Namibia, High Court of Namibia Main Division, Windhoek, 31 August 2022, HC-MD-CIV-MOT-GEN-2020/00281 [2022]
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
The application was brought stating that during the Covid-19 pandemic members of the Namibian police force ‘spotted a number of “boys”’ found to have liquor in their possession, namely two 750 ml bottles of red wine, which were confiscated. The Applicants sought compensation for the police action. The Court rejected the respondents’ argument and held that for Covid-19 Emergency regulations to apply, some act or omission, i.e. some act of ‘selling’ or ‘purchasing’ was at least required for the regulation to come into play. The Respondents therefore had to compensate the Applicants for some of the properties confiscated earlier.
Facts of the case
During the Covid-19 pandemic members of the Namibian police force ‘spotted a number of “boys”’ found to have liquor in their possession, namely two 750 ml bottles of red wine. When they asked the “boys” where they had acquired the liquor, the boys informed them “that they … purchased (the) liquor at Omo Mini Market,” the First Applicant’s business. The two bottles of Tasssenberg where confiscated under the terms of Regulation 7(4) with Regulation 7(1)(b) of Stage 2 and the State of Emergency Covid-19 Regulations, per Government Gazette No. 7203 of 2020 which prohibited the sale and purchase of liquor during that period. The ‘boys’ were then taken to the Omo Mini Market which was closed at that time. The Respondents relied on section 26 of the Criminal Procedure to enter the Omo Mini Market. The police officers were led to the Second Applicant who was identified by ‘the boys’ as the person who had sold the liquor to them. The Second Applicant “voluntarily verbally admitted to have sold the liquor to the boys after we had asked him if he had sold liquor to the boys.” The second applicant was then arrested without a warrant in terms of section 40(1) (h) of the Criminal Procedure Act. The police officers further seized all liquor found in the First Applicant’s business as, according to them, they had reasonable suspicion the same was being ‘sold.’ The second applicant thereafter spent four days in custody before he was released by the Ondangwa Magistrate. His case was struck from the roll. However, he subsequently paid a fine as an admission of guilt in the amount of N$ 2000.00.
Type of measure challenged
Measures, actions, remedies claimed
- Order declaring the seizure unlawful
- Order compensating the prospective loss of profits on the sale of goods seized
- Order to return the seized goods within 2 (two) days of the Court Order
- Costs of the lawsuit
- Order declaring arrest and detention unlawful
- Compensation
- Costs of the lawsuit
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The framers of the regulations never intend that all stocks of liquor that would in the normal course of business be found in any liquor outlet, simply become liable to seizure. If that had been intended the framers of the regulations could easily have said so, which they didn’t. Some act or omission, i.e. some act of ‘selling’ or ‘purchasing,’ was at least required for the regulation to come into play. Such scenarios were not given in the instant case as far as the first applicant’s stock was concerned. The Court thus found that the first applicant’s stock had been seized unlawfully and must therefore be be returned. The Court also found that the first applicant had failed to quantify their claims in the absence of an independent evaluation of the stock by an expert who could indicate whether the values claimed for each respective item were fair and reasonable and/or market related. The Court held that the profit margins and the total monthly income and expenditure should have been disclosed and that, since the first applicant had not disclosed what expenses were deducted from the total income, the calculation of which would indicate whether a profit or a loss was made, the first applicant had failed to quantify their claim, which the court thus refused.
Conclusions of the deciding body
The seizure of the First Applicant’s goods on May 14, 2020 was declared to be unlawful. The first applicant’s claim of a loss of profit was refused. The First, Second, and Third Respondents were ordered to pay the First Applicant’s costs of the suit jointly and severally. The claims made by the second applicant were dismissed with costs.
Implementation of the ruling
The First, Second, and Third Respondents were directed to return the First Applicant’s goods within 30 (thirty) days of the court order.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to property
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom to conduct a business
- Health v. property
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court reasoned that the framers of the Emergency Covid-19 Regulations (Government Gazette No. 7203 of 2020) never intended that all stocks of liquor that would in the normal course of business be found in any liquor outlet, simply become liable to seizure. If that had been intended the framers of the regulations could easily have said so, which they didn’t. Some act or omission, i.e. some act of ‘selling’ or ‘purchasing,’ was at least required for the regulation to come into play.
Impact on Legislation/Policy
Limited arbitrary application of Emergency Covid-19 Regulations, Government Gazette No. 7203 of 2020.
Impact on national case law
Complementary
Other notes
On the measures, actions, remedies claimed:
The first applicant sought:
- An order declaring the search and seizure of the First Applicant’s goods on May 14, 2020 to be unlawful.
- An order compensating the First Applicant in the amount of N$25,000.00 as prospective loss of profits on the sale of goods seized.
- An order to members of the First, Second, and Third Respondents’ to return the First Applicant’s goods within 2 (two) days of the Court Order.
- Costs of the lawsuit.
The second applicant sought:
- An order declaring the Second Applicant’s arrest and detention unlawful.
- Compensation to the Second Applicant in the amount of N$100,000.00.
- Costs of the lawsuit.
