Security company sued for shooting incident
05 March 2021 | Justice
A High Court judge this week gave the greenlight for a lawsuit to continue in which two shooting victims are suing Shilimela Security Services for close to N$3 million after they were shot by one of its guards in Katutura in 2017.
Saara Kambuze and Kristof Namukwambi both launched lawsuits against Shilimela in September last year, three years after they were wounded by bullets fired by a Shilimela security guard at a bar in the Single Quarters residential area of Katutura on 27 September 2017.
Namukwambi is asking the court to order the security company to pay him N$1.5 million for damages arising from the shooting, while Kambuze is suing the company for N$750 000.
Before their case could get underway however, Shilimela asked that the court to dismiss their lawsuits.
The company argued that the lack of naming the particular security guard made their case unwinnable, and that they could not be held responsible for the unnamed guard’s actions. The company also argued the lawsuit papers were “vague and embarrassing.”
On Tuesday, High Court Orben Sibeya ruled that the case could continue and that Shilimela Advanced Security Services can be held liable for the actions of an employee even if that person is not named in the claim.
The judge said Shilimela’s attempt to have the duo’s lawsuit dismissed was an attempt to pour “cold water on the threatening damages claims by the plaintiffs”. Furthermore, he found that the victim’s lawsuits were not fatally flawed because they were not unable to name the security guard, and that the particulars of the claim were neither vague nor embarrassing to the extent that it warranted a dismissal.
“Parties may institution claims against employers based on vicarious liability without stating the names of employees, provided it is apparent from pleadings that such persons are employees of the defendants.”
He added that it would “defeat the ancient established principle of vicarious liability” if employers cannot be held responsible just because the name of an employee is not stated and “will amount to a travesty of justice”.
Judge Sibeya said legal precedents were numerous and clear that actions can be taken against employers without citing the names of employees, whether that employer is a public institution or private.
Banda Shilimela, owner of the security company, argued in an affidavit submitted to the judge that Kambuze and Namukwambi “intentionally failed” to cite the name of the security guard and this makes it difficult for the company to identify the person. “I employ more than 500 security guards. As such, I can only determine whether such a security guard is under my employment if a name is provided.”
Both Kambuze and Namukwambi’s sustained serious injuries; oth have bullet fragments that they say cannot be removed from their bodies as they are lodged too close to vital arteries and veins; both say they lost income and employment as a result of the injuries and continue to suffer long-term medical pain and suffering.
Kambuze informed the court in January that according to her knowledge, the police investigation into the shooting incident has stalled over the past three years. She told the court that she opened a case with the police but that she was told three years later the “investigations are not finalised”.
She added that the police have also failed to provide her with a docket of the case.
Banda Shilimela accused Kambuze of not being able to prove that she opened a case and that it was likely untrue.
The case has been postponed to 16 March for a case planning conference.
The plaintiffs are represented by their legal aid lawyer Profysen Muluti of Muluti & Partners while the security company is assisted by Silas-Kishi Shakumu.