A prison inmate has won his legal action against the Namibian authorities who confiscated and destroyed wooden craft he had with him in his cell. They have been ordered to pay damages to him – and their interpretation of the law, which formed the basis of their confiscation, has also been shown to have been completely wrong.
Alexander van Schalkwyk is a prisoner in Namibia and has spent time in several jails.
Earlier this year he appeared in the high court, Windhoek, in a different capacity, however: not as an accused, but as a claimant who wanted his rights. According to his claim, the prison authorities had destroyed some of his property and he wanted compensation.
While he was imprisoned at the Windhoek Correctional Facility (WCF) he was taught how to make various crafts from wood. He used his own money to buy wood and crafted a number of wooden items.
The ‘relevant authorities’ (the phrase later used by the court) allowed Van Schalkwyk to take his wood crafted items as well as his tools when he was transferred from WDF to another prison, the Hardap Correctional Facility (HCF).
According to Van Schalkwyk, during May 2021, officials of the Namibia Correctional Service (NCS) at HCF searched his cell. During their search, they found, confiscated and destroyed the wooden objects he had made. These included three wooden clocks, a two-drawer cupboard and a wooden photo frame.
They had acted illegally, he said, and now he was entitled to compensation. He wanted common law damages for the destruction of his property, and as an alternative, he wanted compensation for the violation of his rights in terms of the constitution.
In his judgment on the claim, acting high court judge Collins Parker noted that if he were to find for Van Schalkwyk under the common law claim, then there was no need to consider the alternative, constitutional leg of his claim.
The judge said he accepted Van Schalkwyk’s evidence that he had permission to learn woodwork, that he had made wooden items using wood and tools that he had bought out of his own money and that he had been allowed to take these things with him when he moved to HCF.
He also accepted the evidence of the defence witnesses (members of the prison staff) that Van Schalkwyk was allowed to continue his woodwork at HCF, ‘but that he was to leave any wooden items and tools in a storeroom’ where he did his woodwork.
The defence witnesses also all agreed in their testimony that the wooden items were confiscated from Van Schalkwyk’s cell ‘because [he] did not have written authorisation … by the commissioner general of the NCS to keep the wooden items in his cell.’
According to their evidence, authorisation for a prisoner to keep the wooden craft items in his cell was required by s 79(2)(b) of the Correctional Services Act. Because of this requirement, not adhered to by Van Schalkwyk, they did not deny his allegations that they had taken his wooden items.
But were they correct about s 79(2)(b), the section of the law under which the defendants claimed to have had the power to confiscate and keep the wooden items? The judge pointed out that this was an essential question because, as previous supreme court decisions had stressed, ‘administrative bodies and administrative officials may only act in accordance with powers conferred on them by law, either by the constitution itself or by any other law.’
The defendants said that authorisation by the commissioner general of the NCS was required in terms of a ‘standing practice’. But a standing practice was an administrative act by an administrative official, said the judge. And ‘the NCS official who issued [the standing practice] could only to do in accordance with powers conferred on him or her by law.’
Commenting on the argument by defendant’s counsel, the judge said that this ‘piece of legal reality’ – namely, the authority of a ‘standing practice’ being dependent on the powers delegated to him or her – seemed to have been lost on her.
The court didn’t actually deal with the content of s 79(2)(b) in the judgment, but accepted the submission of Van Schalkwyk’s counsel that the section didn’t apply to inmates.
From a glance at the section, however, it’s difficult to understand how prison officials made this mistake: Section 79, dealing with ‘possession of prohibited article’, could hardly be more plain. The section clearly states that it applies to anyone ‘other than an offender’ who has a prohibited article in their possession. That non-prisoner would be guilty of an offence unless (under subsection 2) that person has written authorisation from the commissioner general to retain it or remove it from the prison.
There’s thus no doubt that the section refers to outsiders who might come to a prison and bring with them, or take away, a prohibited article, without official written permission to do so.
Unlawful and invalid
‘That being the case,’ said the judge, ‘the issuance of the standing practice [in terms of s 79(2)(b), authorising the confiscation of the wooden items in the cell] was not done in accordance with law; and so it is unlawful and invalid. It follows indubitably that the seizure and keeping of the plaintiff’s wooden items were unlawful and invalid.’
Since Van Schalkwyk’s action had thus to succeed, he was entitled to judgment for damages and there was no need to consider the alternative claim for constitutional damages.
But how much should the court award? Van Schalkwyk, who claimed N$300 000 in damages, said he had sold one large clock for N$1 200 (though this was not pleaded). The price of the two-drawer cupboard and the photo frame was also not pleaded. The court found there was no proof of quantum for the items removed, and Van Schalkwyk didn’t even allege and prove the cost of the materials used to make the wooden items even though this question was important for his claim.
The judge concluded that he was ‘at large’ to determine the price of the items, despite not having any proof of the value and that he should try to give Van Schalkwyk ‘some relief, since he has been successful in proving delictual damages, though not the quantum thereof.’
‘I am prepared to peg the price of one large clock at N$200, the two-drawer cupboard at N$300 and the wooden photo frame at N$100,’ he concluded
The upshot is that the defendants have been ordered to pay Van Schalkwyk N$1 000 plus interest.
But there is another effect of the judgment: the prison authorities have been decisively shown up. They have been wrong in the way they have interpreted and acted on s 79(2)(b), and in the standing order that resulted from this mis-interpretation. They have in fact been acting unlawfully – and it took a prisoner to prove it.