Legal Assistance Centre-Namibia

CASES
HUMAN RIGHTS & CONSTITUTIONAL UNIT (Huricon)

The following are some of the more interesting cases which were recently dealt with by this unit.

CONSTITUTIONAL RIGHTS & HUMAN RIGHTS

CAPRIVI DETAINEES
Extensive preparations were attended to in respect of five Caprivi torture matters which were to go to trial in June and July 2006. This included numerous court notices, requests for additional particulars, supplementary discovery, bundles, indexing and tracing the doctor who initially treated clients and was “somewhere in Botswana”. In the latter instance, Huricon thanks the internet and its search engines. After weeks of preparation, these matters were settled by government shortly before the commencement of trial. A provision of the settlement was that the terms remain confidential. Pre-trial proceedings have now commenced in relation to a further 17 caprivi detainees who have refused to take part in the criminal trial and are therefore available for their civil trials to commence.

Similar preparations were attended to in conjunction with the Legal Assistance Centre’s in-house Counsel, Ms Lynita Conradie, in relation to the matter of a client who alleged that he had been viciously tortured whilst attempting to legitimately cross a border point in northern Namibia. This matter went to trial in October 2006 but despite the fact that client has witnesses to corroborate some of the allegations made, the court found the testimony of client to be unsatisfactory and client was unsuccessful in his damages claim. It was decided not to appeal the judgment.

Also in the Caprivi matters, Huricon was able to obtain permission from the Ministry of Safety & Security to enter Windhoek Central Prison and photograph those clients who still have scars from the torture they experienced some 8 years ago.

Still relating to the events flowing from the alleged secessionist attempt in the Caprivi in 1999, Huricon was instructed to draft papers putting the Office of the Prosecutor-General on terms to criminally charge the alleged perpetrators of wide-spread torture following the attempt. The lengthy papers were finalized but clients wanted to wait until the settlement of their claims for damages for such torture before proceeding with the application. Unfortunately, despite the fact that their matters were subsequently settled, Huricon was unable to obtain clients’ signatures on the necessary affidavits needed to launch the application against the Prosecutor-General.

In addition, Huricon is still assisting a number of Caprivi detainees in claiming their pensions and other benefits from the Government of the Republic of Namibia, as well as numerous other small issues which effect trial-awaiting detainees. Huricon has taken on this role of facilitator in that the detainees do not have funding to recruit legal practitioners to guide them in this process. Consequently their ability to access their rights are severely impaired.

Learn more about the 1999 Caprivi unrest in this timeline from The Namibian newspaper.

NA v NBC and OTHERS
This client was in prison when he agreed to participate in a documentary programme by the NBC on "youth in prison." He, however, specifically asked that his face should not be shown on the programme. When the programme was aired during prime time on the NBC, his face was not obscured. To exacerbate the situation, the documentary was subsequently aired a further three times.

The client therefore felt that his right to privacy was affected and he instructed Huricon to institute an action herein. The court papers were finalized and the matter proceeded to trial in May 2007 at which time the Plaintiff closed its case but the Defendant’s witnesses were not present so the matter was postponed to November 2007. Just before proceeding to trial in November an offer of settlement was made by the NBC and accepted by the client.

STATE PRESIDENT’S PATIENTS (SPD’S)
The SPD issue is an ongoing one. Currently SPD’s are kept incarcerated for inordinately long periods of time, often long after they are ready to be released, due to the fact that there is no proper review process in place.

Summons was issued on behalf of a client who was previously held at the forensic psychiatry section of the Mental Health Unit after having been declared a State President’s Patient. Client was ready for release and from the time that the Hospital Board confirmed this until the time when client was actually released, some 18 months passed. Huricon contends that this is an unreasonable administrative delay and a substantial sum of damages was claimed. Government defended stating that the incarceration was lawful since it was ordered by a court of law. Huricon does not agree with this contention but, nevertheless, Counsel’s opinion was requested and same vindicated Huricon’s stance.

This matter proceeds to trial in March 2008, possibly on the basis of a stated case. In addition hereto, Huricon is in constant contact with the head of the Mental Health Unit in an attempt to find ways in which to expedite the release of those patients who are ready to re-enter society. This involves providing legal advice and attending meetings of the task force assigned to review legislation as well as liaising with the Office of the Prosecutor-General who acts as the official curator-ad-litem for state president’s patients.

CORPORAL PUNISHMENT IN SCHOOLS
The first matter dealt with a minor being severely assaulted by a teacher with a hard plastic pipe during school hours. Claims were instituted against the Ministry of Basic Education, Sport and Culture as well as against the offending teacher. After a marathon trial, the Defendants were ordered to pay the sum of N$35 000 as well as costs to the Plaintiff. The Ministry opted to appeal the issue of costs which is still not finalized. This case had a major impact since it was ascertained from reliable sources that circulars were sent to all government schools from the Ministry informing them of this judgment and again reminding them that corporal punishment in schools is unlawful.

In a similar matter and in an attempt to build on the abovementioned judgment, summons has been issued on behalf of "RO" Minor, also relating to an assault perpetrated by a teacher during school hours. Instructions were also received in the matter of "S" MINOR from a parent whose child was assaulted by a teacher and the psychiatrist who treated this child has been asked to furnish Huricon with a full report. Thereafter it will be established whether further action should be taken in an effort to eradicate corporal punishment from schools.

'BREACH OF CARE'
In this matter, we instituted Summons against the Minister of Basic Education, Sport and Culture on behalf of a minor schoolgirl (represented by a curator ad litem) and her grandmother, for damages suffered after she was allegedly raped by one of her teachers. The girl, who is also mentally disabled, resided in a hostel on the school grounds and without her grandmother’s permission, the superintendent allowed her to go home with one of the staff at the hostel for the weekend. During this weekend the alleged rape took place. Our basis for the claim was that the Minister had a duty of care towards the children in his/her care and this duty was severely neglected in these circumstances, which caused harm to the minor child.

After the exchange of pleadings, the matter proceeded to Court on 27 to 30 September 2005. Several witnesses testified on behalf of the plaintiffs, including the plaintiffs themselves, the school principal, the teacher who looked after her in the hostel, the child psychologist in the employ of the Ministry, the medical doctor who examined her a few weeks after the incident, a private psychologist and also the chairperson of the disciplinary committee appointed by the Ministry to investigate the charges against this teacher.

It was argued that the Ministry is vicariously liable for the breach of the duty of care by its officials. Judgment was handed down in 2007 in our client’s favour to the tune of N$105 000 plus past medical expenses and costs. Government have appealed this judgment which appeal will probably be heard in 2008.

PRISONER RIGHTS
This case relates to whether the Ministry of Safety and Security is responsible for prison inmates when they are out on work duty. Summons has been issued and both the Ministry and the farm manager have defended the matter. The farm manager has also entered a counter-claim to the effect that client used abusive language and insulted him. Client denies this.

The contention is that the Ministry of Safety and Security have a heightened duty of care towards inmates since they are not at liberty to remove themselves from the situation in which they find themselves. The Ministry must take responsibility for their safety in circumstances where the inmates leave the prison enclosure. Since the assault was perpetrated by a private person (who has also been sued as the Second Defendant), the Ministry denied liability. This matter was to proceed to trial in 2007 but was subsequently settled when the Defendants made an acceptable offer to client.

SEXUALITY
Huricon received instructions from one of the local legal practitioners’ firms to assist these clients. The two men were caught in a sexual act in a toilet in a private bar and arrested. They were charged with, among other charges, also sodomy. There is an international move towards abandoning sodomy as a criminal offence and we agreed to bring an application on behalf of the men to also declare it unconstitutional in Namibia.

Before the application could be filed however, the prosecutor withdrew the sodomy charges against the men and the application became irrelevant. The file is kept in abeyance however, as the lawyer acting for them in the criminal matter believes that they might again be charged with sodomy at a later stage.

SEXUAL HARASSMENT
With the assistance of funding from the Gender Research and Advocacy Project, Huricon was able to solicit the services of outside Counsel to deal with a matter of sexual harassment. This is a fairly new field of law and the first time that the Legal Assistance Centre has commenced with legal proceedings in such an issue. The pleadings have essentially been finalized and the matter proceeded to trial in 2007. The Plaintiff finalised its case and the matter was then postponed to February 2008 for the Defendants to place their case before the court. This case could have important ramifications for employers in Namibia since it would give an indication of the level of care expected from them in cases of sexual harassment.

CUSTOMARY MARRIAGE
In a matter relating to the rights of women in a customary divorce, much time was spent consulting with client and the legal practitioner of the other side as well as Counsel. An application for interim maintenance in the customary divorce action was also drafted but subsequently client’s husband divorced her in the traditional manner by returning her to her parents over the holiday season. It is not apparent at this time whether client wishes to pursue her options. This is another matter that was referred to Huricon by the Gender Research and Advocacy Project.

IMMIGRATION & CITIZENSHIP
Client has been so married to a Namibian for more than 10 years and has fathered 4 children in Namibia. In April 2005, an application was brought in the High Court requesting the Ministry of Home Affairs to grant client citizenship on the basis of client’s marriage to a Namibian citizen. The reason for the rejection was that client had been found guilty of using forged documentation, which Huricon asserts should be irrelevant in relation to an application based on marriage. The matter was argued and after further Heads of Argument on the concept of being ‘ordinarily resident’ were filed, judgment was reserved.

The favourable judgment obtained in this matter has been appealed by Government. The appeal should be heard in 2008 and will centre around the difference between the definitions of ordinary and lawful residence.

REFUGEES
A mandamus application forcing the Ministry of Home Affairs and Immigration to make a decision on a pending application for citizenship filed by a family of refugees was finalized and served. Government initially opposed the application but thereafter took the decision to refuse the citizenship applications, thus nullifying the reason for the court application. The reasons for the decision by the Ministry were all found to be easily dealt with but the Ministry has not reversed its decision.

A further application has now been brought against the Ministry. Clients have been living in Namibia for over 10 years, their child has commenced schooling here and both clients engage in employment sorely lacking in Namibia. There would seem to be no valid reason for refusing them citizenship and this will be challenged.

MEDICAL NEGLIGENCE
We were approached by the mother of the minor to institute a claim against the Minister of Health and Social Services. Her son fell through a broken window while at school and got a nasty cut on his arm. He was taken to the Oshakati Hospital for treatment. His mother however was not satisfied with the treatment which he received at the hospital and brought him to the Windhoek Central Hospital for treatment. On his arrival here, she was told that they needed to amputate the arm because of gangrene which set in. His arm was amputated shortly thereafter. The mother believed that it was because of a lack of proper medical attention at the Oshakati Hospital that the gangrene set in.

The matter was reported to the Namibia Medical Board, who is currently investigating the allegations. We in the meantime requested an expert opinion from one of the local doctors, but he informed us that he could not find any negligence in the handling of the injury at the Oshakati Hospital. According to him, some injuries are just that bad and the doctors then have no option but to amputate the organ.

Before a final decision will be made as to whether to institute an action, we will consult with the mother again, obtain the decision from the Medical Board and consider the possibility of obtaining a further medical opinion herein.

Read more about other LAC's cases.