The Minister of Police and National Director of Public Prosecution have been ordered by Free State High court to pay four our of five applicants a total pf over R4 million for unlawful arrest, detention and malicious prosecution.
This as Judge Mthimunye delivered judgment on the 24 August 2022 following a marathon case that was heard over four days.
Background
This is a delictual claim against the Minister of Police and the National Director of Public Prosecutions for an alleged unlawful arrest, unlawful detention and malicious prosecution respectively. This claim was brought by four plaintiffs viz Thieho William Mofokeng, Jacob Saoana Letuka, Osiah Sehlako Maqaesa and David Tlale Tladinyane.
Thieho William Mofokeng, the first plaintiff, has since become deceased and Counsel for the plaintiffs, at the onset, requested that Mr Mofokeng’s claim be postponed sine die pending the finalisation of his deceased estate. The matter proceeded in respect of the second, third and fourth plaintiffs, to whom I refer throughout this judgment as the plaintiffs, unless the context indicates otherwise.
The plaintiffs were arrested at different times viz 12 May 2013, 23 May 2013 and 5 May 2014 and were collectively charged with murder, attempted murder, robbery with aggravating circumstances and housebreaking with intent to steal and theft. At their first appearance they were all denied bail in the lower court.
Their case was subsequently moved to this court where they again applied for bail in February 2017.
The second and third plaintiffs were granted bail whilst the fourth together with one Thabang Makoko Mmaki, who was the first accused were denied bail. All of them were subsequently discharged by judge Mathebula in terms of Section 174 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
On 27 August 2019, the Plaintiffs issued summons suing the Minister of Police and the Director of Public Prosecutions for Unlawful Arrest, Detention and Malicious Prosecution respectively, claiming a total of R4 000 000.00 (Four Million Rand) for contumilia, emotional stress and psychological trauma, loss of amenities of life, loss of income, and general damages.
At the beginning of the trial, the parties agreed that the Plaintiff’s case be dealt with first and that there would be no separation between merits and quantum. This court was ceased with making a determination on both.
The plaintiffs have also prayed for costs for the duration of this trial in the event that this court finds in their favour. For this reason, I deem it necessary provide a chronological history of this matter prior to summarising the evidence.
The hearing was set down to commence on 25 January 2022, on which day both Counsels requested that the matter be stood down to 26th January 2022 as the plaintiffs’ Counsel had just received the records of the bail proceedings and needed time to read through.
The matter was then heard on 26th and 28th January 2022 at the end of which the plaintiffs closed their case. It was then postponed to 22nd, 23rd and 25th March 2022 for the defendant’s case. Although the defendants had stated that they would call three (3) witnesses; on 22nd March 2022 they called only one (1) witness and closed their case. By agreement from both Counsels, the court then directed the plaintiffs to file their heads of argument by 4th April 2022 and the defendants by 8th April 2022. A date for arguments would be communicated to both parties once both heads have been filed.
Heads of argument were finally filed by the Plaintiff’s on 25th April 2022 and by the Defendants on 03rd May 2022. To both Counsels I am most grateful as I refer to their heads in this judgment. Following some logistical glitches, arguments were finally heard on 26th May 2022, at which stage this judgment was then reserved. I deemed this explanation important as Counsel for the plaintiffs has asked this court for costs for the 6 days that were allocated for the hearing of this matter, notwithstanding that the last two days were not utilised.
What is interesting about this case is how the police and NPA conceded to have arrested the applicants without warrent of arrest as judge Mthimunye puts it.
“For purposes of completeness, it is noteworthy that the plaintiffs were arrested between 12th May 2013 and 3rd May 2014. The defendants admit that the plaintiffs were arrested without a warrant or arrest.
Their first appearances were between 14 May 2013 to 5th May 2014. Summons were issued on 27th August 2019, five years after the arrest took place.”
What is common about this case and other cases is police seem to draft statements and hand them to the accussed persons to sign only for the accused persons to be shocked in court that they signed the statements when they did not even know what they were signing.
“On arrival at the police station, the police decided to drive back home with him, got inside his rooms and collected an amplifier he had borrowed two days before his arrest from the first plaintiff, who is now deceased. He had borrowed the amplifier from the first plaintiff because his music system was damaged and his intention was to return it after his was fixed. They never told him the relevance of the amplifier other than saying it belonged to the first plaintiff.
Back at the Police Station, he was given some paper to sign without any explanation of what it was. Only in the cells did one inmate tell him that those were his rights. He cannot read Afrikaans or English and no one explained the document to him.”
Before judgment judge Mthimunye dealt with costs.
“Counsel for the plaintiffs requested costs including costs of accommodation for the two days that were not used i.e. the 22nd and 25th of March 2022. In exercising my judicial discretion, I am not convinced that granting these costs would be appropriate.
I hold a view that the plaintiffs’ counsel would have been able to cancel the accommodation and recoup the costs, especially because the matter was finalised just before lunch on day one of the final three days. Similarly, with travelling arrangements, flight tickets could have been moved forward. In any event plaintiff’s counsel would still have to back to Gauteng regardless of when the matter would have been finalised. For this reason, I am not inclined to grant the travelling and accommodation costs for the 23rd and 25th March 2022.”
In the result, I make the following order:
1. The claim in respect of the First Plaintiff is postponed sine die.
2. The defendants shall pay to the plaintiff’s the following amounts as compensation:
3. Second Plaintiff
3.1. An amount of R1 300 000.00 (One Million Two Hundred Rand) for the entire period of detention.
3.2. An amount of R250 000.00 (Two Hundred and Fifty Thousand) for malicious prosecution.
4. Third Plaintiff
4.1. The third Plaintiff, an amount of R1 400 000.00 (One Million Four Hundred Rand) for the entire period of detention.
4.2. An amount of R250 000.00 (Two Hundred and Fifty Thousand) for malicious prosecution.
5. Fourth Plaintiff
5.1. An amount of R1 400 000.00 (One Million Four Hundred Rand) for the entire period of detention.
5.2. An amount of R250 000.00 (Two Hundred and Fifty Thousand) for malicious prosecution.
6. The defendants shall pay interests at the applicable legal rate on the said amount from 14 (fourteen) days from the date of judgment to the date of payment.
7. The defendants shall pay the plaintiffs’ agreed or taxed costs, including costs of Counsel, travel and accommodation for 4 days.
Legal Aid got them acquitted in 2017.
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