Lawsuit about delayed justice delayed again

22 July 2021 | Justice

Windhoek • [email protected]

A former taxi driver’s legal battle to be awarded millions of dollars in damages after he spent more than 10 years behind bars on robbery charges he was found innocent of, is now nearing four years in court with several more years expected before the case is finalised.
Last year, Petrus Shoovaleka’s N$11 million lawsuit was heading for closure, after prosecutor general Martha Imalwa’s legal team informed the court they were prepared to negotiate a settlement and not argue the case in a trial.
Shoovaleka filed his lawsuit in late 2017, and was hopeful for a conclusion by the end of 2020, after settlement negotiations began in July 2020.
His lengthy embroilment in the legal system began in December 2005, when he was arrested. By the time he was released from custody, in July 2016, he had spent 10 years, 5 months and 29 days in prison as an innocent man.
He was finally released after his three-year trial, which only began seven years after his arrest, was concluded and found him not guilty on all charges.
In papers before court, Shoovaleka said that although he is not a lawyer and has a limited educational background, following his more than a decade ordeal, “I really felt that someone had to answer for what happened to me”.
With the assistance of the Nixon Marcus Public Law office, he sued for damages based on a “wholesale failure of the criminal justice system”.
However, his hopes to finalise his lawsuit on a speedier basis than his previous encounter with the justice system, crumbled in mid-December last year, when Imalwa made a sudden u-turn, informing the court she had changed her mind and would be defending the case instead of pursuing a settlement agreement.

More time lost
In court papers, Imalwa admitted that she was initially advised to settle and finalise the matter, instead of pleading to an amended particulars of claim filed by Shoovaleka in March 2020.
In early July this year, High Court judge Herman Oosthuizen, ruled in favour of Imalwa’s request that she be allowed to file a late plea, which had been due in July 2020. However, she argued that she did not file the plea as she had been advised by her lawyers to settle the matter instead.
In December 2020, shortly before Imalwa’s u-turn, government attorney Jabulani Ncube told the court that the only issue under negotiation was the amount to be paid to Shoovaleka. “We did not plea because technically we admit to most of those indiscretions; the only issue is quantum (amount of damages),” Ncube told the court.
On 9 July Oosthuizen said Imalwa was allowed to file a late plea, after she argued that she had only been advised in December that there was a chance to win the case against Shoovaleka. He ordered Imalwa to file her plea by 13 August 2021, more than a year after it was originally due. He also ordered her to pay the costs incurred by Shoovaleka related to the late filing proceedings.
While Oosthuizen ruled in favour of the defendant, his judgment highlighted the court’s displeasure with the delay in the proceedings overall, and the sudden u-turn. “Any reasonable court would have accepted that the parties are in agreement concerning the factual merits of the plaintiff’s claim. This court certainly did,” Oosthuizen wrote in his ruling.
Oosthuizen also said Imalwa’s arguments that she was not aware of relevant case law pertaining to the matter was “astounding and alarming”.
He wrote: “The excuse tendered by second defendant (Imalwa) concerning her ignorance of the applicable case law in view of her constitutional obligations and involvement as a party in the current case, is revealing.”
He added that as a consequence the court was “inconvenienced and the due administration of justice was as a result suspended, effectively, for more than a year”.

Shoovaleka fought strongly against allowing a late filing of Imalwa’s plea. He said the court should consider that her “unreasonable conduct in this matter only exacerbates and compounds the catastrophic failure of the system at the expense of the plaintiff - a human being - which resulted in him spending ten years, 5 months and 29 days in prison only to be acquitted in respect of all charges against him.”
Shoovaleka’s lawsuit seeks that the court order the office of the prosecutor general to pay him N$11 247 917 in damages, moreover, that the police pay him N$65 000 in damages for the damage his taxi vehicle, a Toyota Corolla, sustained during its decade with the police, after it was impounded in 2005.
The lawsuit names six defendants, including the president of Namibia, Imalwa, the minister of safety and security, the inspector general of the police, the attorney general and the permanent secretary of the judiciary.
Unomwinjo Katjipuka-Sibolile of Nixon Marcus Public Law Office is acting on behalf of Shoovaleka.

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