The police are facing a R35 million damages claim by a Pretoria man who was mistaken for a housebreaker. Justice Mabasa was arrested and severely assaulted by police, before being locked in a cell for five days.

Pretoria High Court Judge Peter Mabuse found the police to have been at fault and liable for damages. The amount due to Mabasa, 25, is to be determined by the court at a later stage.

Mabasa is claiming damages for unlawful arrest, detention and assault.

He was arrested in January 2007 while staying with friends in a flat in Durban, where he was completing a course at the Durban University of Technology.

The caretaker at the block of flats saw Mabasa in one of the flats. He had earlier heard glass breaking and did not know Mabasa. He phoned police and reported that the student was a housebreaker.

Instead of establishing the facts, the police immediately arrested Mabasa, assaulted him with batons, and punched and kicked him. The caretaker also sprayed Mabasa in the face with pepper spray.

Judge Mabuse said the lesson learnt from this was that the arresting officer should first check the information given to him.

“It is his duty to assess the information to establish whether such information justifies an arrest. He should not merely rely on the fact that a complaint was made.”

Once an officer had assessed the information given to him, he had the discretion to arrest a person or not, but should not exercise this capriciously, the judge said.

Mabasa testified that he went to Durban on April 22, 2007. He had not yet secured a place to stay, so he went to the Gilrock block of flats, where his student friends were staying. One of his friends, a tenant in one of the flats, obtained permission from the caretaker for Mabasa to stay with him.

All the friends went out that night, but Mabasa was tired from travelling and stayed behind to rest.

As it was noisy in this flat, his friends arranged that he rest in the nearby flat of one of their friends in the same building.

The unsuspecting Mabasa was asleep when strange men entered the flat and, without uttering a word, punched him.

He was pulled out of bed, Mabasa said, and dragged to a waiting car. He was kicked, sprayed with a blinding spray in the face and hit with batons. He was then handcuffed and thrown into a police vehicle.

Police took him to the CR Swart police station, where he was held until he was taken to court, where he heard he was charged with housebreaking.

Thereafter Mabasa was held at the Westville Prison for several days, until the caretaker admitted in an affidavit that he had made a mistake about the identity of the housebreaker.

All charges were then dropped.

While he was being kept at the police station, Mabasa had to be taken to hospital for treatment for the injuries he received in the police assault. He had injuries across his body and his right leg was severely injured.

The caretaker testified that he had been in his flat, next to the one where the “housebreaker” was found, when he heard glass break.

He went to investigate and found the security gate to the other flat open. When he peeped inside, he saw broken glass in the passage and called police.

The police said they received a complaint about a housebreaking. When they got to the flats, the caretaker showed them where the “criminal” was. They did not ask questions as they were told the suspect was inside the flat.

They said they arrested him, but denied Mabasa had been assaulted.

The judge said the police should first have ascertained whether they had the correct suspect, as the caretaker had not seen Mabasa breaking any glass or breaking into the flat.

Pretoria News