Time limit for claims against Police faces High Court test

Articles: Time limit for claims against Police faces High Court test

Posted by admin on Wednesday, June 02, 2004 - 01:16 AM

A PROVISION in the Police Act that gives anyone wanting to sue the Police only one year to do it - instead of the three years of time that would-be litigants in other civil cases have - has been attacked in the High Court as being unconstitutional.
At the heart of the case that was argued before Acting Judge Petrus Damaseb in the High Court in Windhoek on Monday, is the constitutional right to have access to the courts, on the one hand, and on the other hand claims about the prospect that floodgates of litigation against the Police may be opened if that part of the Police Act does not survive the constitutional challenge. Acting Judge Damaseb reserved his judgement in the case in which the High Court has been asked to declare Section 39 (1) of the Police Act of 1990 unconstitutional after hearing arguments from lawyers Louis Botes and Steve Nkiwane on Monday. The section that Botes attacked on behalf of three clients of his instructing lawyer, Zagrys Grobler, and that was defended by Nkiwane on behalf of the Minister of Home Affairs, states that anyone wanting to sue the State or any person for anything that had been done in pursuance of the Police Act, has to do so within 12 months after the event over which they want to sue. The section further gives the Minister of Home Affairs the power to exempt anyone from the time limit of that section. The attack on the constitutionality of the section could have far-reaching consequences, Nkiwane - from the Office of the Attorney General's Directorate: Civil Litigation (Government Attorney) - warned acting Judge Damaseb as he concluded his address to the court. According to Botes, his clients' case was that the part of the Act that they were questioning was offending their constitutional rights because it gave the Minister of Home Affairs and members of the Police greater protection against claims than the protection given to other citizens who might face similar claims. Nkiwane told the court that the object of the Act's time limitation was to protect the executive arm of the State - represented by the Minister - and the interest of the public treasury against claims against Government where evidence needed to defend cases may have been lost due to the amount of time that had elapsed. In any event, he added, a decision by the Minister to allow someone to proceed with an out-of-time claim against the Police, could still be taken for review to the High Court if someone was dissatisfied with it. The challenge to the constitutionality of Section 39 (1) arises from civil claims that three of Grobler's clients - Ricardo Majiedt, Severus Nambazi and Yolande Marihette Sowden - wanted to institute against the Police. Because of various factors, such as other lawyers not having acted quickly enough to get their claims filed at court, the one-year time limit had put paid to all three would-be litigants' claims against the Police before they could even get off the ground. That is, unless they now succeed with their constitutional challenge.

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