court to appeal to the Supreme Court, which government did not get.

Acting judge Miller, in a judgement delivered in August 2016, upheld government’s special plea in response to two parts of a damages claim that former rape and murder accused Junias Fillipus lodged after charges against him were withdrawn in May 2011.

Fillipus was arrested on 27 July 2010 – the day on which Magdalena Stoffels had been found fatally injured in a riverbed near Windhoek’s Dawid Bezuidenhout High School, where she was a pupil – and was detained for close to 10 months until charges against him were withdrawn in May 2011.

The charges against Fillipus were withdrawn on instructions from the prosecutor general after it was discovered that crucial forensic evidence in the case did not link him to the alleged rape and murder of Stoffels. The crime remains unsolved to date.

In May 2013, Fillipus sued government for N$200 000 for alleged unlawful arrest, N$2 million for alleged wrongful detention, and N$500 000 for alleged malicious prosecution.

In the High Court, the state responded to Fillipus’ claim by filing a special plea in which it argued that the lawsuit was lodged late in terms of the Police Act, which requires that a civil claim against the police should be lodged within a year after a cause of action arose.

Acting judge Miller upheld the special plea against the claims over Fillipus’ alleged unlawful arrest and detention, but reasoned that the claim over alleged malicious prosecution involved the prosecutor general, rather than the police, with the result that the third part of Fillipus’ damages claim did not have to be filed within 12 months as was required in respect of the two parts of his lawsuit against the police.

The government appealed to the Supreme Court against the part of acting judge Miller’s ruling in which he did not uphold the special plea against Fillipus’ claim for damages over alleged malicious prosecution. That part of the case will now have to return to the High Court to be decided.

Deputy chief justice Petrus Damaseb and acting judge of appeal Theo Frank agreed with judge Smuts’ judgement.

Government lawyers Chipo Machaka and Appolos Shimakeleni represented the state when oral arguments were heard three weeks ago. Fillipus was not represented at the appeal hearing.

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