Johannesburg - Lawyers for two men who were awarded damages for two weeks’ detention though they were imprisoned for nine months after being arrested for heinous crimes they did not commit are off to the Constitutional Court.
Last April, the Supreme Court of Appeal (SCA) ruled in a majority judgment that police were not liable for the detention of Johannes Mahlangu and Johannes Mtsweni post the bail stage.
The police minister was ordered to pay the two Mpumalanga men a combined R340 000 of which R190 000 would go to Mahlangu and the remaining R150 000 to Mtsweni. The payment to Mtsweni would go to his estate because he has since died.
The neighbours in Mhluzi were unlawfully arrested and detained in 2005 for the murder of four family members. Vusi Motebu, his partner Thuli Mathebula and two minor children were killed in their home.
Days later, Mahlangu was arrested by Lieutenant Emson Mthombeni at his home. It was common cause that Mahlangu was taken to the police station, tortured and forced to confess.
Mahlangu made a false confession under duress, after which he identified Mtsweni as his supposed accomplice.
Mthombeni placed Mahlangu’s forced confession in the docket, resulting in the pair facing a murder trial.
Without bail, they remained in custody for nine months. Then the director of public prosecutions declined to prosecute the pair, resulting in their release on February 10, 2006. By this time the real killers, Dumisani Makhubela and Johannes van Rooyen, were linked to the crime by fingerprints and DNA and jailed for life.
In submissions at the apex court, lawyers for Mahlangu and Mtsweni’s estate argued that the SCA erred by finding that police cannot be held liable for the rest of their clients’ detention. The litigants said the SCA essentially found that despite a confession obtained by torture and which influences the prosecutor to oppose bail, police were absolved of blame after the arrestee’s first appearance.
A correct ruling would take into consideration the test of legal causation, said the litigants, and “then the respondent should be held liable for the full duration of the detention”.
“Mr Mthombeni subjectively foresaw the precise consequence of the unlawful arrest of the first applicant.”
The court will hear that Mahlangu should be awarded R850 0000, and Mtsweni’s estate should get R650 000.
The police ministry opposed the application: “The majority were correct in finding … that the Minister of Police’s liability for the continued detention of the applicants cannot extend any further than the stage where the applicants could reasonably be expected to have pursued bail.”
Mahlangu did not apply for bail throughout his detention and Mtsweni was refused bail, said the ministry.
“The applicants did not, in any other manner, challenge the lawfulness of their detention, and thereby seek their release from detention.”
@BonganiNkosi87
The Star