Court Holds Police ‘Responsible’ for Suspect’s Suicide
27 July 2009
New Era
By: Roland Routh
Windhoek – The Supreme Court of Namibia on Thursday reversed a High Court decision to only award 20 percent damages to the son of a man who committed suicide while in police custody.
In his ruling, Supreme Court Judge Strydom in agreement with judges Shivute and Mtambanengwe ruled that the minor child was not at fault for his father’s suicide and that the Minister of Safety and Security has to foot 50 percent of the bill being N$60 012.00 for loss of support. The case was first heard before Judge President Petrus Damaseb in 2007, then postponed to May 2008 when the justice awarded the 20 percent damages to Benson Sylvanus Nepunda, the minor child of Fransina Yoleni Shaanika and the deceased Sem Shahalohamba Nepunda.
The judges said that there was a 50/50 chance that the deceased could have gone to jail and therefore a 50/50 chance that he would have supported the child.
The case stems from the suicide of Nepunda after he was picked up for questioning for the murder of Matilda Agnes Immanuel on January 27 2004.
Evidence presented in the original trial by Detective Inspector Booysen was that on January 27 2004 he received a report that a female body was found in Lister Street with two bullet wounds in the chest. Also at the scene of the crime two 9mm spent cartridges and a Nokia cellphone were found.
Booysen said in his testimony that he took the cellphone to MTC who provided him with a printout of the calls received, which in turn led him to two persons who admitted that they called the dead woman on January 24 2004.
They however denied killing the woman, but were nevertheless detained.
According to Booysen, further investigation revealed that Nepunda had a relationship with the woman and that he on occasion threatened to kill her. Nepunda was brought in for questioning, but also denied killing the woman.
Booysen testified that Nepunda admitted to owning a 9mm pistol, which the detective said he obtained and took to a forensic laboratory together with the spent cartridges found at the crime scene, plus two live rounds still in the pistol.
Tests conducted on the pistol and cartridges confirmed that Nepunda’s pistol was the murder weapon, according to the detective’s testimony.
Booysen told the court that back at his office he put the pistol together with the forensic report in an unlocked wardrobe, after which he confronted Nepunda with the information.
Booysen said he then tried to contact his senior officer, but failed and he then ordered Nepunda to wait outside his office in the corridor and went to the office of a Sergeant Ilundwa.
While there he heard a shot fired and immediately realised where it came from and when he went back to his office he found Nepunda lying on the floor with a pistol in his hand.
When asked by the court why Nepunda shot himself, Booysen replied that he could have realised that he was cornered and could go to jail for a lengthy period of time. He also claimed that Nepunda did not know beforehand that the pistol was in the unlocked wardrobe.
During the first trial various admissions were made by the defence counsel, Mr N Marcus, that led the court to find that the defence for the plaintiff, Conradie instructed by the Legal Assistance Centre proved that negligence of the police contributed to the suicide of Nepunda and the court to award the 20% damages.
Judge Strydom said in his ruling that he agreed with Judge President Damaseb that although they had misgivings to allow a claim in this particular circumstance, they were bound by the admissions made on behalf of the defendant.
He further said that there was no proof that Nepunda was suicidal or was suffering from some or other mental ailment and that the “deliberate action of Nepunda to kill himself may very well have been met by a plea of volenti non fit injuria or that the act had broken the chain causation in which case his claim could have been met by a defence of novus actus interveniens.”
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