Police ordered to pay R5m over 2011 wrongful arrest
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Johannesburg - Police have been ordered to pay R5 million as damages to an Eastern Cape man that was arrested for no reason whatsoever in August 2011 and only released five months later.
Nkululeko Msongelwa was arrested at a tavern where he was enjoying himself with his girlfriend and friends. Police arrived and ordered the patrons to face the wall with their hands up and bodily searched them.
He was told that he was under arrest, but no reason was given.
Msongelwa made these submissions before Judge Bantubonke Tokota at the Mthatha High Court.
Police did not dispute any of his evidence before Judge Tokota.
Represented by attorney Wycliff Thobela Mnqandi, police closed their case without leading any evidence.
The arrest was only the beginning of Msongelwa’s ordeal that ended on 12 January 2012, when he was released without being charged.
He was shot on the ankle during the arrest as he resisted. While bleeding, he was handcuffed and thrown on the back of a police van and sustained a fractured ankle.
Msongelwa was transported to the Mandela hospital where he was detained under armed police guard.
There he was handcuffed throughout the night and the handcuffs would only be removed when going to the toilet.
Friends and family would visit him in the presence of the police. From the hospital, he was taken to Mqanduli police station where he was detained in the police cell. His ankle had still not healed.
He testified that the cell was small and they were made to lie on thin mattresses. The inmates ill-treated him, he told Judge Tokota. Other inmates were made to frog-jump and were slapped if they refused.
It became clearer that he had been arrested for nothing when he started appearing in court. He appeared in court several times and the matter was always remanded.
The prosecutor even made adverse remarks against the investigating officer, criticising him for his failure to come to court.
The prosecutor's remarks, which Msongelwa's lawyers placed before the judge, read: “I/O I am disappointed, this case is remanded 5 times … and you don’t avail yourself all the time. You have also not done bail form up till now!!! You have also not done anything since the 23/8/11. Why???”
“This case had been neglected (and) corrective measures must be taken against I/O for failing to comply with instructions for bail application and carry on with investigation.
"Capt. Vakala attend.”
In the judgment he delivered this week, Judge Tokota blasted the police. “… It is clear that the investigating officer, if ever there was one, had no interest whatsoever in the matter from the beginning to the end.
“It is clear to me that the conduct of the police in the whole matter was reprehensible,” said Judge Tokota.
The State will now part with R5m for the police’s improper work.
“The defendant is ordered to pay to the plaintiff the sum of R5 million as and damages in respect of the claim for unlawful arrest and detention such sum to be paid within 30 days from the date of this order,” ruled Judge Tokota.
Police were also ordered to pay the costs of the lawsuit, including costs of two counsels.