PG wins treason trial civil claim appeal

IN A landmark judgement on malicious prosecutions in Namibia, the Supreme Court has overturned a High Court judgement in which the prosecutor general was held liable to compensate one of the men acquitted in the main Caprivi treason trial.A SUPREME Court judgement yesterday delivered an important victory to the prosecutor general in her ongoing battle against dozens of multimillion-dollar civil claims in which she is being sued over the prosecution of persons in the main Caprivi high treason trial.

Two years after acting High Court judge Philanda Christiaan ruled that the prosecutor general (PG) maliciously continued to prosecute one of the men accused in the main Caprivi high treason trial, Richwell Mahupelo, after the last witness who could implicate him had testified in the trial, the Supreme Court has now overturned that ruling.

The Supreme Court’s judgement – a landmark decision on malicious prosecution in Namibia – is also expected to have an effect on dozens of other damages claims in which the PG is being sued for millions of dollars by most of the men found not guilty in the main Caprivi high treason trial.

In the judgement, written by Chief Justice Peter Shivute, the court agreed with the PG that although the judge who presided over Mahupelo’s trial found there was not enough evidence on which he could be convicted, there was evidence “establishing reasonable and probable cause on the part of the prosecution not only to initiate the prosecution, but also to continue with it right up to the end of the state’s case”.

The chief justice also found that prosecutor general Martha Imalwa and the prosecutors she delegated to conduct the prosecution in Mahupelo’s trial “had an honest belief founded on reasonable grounds that the continuation of the prosecution [against Mahupelo] was justified”.

Mahupelo was one of the 121 accused in the dock when the first phase of the treason trial started in the High Court at Grootfontein in October 2003.

Having been arrested in mid-March 2000, Mahupelo ended up being detained for nearly 13 years before he and 42 co-accused were acquitted in February 2013.

Thirty of the accused in the trial were ultimately convicted of high treason in September 2015, when another 35 of the accused were also found not guilty.

Following his acquittal, Mahupelo sued the government and PG for N$15,3 million in damages he claims to have suffered through having been prosecuted. In her judgement on Mahupelo’s claim, acting judge Christiaan found that although the PG had proper grounds on which to institute a prosecution against Mahupelo, the state did not have reasonable and probable cause to continue to prosecute him after November 2011, when the last of the witnesses who implicated him had testified without identifying him in the dock.

As a result of that finding, she held the PG liable for having maliciously prosecuted Mahupelo beyond that stage of the trial – a finding which the Supreme Court has now overturned.

Acting judge Christiaan’s judgement in Mahupelo’s case has served as a precedent that was followed in four subsequent High Court judgements on similar civil claims in which other acquitted former treason accused are suing the PG and the government for alleged malicious prosecution.

While the Supreme Court overturned the previous finding that the continuation of the prosecution against Mahupelo to the end of the state’s case was malicious, the court referred a further part of Mahupelo’s damages claim back to the High Court to be decided.

In that part of his claim, Mahupelo is alleging that his constitutional rights were violated because he was jointly tried with a multitude of co-accused, because the prosecution against him was not stopped earlier, and because his trial took more than nine years to be concluded. Acting judges of appeal Fred Chomba and Yvonne Mokgoro agreed with the judgement written by the chief justice.

The PG, the government and the minister of safety and security, who appealed against acting judge Christiaan’s judgement, were represented by senior counsel Geoff Budlender, Nixon Marcus and Sisa Namandje when oral arguments on the appeal were heard in July last year.

Mahupelo was represented by senior counsel Andrew Corbett, assisted by Unanisa Hengari.