Police minister ordered to pay R3.3m to man for ‘malicious’ arrest and detention
The minister of police has been ordered to pay R3.3m in damages to a man detained due to “malice” for two years and eight months.
The Pietermaritzburg high court had ruled in 2021 that the arrest of Mdunyiswa Mtolo on September 12 2011 and his consequent detention and prosecution were motivated by the minister’s servants — the police — with malice.
The matter was then postponed indefinitely for the hearing on the amount of damages to be paid to Mtolo.
The hearing was held from Monday and the court delivered its decision on Wednesday.
The damages were R3m for insult to dignity and deprivation of freedom arising from malicious arrest and detention, R300,000 for impairment of dignity, good name and reputation arising from malicious prosecution and R67,200 for loss of earnings.
This amount is a drop in the ocean compared to what the police pay each year to settle claims against it.
In its annual report for 2021/2022, police said 4,598 payments (court orders and settlements) amounting to R470m were made in the year ending March 31 2022, of which arrest and detention claims were the highest payouts, namely R346.2m.
In this case, Mtolo was arrested in September 2011 on a count of housebreaking with intent to steal and theft of saddles and a separate count of theft of a motor vehicle.
He remained in detention from the date of his arrest after his application for bail was rejected.
On June 24 2013, the housebreaking charge was withdrawn. He remained in custody on the theft of motor vehicle charge until it, too, was withdrawn on June 9 2014.
When Mtolo applied for bail at the Richmond magistrate’s court, the investigating officer opposed that application and testified the accused had been arrested in the stolen motor vehicle that formed the subject matter of the second charge he faced.
“In truth and in fact he had been arrested at his place of employment and not in a stolen motor vehicle,” judge Robin Mossop said.
Mossop said the acting judge who dealt with the matter on merits had found in 2021 there was not an iota of independent and objective evidence against Mtolo linking him with either the theft of the motor vehicle or the theft of the saddles.
Mtolo’s unchallenged evidence was that he made 37 court appearances while detained.
“It is a sad indictment of the justice system generally that a matter can be prolonged for this length of time without judicial objection, only for all the charges to be withdrawn.”
Mtolo testified that the conditions under which he was initially detained at the two police stations were disgusting. The cell at Plessislaer station, where he spent three days, was unclean. Blankets in the cell appeared to have been vomited on but not cleaned and there were blood splatters all over the cell.
He observed members of the police assaulting other detainees and lived in fear that he, too, would be assaulted. Conditions at the Camperdown police station, where he spent two days, were similar to those at Plessislaer.
Mtolo said matters improved when he was removed to New Prison in Pietermaritzburg.
“However, on his arrival at the prison, he suffered the humiliation of being required to strip naked and jump around in front of prison officials and other inmates to establish whether he was in possession of any prohibited contraband concealed on or in his body.
“He had to go through this ritual every time he returned from court — thus he suffered this indignity at least 37 times,” Mossop said.
Mtolo also described the quality of the food in prison as being “poor”. It took him some time to become accustomed to it.
Mossop said the facts of this case were troubling including the length of his detention, and the malice shown by the police.
When those required to protect society in fact preyed upon it, then society was in trouble, he said.
“It must have been a shocking and unnerving experience for [Mtolo] and it appears that he was failed by those who ought to have helped him.
“The powerlessness of his situation must have been overwhelming. These factors must play an important part in determining the amount to be awarded to the plaintiff.”
TimesLIVE
