Overturning two judgements delivered in the Windhoek High Court in December 2017 and October 2018, respectively, the appeal court found that in the treason trial the prosecution had sufficient evidence at its disposal for it to believe in the guilt of former high treason accused Kennedy Simasiku Chunga and Simon Elvin Kauhano and to continue to prosecute them until they were found not guilty in February 2013.
In the High Court's judgements, judge Hannelie Prinsloo found that the continuation of the prosecution against Kauhano after November 2007 and against Chunga after February 2008 had been malicious, as the state should have known after those stages of the trial that it did not have further evidence implicating the two men in respect of the 278 charges on which they and more than 100 co-accused were tried.
In the two appeal judgements written by chief justice Peter Shivute, the Supreme Court found that the state had evidence in witness statements available against both Chunga and Kauhano, and that based on this evidence the prosecution team in the trial had an honest belief in the two men's guilt - although the trial judge found after the state had closed its case that the evidence was not sufficient to place Chunga and Kauhano on their defence.
The evidence available to the state's team in the trial "established reasonable and probable cause to maintain the prosecution", the chief justice stated in the court's judgement on Kauhano's claim to be compensated for damages he says he suffered as a result of having been prosecuted.
With acting judges of appeal Yvonne Mokgoro and Bess Nkabinde agreeing with the chief justice, the Supreme Court referred remaining parts of Chunga's and Kauhano's damages claims, in which they allege that their constitutional rights were violated during their long detention and trial, back to the High Court to be decided.