Police assault case puts rights abuse in the dock

AN ASSAULT which a Namibian Police constable carried out against a transgender woman in Windhoek nearly four years ago has had a sequel in the High Court, where the hearing of a lawsuit about the incident was concluded on Friday.

After hearing closing arguments on the damages claim which Mercedez Von Cloete filed against the minister of safety and security in early 2018, judge Esi Schimming-Chase on Friday postponed the delivery of her judgement to 15 November.

If the judgement is completed before then, it would be handed down earlier, the judge also said.

Cloete is claiming she was unlawfully arrested and assaulted by a police officer, one constable Kavari, after she had encountered him in a fast-food outlet in Windhoek in the early morning hours of 6 July 2017.

She says the constable forced her into a police vehicle, assaulted her by punching her, called her degrading names like “moffie” (“faggot”), and in front of the Windhoek Central Police Station further assaulted her by kicking her.

Cloete is suing the minister as the Cabinet member responsible for the police for N$200 000.

The minister is defending the case, and in a plea filed with the court is claiming Cloete was acting in a rowdy manner in the fast-food outlet, threatened to pepper-spray Kavari and a civilian who was with him, and acted violently towards the constable, who then “retaliated in self-defence by throwing punches back” at Cloete.

Cloete’s lawyer, Uno Katjipuka-Sibolile, argued on Friday that what happened to Cloete was purely and simply harassment at the hands of the police for no other reason than that she is a transgender woman.

On this point, government lawyer Ndiriraro Kauari argued the opposite – that Cloete was not targeted because she is transgender, but because she had been rowdy and unruly in a public place.

Katjipuka-Sibolile also argued that the police officers who at the police station stood by without intervening while Cloete was being assaulted had an attitude of “couldn’t care less”, which cannot be excused.

There is a need for the court to clearly send out a message to the police that the conduct experienced by Cloete at the constable’s hands is not acceptable and would not be tolerated, she argued further.

The constable’s conduct not only constituted an abuse of power, but – as evidenced by the sort of words he used towards Cloete – a hate crime as well, Katjipuka-Sibolile said.

In his address to the court Kauari said Namibia is a constitutional democracy in which all people are equal and free, and the rights of minority groups are guaranteed before the law.

He argued that Cloete failed to prove she had been targeted because she is a transgender woman, and said she was trying to profit from the incident.

Kauari further argued that in the absence of testimony from a psychiatrist or psychologist, the court was left in the dark in respect of the psychological effect the event had on Cloete.

A friend of Cloete told the court her spirit has been dampened after the incident and she has become more socially withdrawn than she had been before the event.

If the court finds that Cloete had been unlawfully assaulted, it should award her an amount of no more than N$10 000, Kauari suggested.

Katjipuka-Sibolile argued that an award of N$200 000 to Cloete would be fair and just – or if the court considers that as being too high, an appropriate award would be at least N$100 000.

The court was told Kavari has left the police in the meantime and could not be traced to give testimony in the matter.

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