- October 8, 2023
- |Concise Law Reports (CLR), Legislation
The plaintiff, Petrus Fridel Frederik, is a Namibian citizen serving a 35-year sentence at the Evaristus Shikongo Correctional Facility. The defendants include the Minister of Home Affairs, Immigration, Safety, and Security (first defendant), the Commissioner-General of the Namibian Correctional Service (second defendant), and several correctional service officials (third to twelfth defendants) at the same facility.
The plaintiff’s claim revolves around seeking damages for an alleged unlawful and intentional assault, as well as handcuffing, by the defendants. The incident in question took place on or around December 16, 2019, when the plaintiff alleged that he was assaulted by these correctional service officials while they were acting within the scope of their employment under the first defendant.
In response to the plaintiff’s claim, the defendants raised two special pleas. First, they argued that the plaintiff failed to provide statutory notice as required by Section 133(4) of the Correctional Service Act 9 of 2012. Second, they contended that the claim was time-barred as it was brought outside the mandatory one-year period prescribed by Section 133(3) of the same Act.
The plaintiff admitted to not providing the required notice and acknowledged that his action was instituted more than one year after the cause of action occurred. However, he disputes the applicability of Sections 133(3) and (4) of the Act to his case, asserting that the defendants’ actions were not in pursuance of the Act but occurred within the scope of their employment with the first defendant.
RAKOW J
Section 133(3) and Section 133(4) of the Correctional Service Act, 2012 play a central role in this case. Section 133(3) establishes a time limit for instituting civil actions against the Correctional Services officials. It states that such actions must be brought within a specified timeframe, and if not, the claimant is legally barred from pursuing the action. Additionally, Section 133(4) requires written notice to be given to the defendants at least one month before the commencement of the action, stating the cause and claim details.
Legal precedents have emphasized the importance of compliance with these sections. They underscore that failure to meet the time limit set in Section 133(3) bars a claimant from pursuing an action, regardless of providing written notice as required by Section 133(4).
The purpose of the notice, as indicated in legal cases, is to sufficiently inform the State of the proposed claim, enabling them to conduct an investigation. However, this notice need not be as detailed as a formal pleading, as confirmed by judicial decisions in similar legal contexts, such as the Police Act.
‘[13] The statutory precondition set by subsections 133(3) and 133(4) has not been met in this instance, or if it was, it was not pleaded as it should have been. The special plea must therefore be upheld and the action of the plaintiff dismissed with costs.
As a result, the action was dismissed with costs.