Namibia’s apex court ‘seriously censures’ police officers for malicious arrest and acting as though ‘beyond any level of accountability’

10 September 2021 · Carmel Rickard

Namibia’s highest court has sternly reproved elements of the country’s police service for seriously abusing their power and acting ‘as if they were beyond any level of accountability’. In its official summary of the case, the supreme court wrote that the ‘highhanded conduct of the police officers called for serious censure by this court.’ The case concerns Bernhardt Lazarus who runs a bar in Windhoek and who was terrorised by some members of the police who repeatedly arrested him, without warrant or cause.

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The decision of the supreme court in this case has been well over a year in the making, and one of the three judges who heard the matter, Justice Elton Hoff, noted at the top of the judgment that the litigants were due an apology for the delay in delivering the decision. It has to be said that for the courts to acknowledge when they don’t deliver timely decisions is a welcome development and fair to all the parties involved.

The case concerns Barhardt Lazarus of Windhoek where he runs a bar. According to the evidence of Lazarus, he received a phone call during October 2014 telling him that his bar had been broken into. He went to check and found that a jackpot machine belonging to a client was missing, and that the lock of a jukebox was broken and the money in it removed. A second jackpot machine had also been broken.

He tried to make a report with the police but was sent away because, unsurprisingly, since he was not the owner, he did not have proof of ownership of the missing machine. He explained the problem to the owner who in turn referred him to a police officer that he thought could help. This police officer, attached to the serious crime unit, was Detective Sergeant Freddie Nghilinganye.

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Nghilinganye and a fellow detective came to the bar and took a statement from Lazarus. But later that same day he started receiving threatening phone calls from the two officers who accused him of being behind the break-in, a claim denied by Lazarus.

This was the start of what reads like a deliberate campaign against Lazarus.

Ransacked

The next Friday evening, the two police officers arrived at the bar and in front of all the customers and neighbours, arrested Lazarus, despite having no warrant. He was taken to a police station and left in the police cells for the weekend. On the Sunday they collected Lazarus and took him to his house which they ransacked. Again, there was no warrant and he was given no explanation. Afterwards, he was taken back to the police station and then released.

The following weekend, the two police officers again picked him up at the bar, again without providing any reasons, and again without a warrant. Once again, he was taken to the police holding cells and left there without being charged. On the Monday he was taken to the police station in Windhoek where he was formally charged, but he was later returned to the original police station from where he was released without being charged.

Some months later he had a phone call from a third police officer that Lazarus interpreted as being a request for a bribe. Told to meet the police at another bar, Lazarus refused to do so, saying the police had ‘harassed, tormented, threatened and gravely humiliated’ him. That seems to have led to the climax of the saga. Two days later, as Lazarus put N$27 000 in cash into his vehicle, two of the three police officers approached him and said they were going to arrest him ‘because he did not respect them’ or the law.

Aggressive

Lazarus says they were violent and aggressive. He managed to escape, but as he was running away, they fired at him. The police then impounded his vehicle.

Soon afterwards, Lazarus asked for legal help to prevent the police continuing their campaign against him and eventually brought legal action against the police demanding compensation for wrongful arrest and detention.

He also asked for compensation for the cash that he had left in the vehicle before the police ‘impounded’ it.

Liability

After an admission of liability by the police, the high court awarded N$300 000 for compensation for the unlawful arrests and detention; N$27 000 to compensate for the money that disappeared from his vehicle after the police impounded it, and N$90 000 for loss of profit because he was unable to use his vehicle. The ministry of safety and security appealed against the court’s award and it was this appeal that has now been resolved.

After reviewing the evidence and the high court’s conclusions, the supreme court decided that the government had to pay compensation for the cash that went missing from the vehicle. The court also upheld the compensation awarded for unlawful arrest and detention. However, as Lazarus had not proved his loss due to the police impounding his vehicle, that element of the award was set aside.

Explaining its approval of the compensation award for unlawful arrest and detention, the court said Lazarus’s dignity had been impaired, his life was threatened and his was unlawfully deprived of his liberty. ‘The conduct of the police officers calls for serious censure and this court must show its displeasure with their depraved and repeated unlawful conduct.’

Malicious

The court noted that counsel on behalf of the government conceded that the arrests had been malicious and added that it agreed with the high court that the police had been ‘callous’.

‘They seriously abused their powers and acted as if they were beyond any level of accountability. To treat [Lazarus], who as a complainant sought the assistance of the police, in such a highhanded manner is inexcusable. The police officers acted as if they were a “law unto themselves”.’

The court agreed with counsel for Lazarus that the high court’s award of N$300 000 for this aspect of the claim was ‘not excessive at all’, ‘considering that [Lazarus] was wrongfully and unlawfully arrested on three different occasions, invariably over weekends, which evinces malicious intent.’

Carmel Rickard

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