Minister must cough up R200 000 for unlawful detention

Date: 14 April 2018 By: Isabel Venter

For the umpteenth time, the Minister of Police will have to fork out thousands to pay for damages after the police in Musina unlawfully detained a man.

The North Gauteng Court ruled in favour of Mr Given Muleya in February this year.

Munyai’s case stems from an incident more than four years ago, when he was kept in custody for longer than the prescribed 48 hours. On Saturday, 1 March 2014, Muleya and another man were placed in police custody - ironically enough initially for their own protection.

According to Muleya he was in front of a local tavern, when the police arrived with members of the Youth Against Crime group. He testified that as he was about to leave, somebody told him that the police are calling for him.

When he walked over, Muleya testified that he was slapped through the face by a Const Motamaro. Muleya further testified that the police started assaulting him by kicking him and by hitting him with sjamboks. He was, however, not sure whether it was the police or members of the community who assaulted him, because at one stage he covered his face with his arms while he was being assaulted. Muleya denied that he ever pointed an airgun at anybody.

Testifying for the police and in his own defence, W/O Mashulu Mathobo told the court that on the specific day, members of the community street patrols informed the police of two men being assaulted outside a local tavern. He testified that Muleya was one of the men being assaulted. He then took Muleya and the other man and placed them in in the back of his police van with the intention to take them to the Musina police station for their own safety.

Mathobo testified that, while in the back of the van, a community member on the outside, De Bruin Shibambo, insisted that Muleya was pointing at him with an airgun. This then resulted in Muleya being charged, after Shibambo had given a statement and laid a charge against him.  Unfortunately, Muleya was not given the option to pay bail and he was held in custody over the weekend and only released the following Monday when his case was struck from the court role.

Muleya approached Mr Hennie Erwee, a local attorney from Musina, to sue the Minister of Police, for his wrongful arrest and assault.

In his 19 February ruling, Judge J Strydom said that he had to dismiss the claim of assault as Muleya’s version of the events was highly improbable. Judge Strydom was impressed by Mathobo’s evidence, saying that there was nothing to cast doubt on the veracity concerning the actual incident and subsequent events. The judge believed Mathobo’s account that he had to intervene to prevent Muleya and the second man getting assaulted by other members of the community.

As for placing Muleya under arrest, Judge Strydom said that Mathobo applied his discretion objectively in so far that he had a valid suspicion that an offence, the pointing of an airgun, was committed. “I am also of the view that the suspicion rested on reasonable grounds,” Strydom further added in his verdict.

He further explained that Muleya failed to proof Mathobo exercised his discretion in an improper or unlawful manner. Judge Strydom said that according to the Criminal Procedures Act (Act 51 of 1977), that a suspicion is regarded as reasonable despite there being insufficient evidence for a self-evident case. “I am of the view that the evidence of Mathobo revealed clearly that Muleya was pointed out by the complainant as the person who pointed him with an airgun,” said judge Strydom.

The fact that Muleya was detained for more than the prescribed 48 hours was the main reason why judge Strydom endorsed Muleya’s claim of an unlawful arrest and that he should receive R200 000 in damages with costs.

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Isabel Venter

Isabel joined the Zoutpansberger and Limpopo Mirror in 2009 as a reporter. She holds a BA Degree in Communication Sciences from the University of South Africa. Her beat is mainly crime and court reporting.

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