In the matter between:. Delict - Arrest and detention - Where arrest and detention not in dispute -Onus on defendant to prove arrest and detention were lawful -Plaintiffs arrested on suspicion of theft of cattle - Court finding that on information received, which the second defendant a police official reasonably believed to be true, second defendant reasonably suspected plaintiffs to have committed a Schedule 1 offence in terms of s.
Delict - Arrest - Assistance offered by fifth defendant non-police official to the second defendant a police official at second defendant's request in arresting the plaintiffs - Court finding that fifth defendant had a statutory duty in terms of s.
Delict - Malicious prosecution - What plaintiff must prove - Court applying elements set out in Akuake v Jansen van Rensburg 1 NR 'the Akuake elements' - Plaintiffs averring that because the charge of stock theft had been withdrawn in earlier proceedings and reinstated in subsequent proceedings that meant the latter was done as a result of the 'instance' of the fourth defendant and therefore the fourth defendant is liable - Court holding that consideration of averment ought to be subjected to the interpretation and application of Article 88 of the Namibian Constitution, dealing with the power of the Prosecutor-General's power as to whether to prosecute or not to prosecute in any individual case.
Evidence - Hearsay evidence - Court confirming what constitutes hearsay evidence - Court holding that statement made to the Police forming the basis of the Police reasonably suspecting the commission of the offence of stock theft by the plaintiffs not hearsay if information is placed before the Court.
Held, that where in a case it is averred that prosecution was carried on at the 'instance' of the defendant the Court must subject the consideration of the averment to the interpretation and application of Article 88 of the Namibian Constitution which concerns the power of the Prosecutor-General to whether to prosecute or not to prosecute in any individual case.
