Cele ordered to pay duo R350K for unlawful arrest

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Cape Town – Police Minister Bheki Cele has been ordered to pay nearly R350 000 in damages, split between two people, for unlawful arrest and alleged assault of suspects in police custody. This after the Supreme Court of Appeal (SCA) found that a confession made during an alleged torture was a violation of the law. The case, which dates to 2005, involves Johannes Mahlangu and Phanie Mtsweni, who were arrested on suspicion of murder. The duo had appeared in a magistrate's court two days after their arrest and remained in police custody until February 2006, when they were released after the director of public prosecutions withdrew the charges against them. During the time of their arrest, an alleged assault by the police on Mahlangu and their detention led the two to claim damages for infringement of their bodily integrity and their rights.

They each claimed R85 000 for loss of income and earning capacity, and R2.7 million for general damages.

The high court in Pretoria had initially found that Mahlangu and Mtsweni had been arrested unlawfully, and that Mahlangu was tortured by the police, resulting in him making an inadmissible confession in which he implicated himself and Mtsweni.

It awarded R90 000 in damages in favour of Mahlangu, and R50 000 for Mtsweni.

The court, however, declined to award any damages in respect of their detention from the time of their first appearance until their release.

The matter was then taken to the SCA, where it was found that the investigating officer’s inclusion of the confession, “knowing that it would not be admissible in evidence, constituted a separate delict”.

“When the plaintiffs appeared in court at their first appearance, the prosecutor was given the entire docket with all the statements, including the confession.

“Lieutenant Mthombeni confirmed that (he) knew that the State prosecutor or whoever was going to deal with this matter at the Department of Justice would rely on this statement for the continued detention of (the plaintiffs).

"He was asked by the court whether it was correct that apart from the (confession) that (Mahlangu) had made there was no other evidence which incriminated him, to which he replied, ‘No, except a statement that I had at my disposal that (Mahlangu) had a relationship with the female deceased and the possibility was that it was him’,” the SCAs judgment read.

“The damages in respect of their detention from May 31, 2005 until June 14, 2005 was assessed to be R100 000. The order of the full court was accordingly set aside with costs, and the Minister ordered to pay Mahlangu the sum of R190 000 and the estate of Mr Mtsweni R150 000,” the judgment read.

The Police Ministry’s communications department had yesterday referred the judgment to their lawyers, and did not respond to requests for comment by deadline.

Cape Times