State Liability for Acts and Omissions of Police and Prison Officers: Recent Developments in Namibia

Abstract

Soon after constitutional democracy came to Namibia in 1990, the courts began to propound and develop a human rights culture and jurisprudence. Missing, however, from the resulting wealth of case law, were cases relating to government liability. In effect, there was no corresponding development of the law of state liability in Namibia until recently when claims for delictual damages for the acts and omissions of police and prison authorities alleging breaches of fundamental rights, started reaching the courts. Although the Namibian Constitution does not, like the South African, expressly mandate the courts to develop the common law so as to reflect the spirit of the entrenched fundamental rights, the Supreme Court has held that the Namibian Constitution and national legislation necessarily authorise the courts to adjudicate having regard to those rights. It then proceeded in Dresselhaus Transport CC v Government of the Republic of Namibia 2005 NR 214 (SC) to treat as ‘useful guidelines’ the constitutional-delict principles enunciated by South African courts in developing Namibia’s own government liability law. This presentation argues that, like their counterparts in South Africa, litigants in Namibia do not bring their actions directly under the Constitution seeking compensation for breaches of their fundamental rights, and that pursuing that line of action has its inherent problems and negative implications for vindication of litigants’ rights. It suggests a re-think of that approach and practice.