Supreme Court overturns Police Act ruling

A HIGH Court judgement that levelled the playing field for people intending to sue the Namibian Police has not survived an appeal to the Supreme Court.

In a judgement delivered in the High Court in May 2005, Judge President Petrus Damaseb declared section 39(1) of the Police Act of 1990 unconstitutional. That section of the Police Act gives prospective litigants wanting to institute civil legal proceedings against the State or any person in respect of anything done in pursuance of the Police Act only 12 months, instead of the usual period of three years that plaintiffs in most other civil cases have, after the event that is the cause of their intended legal action to start with such litigation.In terms of the section, people who want to sue the State or anyone as a result of something that the Police have done, also have to give the prospective defendant written notice of the intended lawsuit at least a month before a case is lodged.The time schedule set by that section of the Police Act may at any time be waived by the Minister responsible for the Namibian Police – currently it is the Minister of Safety and Security – it is further stated in the section.In the judgement that he delivered in May 2005, Judge President Damaseb declared that section 39(1) was in breach of the Constitution’s articles guaranteeing the right to equality and freedom from discrimination and the right to a fair trial.The Judge President stated in his judgement that in his opinion the 12-month limitation period and requirement of a month’s prior notice of civil proceedings against the Police are not by themselves unconstitutional.As “a composite”, however, and specifically with that section of the Police Act not containing additional safeguards – such as that the prescription period should start only when a person wanting to sue the Police has become aware of the facts that are the reason for his or her legal action against the Police – the section becomes “rigid and inflexible” and as a result fails the test of constitutionality, the Judge President decided.He based part of his reasoning on the continued presence of widespread poverty and ignorance in Namibia, and found that in these circumstances, the time limitation contained in the Police Act may in effect shut the courts’ doors in the face of poor Namibians who are not properly informed of their legal rights.The Judge President stated: “I take the view that to allow section 39(1) of the Police Act to survive in its present form carries the risk that poverty and ignorance – which are the lot of the vast majority of this country because of past discriminatory policies – will only serve to perpetuate that condition for long.Instead of making it possible for as many people as possible to exercise the right to access to court which has been ‘denied to them for so long’, the law will achieve the opposite result.”The Judge President’s judgement was given in a case in which three people – Ricardo Majiedt, Severus Nambazi, and Yolande Marihette Sowden – who found that they were out of time with civil cases that they wanted to make against the Police for things like alleged unlawful arrest, damages to a vehicle and loss of income, asked the court to declare the time limitation clause in the Police Act unconstitutional.Having lost the case in the High Court, the Minister of Home Affairs, who was previously the minister responsible for the Namibian Police, took the matter on appeal to the Supreme Court.In a judgement written by Acting Judge of Appeal Fred Chomba, with Judge of Appeal Gerhard Maritz and Acting Judge of Appeal Mavis Gibson in agreement, the Supreme Court has now set aside the Judge President’s ruling.Acting Judge of Appeal Chomba started out describing the Judge President’s judgement as “well reasoned and very carefully researched”.The problem, though, he went on to indicate, was that in his view that judgement was also wrong.Acting Judge of Appeal Chomba stated that he agreed with the argument of George Coleman, the counsel who represented the Minister in the appeal, that the section of the Act that was attacked “does not attempt to exclude the right of access to a court of law”.The Minister responsible for the Police can still at any time be asked to exercise his or her power to waive the time limits set in the Act, he pointed out.Acting Judge of Appeal Chomba stated: “It is granted that the Minister, not being a person who is not potentially disinterested, may not give a sympathetic ear to the waiver application.However, the supreme law of the land, the Namibian Constitution, obligates him/her to act fairly and reasonably and to comply with the tenets of common law and of any relevant statutory law when dealing with public affairs.In addition the Constitution provides that a person who is aggrieved by the decision of a Minister in relation to a waiver application has a right to approach a court of law to ventilate his/her grievance.”The costs of following this route should not deter people from trying to exercise their rights to get access to the courts, Acting Judge of Appeal Chomba added.He noted that the Constitution and the Legal Aid Act provide for State-financed legal aid to be given to people who would not otherwise be able to afford the services of a lawyer.This should cater for “the poverty-stricken potential claimant” that Judge President Damaseb referred to in his judgement when he set out his reasons for finding the section of the Act unconstitutional, Acting Judge of Appeal Chomba remarked.Coleman acted on instructions from the Government Attorney.Louis Botes, instructed by Zagrys Grobler, represented Majiedt, Nambazi and Sowden in the appeal.That section of the Police Act gives prospective litigants wanting to institute civil legal proceedings against the State or any person in respect of anything done in pursuance of the Police Act only 12 months, instead of the usual period of three years that plaintiffs in most other civil cases have, after the event that is the cause of their intended legal action to start with such litigation.In terms of the section, people who want to sue the State or anyone as a result of something that the Police have done, also have to give the prospective defendant written notice of the intended lawsuit at least a month before a case is lodged.The time schedule set by that section of the Police Act may at any time be waived by the Minister responsible for the Namibian Police – currently it is the Minister of Safety and Security – it is further stated in the section.In the judgement that he delivered in May 2005, Judge President Damaseb declared that section 39(1) was in breach of the Constitution’s articles guaranteeing the right to equality and freedom from discrimination and the right to a fair trial.The Judge President stated in his judgement that in his opinion the 12-month limitation period and requirement of a month’s prior notice of civil proceedings against the Police are not by themselves unconstitutional.As “a composite”, however, and specifically with that section of the Police Act not containing additional safeguards – such as that the prescription period should start only when a person wanting to sue the Police has become aware of the facts that are the reason for his or her legal action against the Police – the section becomes “rigid and inflexible” and as a result fails the test of constitutionality, the Judge President decided.He based part of his reasoning on the continued presence of widespread poverty and ignorance in Namibia, and found that in these circumstances, the time limitation contained in the Police Act may in effect shut the courts’ doors in the face of poor Namibians who are not properly informed of their legal rights.The Judge President stated: “I take the view that to allow section 39(1) of the Police Act to survive in its present form carries the risk that poverty and ignorance – which are the lot of the vast majority of this country because of past discriminatory policies – will only serve to perpetuate that condition for long.Instead of making it possible for as many people as possib
le to exercise the right to access to court which has been ‘denied to them for so long’, the law will achieve the opposite result.”The Judge President’s judgement was given in a case in which three people – Ricardo Majiedt, Severus Nambazi, and Yolande Marihette Sowden – who found that they were out of time with civil cases that they wanted to make against the Police for things like alleged unlawful arrest, damages to a vehicle and loss of income, asked the court to declare the time limitation clause in the Police Act unconstitutional.Having lost the case in the High Court, the Minister of Home Affairs, who was previously the minister responsible for the Namibian Police, took the matter on appeal to the Supreme Court.In a judgement written by Acting Judge of Appeal Fred Chomba, with Judge of Appeal Gerhard Maritz and Acting Judge of Appeal Mavis Gibson in agreement, the Supreme Court has now set aside the Judge President’s ruling.Acting Judge of Appeal Chomba started out describing the Judge President’s judgement as “well reasoned and very carefully researched”.The problem, though, he went on to indicate, was that in his view that judgement was also wrong.Acting Judge of Appeal Chomba stated that he agreed with the argument of George Coleman, the counsel who represented the Minister in the appeal, that the section of the Act that was attacked “does not attempt to exclude the right of access to a court of law”.The Minister responsible for the Police can still at any time be asked to exercise his or her power to waive the time limits set in the Act, he pointed out.Acting Judge of Appeal Chomba stated: “It is granted that the Minister, not being a person who is not potentially disinterested, may not give a sympathetic ear to the waiver application.However, the supreme law of the land, the Namibian Constitution, obligates him/her to act fairly and reasonably and to comply with the tenets of common law and of any relevant statutory law when dealing with public affairs.In addition the Constitution provides that a person who is aggrieved by the decision of a Minister in relation to a waiver application has a right to approach a court of law to ventilate his/her grievance.”The costs of following this route should not deter people from trying to exercise their rights to get access to the courts, Acting Judge of Appeal Chomba added.He noted that the Constitution and the Legal Aid Act provide for State-financed legal aid to be given to people who would not otherwise be able to afford the services of a lawyer.This should cater for “the poverty-stricken potential claimant” that Judge President Damaseb referred to in his judgement when he set out his reasons for finding the section of the Act unconstitutional, Acting Judge of Appeal Chomba remarked.Coleman acted on instructions from the Government Attorney.Louis Botes, instructed by Zagrys Grobler, represented Majiedt, Nambazi and Sowden in the appeal.