The legal team for Richwell Kulisesa Mahupelo who is suing government for N$15.321 million for malicious prosecution and unlawful detention is arguing that a case has been made out for Mahupelo and that he is entitled to damages.
Advocate Andrew Corbett SC, who started with the arguments on the merits of the case on Friday, said the case raises the issue as to whether, should the common law not adequately provide a remedy for the plaintiff, such remedy should be crafted by the court by reason of the violation of several of the plaintiff’s constitutional rights, and the relief granted.
Corbett, who is leading Mahupelo’s team with assistance from Uanisa Hengari on instructions from Kavendji and Kanguuei, further said that the case raises novel and complex issues, some of which have never been decided by Namibian courts. These, he said, include not only the proper interpretation to be given to the requirements for malicious prosecution, but also whether the continuation of a prosecution beyond a reasonable date, when there is no reasonable and probable cause, would also constitute malicious prosecution in terms of Namibia’s common laws.
The respondents, consisting of the Minister of Safety and Security, the Prosecutor General and the Government of the Republic of Namibia will present their arguments today. The respondents are represented by Advocate Ishmael Semenya SC assisted by Nixon Marcus on instructions from the Attorney General.
Mahupelo’s is the first of nine lawsuits that follow from the unsuccessful prosecution of 49 treason accused that was discharged on a Section 174 application after the state closed its case in February, 2013. Mahupelo is suing government for N$15.321 million. He claims he was a successful farmer before his arrest and claims N$780 000 in lost earnings for the time he was in detention and N$14.148 million in general damages. Mahupelo claims he was unlawfully arrested and detained and maliciously prosecuted even after the state realised it had no evidence to convict.
According to him, the state should have released him already in 2007 when the evidence against him could not sustain a conviction, but it intentionally kept him in prison with the hope that further evidence against him will come up. He further claims that his trial was unconstitutionally long.
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