The Constitutional Court has now ordered that two men were entitled to damages for the eight months and 10 days they had spent in jail after their unlawful arrest. Picture: File
The Constitutional Court has now ordered that two men were entitled to damages for the eight months and 10 days they had spent in jail after their unlawful arrest. Picture: File

Police to pay for innocent pair’s wrongful arrest

By Zelda Venter Time of article published May 18, 2021

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Pretoria - The brutal torture by a police officer to force an innocent man to confess to a gruesome killing resulted in his co-accused being falsely implicated, the Supreme Court of Appeal has said.

This was the latest episode in the quest for justice by Eugen Mahlangu and the family of the now late Phanie Johannes Mtsweni, which has made a full circle in the courts.

They each claimed R2 700 000 in general damages and R85 000 for loss of income in the Gauteng High Court, Pretoria

They had served an eight months stint in jail before the real killers were caught and sentenced.

That court, however, only awarded damages for the period from the date of arrest until their appearance, with the judge reasoning that they could have applied for bail at that stage.

Mahlangu was awarded R90 000 and Mtsweni R50 000 for the time they were held in custody, from May 2005 until the end of February 2006.

The matter went on appeal before a full court of three judges which confirmed the first order.

The Supreme Court of Appeal subsequently also ruled that they could not claim compensation for the entire time they had spent in jail.

But the Constitutional Court has now had a final word and ordered that both men were entitled to damages for the eight months and 10 days they had spent in jail after their unlawful arrest and detention.

The judges of the apex court commented that liberty was one of the cornerstones of the Constitution. They also reasoned that the Police Ministry should be held liable for the conduct of the officers.

It emerged an officer had remained tight-lipped for months about him having beaten Mahlangu into a false confession, which led to Mtsweni’s arrest.

The tragic events were sparked in May 2005 when a family of four – a father, a mother and their two children – were brutally murdered in Middelburg.

One of the children was a little girl who was also savagely raped. The third child, a 3-year-old girl, survived the ordeal.

While witnesses who had discovered the bodies could not implicate anyone, one of the investigators, only identified as Lieutenant Mthombeni, decided to go to Mahlangu’s home nearby and arrest him.

He denied any knowledge of the crimes.

In order to force him to admit that he had committed the crimes, they placed his legs in irons, handcuffed his hands behind his back and repeatedly suffocated him by placing a rubber tube or a plastic bag over his head.

This lasted for several hours and Mahlangu ultimately succumbed and confessed to crimes he had not committed. When asked how he killed the deceased persons, he initially said that he had shot them with a firearm, which was wrong.

The family were attacked with a knife, and on second guessing after prompting from the police, Mahlangu said he had used a knife.

The police officers insisted that he could not have committed the crimes on his own and forced him to identify another person. He identified Mtsweni, who was merely his acquaintance and neighbour, as a co-perpetrator.

Although the SAPS officers knew they were innocent, the police did not say anything to the prosecution until the real culprits were caught. This resulted in the pair’s long stay in jail.

In deciding how much damages should be awarded, the ConCourt now said they were detained under very unpleasant circumstances, to say the least.

Apart from knowing they were innocent, the pair were subjected to attacks by other inmates who claimed they were relatives of the dead family members. They had to be kept in solitary confinement for at least two months for their own safety.

“No amount of compensation can undo the humiliation and human rights violations suffered by the applicants,” the judges said.

Mtsweni meanwhile died, but his R500 000 portion will be paid to his estate.

Pretoria News

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