The case of Jane Owoses might cause outsiders to scratch their heads because of the assault she suffered at the hands of police, for no good reason. But for those who live in Namibia, or who read the judgments of the courts there, it’s part of a long line of cases involving police who act violently towards members of the public and who are never held individually accountable, even when the case results in a damages award.
At least this time the high court picked up on the problem, questioned police impunity and asked for a follow up from the prosecutor-general.
Owoses, 49 at the time of the assault, was a flight attendant with Air Namibia. She told the high court that she was assaulted by members of the Namibian police, the defence force and the Windhoek city police in June 2019 at her home in Windhoek North.
She says that she came out of her home to see what was causing a commotion. She was then assaulted: a tall member of the Namibian Defence Force, unknown to her, slapped her across the face. He also hit her on her back with the butt of his assault rifle. Owoses says she then ran into her house but was then again assaulted, in her own home, by the same person.
As a result of this assault, she suffered physical and psychological consequences.
She saw a doctor who recorded her physical injuries, and said that she was ‘very traumatised and emotional when he saw her.’ The doctor noted bruises and abrasions on her body. From the forms he completed, the court pointed out that these injuries were on both sides of her face and both shoulders. The doctor further noted tenderness all over her face, and ‘paraesthesia’ on the left of her face. This is a hypersensitivity resulted from blunt force and which usually causes moderate to severe pain that could last for weeks.
She said in an affidavit that there was extensive bruising and swelling on the left side of her face. A second doctor she subsequently consulted also noted bruising and swelling on her back and shoulder. According to Owoses she suffered ‘severe pain’ for about three months, while the left side of her face still feels numb sometimes.
This second doctor also noted that she might be suffering from post-traumatic stress disorder (PTSD) and suggested that she consult a clinical psychologist. Owoses did so, and the psychologist wrote a report saying that she ‘most probably suffered from PTSD as a result of the assault.’
Owoses said she became depressed as a result of the incident and could not get out of bed on many days. She developed ‘severe anxiety, depression and insomnia after the assault.’ It affected her work since she couldn’t report for duty and lost income as a result. She was also hospitalised twice after severe anxiety attacks.
She says she is extremely anxious when she encounters police officer or soldiers. ‘As a woman she felt a sense of helplessness and a sense of being reduced to nothing’ by the assault.
Most of the court’s judgment is taken up with a discussion on how to arrive at a proper damages award in such a case. Lawyers for Owoses said that N$145 000 would be an appropriate award, particularly since the assault was ‘entirely unprovoked, unjustified and unconscionable.’ Counsel for the police and defence force, however, argued that N$40 000 would be a suitable award since the injuries inflicted were ‘not life-threatening or severe’.
The judge noted that there was a distinct tendency in South Africa to increase awards for general damages, and said that in his view, ‘this tendency should apply in Namibia as well.’
Recapping the events that led to the claim by Owoses, he said, ‘This is atrocious and I treat is as a severe assault. The fact that a man armed with an assault rifle sees it fit to assault a woman with the butt of the rifle is disturbing and must be extremely traumatising’.
Coleman also accepted the evidence in relation to her injuries and the psychological consequences of the assault. He said that while he might have been willing to award Owoses N$200 000 as appropriate, her counsel had argued for N$145 000 and this is thus what she should be paid in damages.
But it is the final remarks of his judgment that stand out in particular. He said that assaults by the police and defence force on members of the public in Namibia were ‘prevalent’ and that this was ‘intolerable’. Damages in such cases were paid from taxpayers’ money, and he questioned why the individual perpetrators were allowed to ‘disappear into the undergrowth’ instead of being held accountable.
The ministers of safety and security and of defense as well as the Windhoek municipality had a duty to take action that would ‘weed out members of their respective forces that assault people’, said the judge.
‘Each of the members that assaulted (Owoses) or was complicit in it committed a crime and must face prosecution as well as disciplinary steps.’ Although Owoses had laid a criminal complaint with the police about her assault, there was no indication what had happened to it.
The judge also took on the problem that members of law enforcement operations did not wear their name tags. ‘This is unacceptable. Wearing of name tags should be enforced. The members of public in Namibia are entitled to know who they deal with when accosted by a member of these forces and to be protected, not assaulted.’
Finally, in addition to a formal order awarding N$145 000 damages to Owoses, Coleman directed the court registrar to refer the case to the prosecutor-general’s office to ‘determine the outcome’ of the criminal case she had brought, ‘and to ensure the proper investigation of the assault on (her)’ by the police, defence force, and Windhoek City Police.
The judge’s comments and order are a step in the right direction. Now, many people in Namibia, fed up with the constant problem of assaults on the public by members of the police and defence force, will be watching to see whether the court’s orders bear fruit.
* 'A matter of justice', Legalbrief, 4 October 2022