CAN A CRIMINAL CASE RUN SIMULTANEOUSLY WITH A CIVIL CASE?

CAN A CRIMINAL CASE RUN SIMULTANEOUSLY WITH A CIVIL CASE?

We wake up every day to find so many reports of crimes allegedly committed and civil lawsuits instituted by and against fellow citizens. The facts are usually sketchy, but you would get the picture in the end and when you do, you would realize that the facts may contain both criminal and civil elements. The question would then be whether the victim or complainant of such a situation can open a criminal case against the suspect, and, at the same time institute civil proceedings against the same person. This question is more relevant now with the increased use of social media where altercations are recorded and virally shared, thus allowing the public to make conclusions as to what course of action should follow.

As a victim or complainant in that situation, your decision or answer to that question will mainly be informed by what or who you know, usually, the Police. But it so happens that sometimes when a person approaches the Police, they are told that what they wish to report does not constitute a ‘criminal offence’ and that such ‘is between the two of you.’ Go and sort it out as a family/friends/between yourselves! The civil route is usually less thought off to start with, as this does not only depend on whom you know (a Lawyer friend, family member/graduate/someone with a law background) but more so on their knowledge of how the judicial system works. A conversation on whether to institute a civil case will most likely end up in a discussion of legal fees, the use of expensive legal terms, and the issue of time – it will take very long for you to get justice! When faced with this, such a person will have to make a turn back to where they started, and that is being a victim or complainant with an unanswered case.

Surely, this is not an ideal situation for so many reasons. First and foremost, Article 1 of the Constitution provides that ‘the Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.’ Rule of law is based on three precepts:
a) The absence of arbitrary power: No person is above the law and no person is punishable except for a distinct breach of the law established in an ordinary manner before the ordinary courts;
b) Equality before the law: Every person is subject to the ordinary law and the jurisdiction of the ordinary courts; and
c) Judicial decisions confirming the common law.

In the context of the question of today, rule of law entails that every deed is subject to the law, and everyone is accountable to the law, criminal or otherwise, for their actions which must be determined in a court of law according to an established legal process. Paramount to this is the principle that every person is subject to the law and the jurisdiction of the ordinary courts. Chapter 9 of the Constitution, therefore, establishes the Courts for this purpose. Article 78 thereof vests the judicial power in the Courts of Namibia, being the Supreme Court, the High Court, and the Lower Courts, and sets them independent and subject only to the Constitution and the law. The Supreme Court has stated in Ex Parte: Attorney-General. In re: The Constitutional Relationship between the Attorney-General and the Prosecutor-General that the independence of the judiciary is inviolable. Judicial power entails the administration of justice, and in the context of today’s question, the power and responsibility to ensure that criminal and civil cases are heard, tried, and settled independently and lawfully.

Perhaps it is now apposite to give a synopsis of the judicial system. Namibia is a common law state in that the legal system is based on common law, being Roman-Dutch, and English law. That common law provides for criminal offenses which may be altered by Acts of Parliament. A criminal offense is therefore an offence against the State and the State must prove all elements of a crime beyond a reasonable doubt. The Criminal Procedure Act 71 of 1977 (the CPA) prescribes the process to be followed in criminal cases. Civil matters on the other hand are disputes between two or more persons. This may come in the form of financial or physical loss suffered by one person because of the conduct or omission of another. The person who suffered such damage may then institute a civil claim against the individual who caused it, and if he/she proves the claim on a balance of probability, may be awarded damages.

As set out at the beginning, there is a relevant question that arises if a situation presents both criminal and civil elements. For a layperson, the confusion is real, and that is where the danger is as such person may seek assistance to assert their rights and give up on the first encounter with an unfavorable answer. I wish to inform you that it is possible to report someone at the nearest Police Station for an alleged crime and at the same time sue that person for a civil claim arising from the same situation. However, you will encounter differences in the roles each person plays, the burden of proof, and the sanctions to be imposed in the end. Should you opt to institute civil proceedings, the defendant will not automatically be held criminally liable, and a criminal conviction will not necessarily mean liability for damages.

Download Law Everyday – Volume 9 of 2022

Fedden Mainga Mukwata – Legal Pundit