Two men awarded R1 million for unlawful arrest and police procedural flaws

Bungling by a police officer in not following the law by arresting and detaining two assault suspects without a warrant, as well as an informal mediation agreement which saw the victim withdrawing the charges in return for R2000 compensation, has left a judge with a sour taste in the mouth.

Gauteng High Court, Pretoria Judge Mandlenkosi Motha had no choice but to order compensation to the two suspects after they sued the police for unlawful arrest and detention. In following the law, he concluded that they had proven their case that their constitutional rights were violated.

Subsequent to this, the judge also had to apply the letter of the law and award them compensation for the nearly two months they had to spend in jail awaiting trial. Sello Mkwanazi was awarded R500 000 while the police were ordered to pay Peter Sethole R550 000.

But the judge, after commenting that this left a sour taste, said: “I cannot help but imagine a situation where one stabs someone and then pays him or her to drop the charges with the blessings of the prosecutor and the court.”

Judge Motha further commented that the pair were compensated with about half a million each, while at the same time, the victim is left in the lurch. “Or, in this case, his constitutional right to bodily and psychological integrity is worth R2000”. 

The judge added that “surely, there is a crying need to develop the law to protect the constitutional rights of victims, lest some rights become more equal than others".

The two plaintiffs were arrested at their work following the earlier alleged stabbing of another man in a pub. The latter had to get ten stitches for his wound. The two remained in jail for nearly two months after the arresting officer “forgot” to tell the court that she was not opposing bail.

The plaintiffs' attorney meanwhile negotiated a mediation agreement with the prosecutor in the pair’s assault trial. 

The prosecutor testified that she was asked by the attorney to explore entering into an informal mediation agreement with the complainant. This is a method employed in certain cases, in an attempt to finalise criminal matters by inviting the accused and complainant to a round-table discussion. 

In this case the victim said he would accept compensation of R2000 from the accused not to proceed with the charges. The prosecutor said the necessary documents were signed and the charges were withdrawn.

In their subsequent damages claim against the police, in which the pair said their constitutional rights were trampled on, it came to light that this was so. The arresting officer was not aware of the law which states that in some lesser serious offences, suspects can only be arrested without a warrant and detained as a last resort. Confronted with this in court, she repeatedly said she was entitled to do so as they faced serious charges.

The court concluded that the sergeant who arrested and detained the pair did not exercise her discretion at all, let alone in a rational manner. Judge Motha added that it was clear to him that she also did not understand her role in bail proceedings. 

He commented that any arrest and detention without a warrant in South Africa is prima facie unlawful, unless justified in law.

Cape Times