The police service has been ordered to pay more than R130 000 to two private investigators arrested by an “arrogant and aggressive” police officer on trumped-up armed robbery charges laid by a man they had caught stealing a year before.
Stephen Borain and Jean Pierre (JP) Wittstock, of Is’khumba Senyathi Protection Services, were called to Hillcrest Police Station by Warrant Officer TD Mkhize on September 5, 2008, to “make statements” regarding an allegation that they had been involved in a hijacking.
Instead, the two men, both former police officers, were accused of committing armed robbery, arrested, “mocked” in front of policemen they knew, handcuffed and kept in a cell until a senior public prosecutor intervened and withdrew the charges.
In their evidence in their damages claim, which was heard by Durban High Court Judge Mohini Murugasen this month, they said they had been “extremely humiliated”.
In her judgment on Monday, the judge said the two had been deployed to provide security and surveillance services and programmes for Nonke Petroleum – which transports fuel from Durban to Joburg – because it was experiencing fuel thefts.
In October 2007 they apprehended a driver, Sizwe Kubeka, doing an illegal deal beside the N3, for which he was paid R3 000 in exchange for fuel. Kubeka fled the scene.
They reported the matter to Nonke Petroleum’s management and handed over the money and two cellphones, which they had taken from Kubeka.
The next day Kubeka reported to the police that he had been hijacked.
The police, after checking with Nonke management, believed he was lying and declined to open a case.
Somehow, in August the following year, the charge reared its head again, this time as one of robbery of the money and cellphones, with Mkhize as the investigating officer.
He summoned the private investigators to the police station and then placed them under arrest at about 10am.
They were released on warning that night after their lawyer gave notice to the state attorney that they intended bringing an urgent high court application.
Charges were formally withdrawn the following day.
Finding that Mkhize had acted unreasonably in arresting them, the judge said that he had not done his job properly because there were no grounds on which he could reasonably have believed they had committed armed robbery.
Not only had he not referred to the information in the docket regarding the false hijacking, but it was clear from the evidence he had “already made up his mind”.
Even when a Nonke manager had explained what had taken place the previous year, Mkhize had simply responded that he had a statement from Kubeka, would put the men in jail over the weekend, “and he would see what would happen on Monday”.
The judge said Mkhize’s “obstinate and uncompromising attitude” had been confirmed by other witnesses, who said he had commented that Borain “had the physical stature of a fighter who liked to beat up black people”.
The judge said even when giving evidence, Mkhize had “evinced an arrogant and unco-operative attitude”.
She said both men claimed Mkhize had provoked them by making “personal comments” about them and had processed them in the charge office, in front of other policemen.
They were forced to remove their shoelaces and belts, and Borain had to clutch at his pants to prevent them from falling down. After the incident, they had to convince people of their innocence.
The judge awarded them each R67 900 for general damages and legal costs.