Multi-million treason lawsuit ongoing Treason accused says prosecution is malicious Arrested during March 2000 for aiding and abetting Caprivi secessionists, Richwell Kulisesa Mahupelo alleges his prosecution was malicious. A senior South African lawyer acting on behalf of the State against the N$36.7 million lawsuit instituted by a former treason accused argues the plaintiff has failed to prove malicious prosecution.Senior counsel Ishmael Semenya appearing on behalf of the defendants the safety and security minister, the prosecutor-general and the Namibian government, said the state''s evidence against the plaintiff, Richwell Kulisesa Mahupelo, overwhelmingly implicated him in the commission of the very serious charges justifying his prosecution.
He further argued that the alternative claim for constitutional damages cannot succeed in the face of lawful prosecution.
“Any infringement of the plaintiff''s rights arising from a lawful prosecution up to the stage of application for discharge after the closure of state''s case is lawful. It cannot give rise to constitutional damages against the defendant,” Semenya maintained.
He further emphasised that Mahupelo failed to give notice in terms of the provisions of the Police Act to the Minister of Safety and Security in respect of constitutional cause of action and therefore he is precluded from pursuing the claim against the minister and the government.
According to him the plaintiff has not established a violation by the defendants of his right to a trial within a reasonable time in terms of the provisions of the Namibian
Constitution.
The defendant''s counsel in compiling the synopsis of their argument stated that Mahupelo''s complaint is the allegations in the statement -which implicated him in the commission of the various crimes - are untrue and that the statement was only taken after his arrest.
He argued the plaintiffs ignored that the police, after the 2 August 1999 attack, received information from informants about peoples'' involvement in the attack.
Semenya added that the police were looking for Bennet Mutuso, who was the second in command of the Caprivi Liberation Army (CLA) and who was involved in the attack on the military base at Mpacha on 2 August 1999. Mutuso was ultimately convicted by High Court for high treason, murder and attempted murder.
He stated that the police had information that the CLA rebels were regrouping for fresh attacks and that Mahupelo was assisting the rebels by providing food to them.
“The plaintiff was ultimately arrested together with Mutuso and Aggrey Mwambwa, the driver of the car in which they were travelling at night on 16 March 2000. An AK-47 firearm and food was found in their vehicle,” Semenya stated.
According to him as part of the police investigations, witness statements relating Mahupelo''s involvement with CLA were obtained after his arrest.
He argued that the defendants are not expected to test the truth or validity of every possible relevant fact or ground before he or she institutes the prosecution.
“All that is required is that the information available to the defendant must reasonably justify the conclusion that the plaintiff probably committed the crime. Neither is there any duty on the defendant to determine whether the plaintiff has a possible defence,” he argued.
He submitted that Mahupelo failed to prove that the police did anything more than to place the witness statements before the prosecutor-general leaving it to her to decide whether to prosecute or not.
“The claim for malicious prosecution against the police thus falters at the first hurdle and should be dismissed,” he argued.
The matter was postponed to 2 February next year for the judge''s ruling on Mahupelo''s application.
Acting Judge Philanda Christiaans postponed the hearing to 2 February 2017 for judgment. Advocate Andrew Corbett appeared on behalf of Mahupelo.
FRED GOEIEMAN