Judge grants rogue cop's victims R1.9m in damages claim

Taxpayers have to foot almost R2m in damages for a top Hawks sleuth’s heavy-handedness.

The saga initially played out at the offices of an Eastern Cape municipality six years ago and ended up in the high court in Makhanda on Tuesday.

According to a ruling handed down by acting judge Sunil Rugunanan, Capt Luphumlo Lwana descended on the Senqu municipality’s offices, in Lady Grey, in July 2013 to arrest municipal manager Mxolisi Yawa for corruption. However, he ended up arresting his lawyer, Andre Schoombee, and several other employees.

At Lwana’s insistence, Yawa, his personal assistant, Octavia Bambilawu-Monnawabokone, the mayor’s driver, Tokoshe Adam, Nozibele Mtyali and Schoombee were “each falsely charged with assault, obstructing a police officer in the performance of his duties”.

The charges were provisionally withdrawn and reinstated after Lwana threatened prosecutor Rhona Scheun “with arrest for obstruction of justice”.

They were tried in the regional court in Lady Grey, until the director of public prosecutions stopped the prosecution in March 2018, after 25 appearances. They sued Lwana and the minister of police for damages ranging from malicious and wrongful arrest to medical costs, trauma and assault.

Lwana, who was accompanied by several police officers, was arrested in front of “politicians and senior managers of the municipality who report to him”, as well as Schoombee. The municipality’s director of integrated planning, Palesa Bushula, filmed the arrest on her cellphone. It was also captured on CCTV.

“At the arrest, Mr Yawa was partially handcuffed and paraded through the municipal office to the main entrance,” the judgment read.

“He was humiliated upon noticing onlookers with cellphones taking video footage or photographs of him which he believed would be circulated on social media. He was escorted by police van to the police station where his spectacles were confiscated. He was unable to see clearly without them.”

On that day, Schoombee, who was travelling to Bloemfontein with his wife, was called to the municipal offices to “assist in resolving the impasse with [Lwana] who did not proffer an adequate explanation for his presence at the municipality nor was he prepared to identify himself to Ms Bushula and to ... Yawa”.

While talking to a local magistrate, arranging for Yawa’s release on bail, two policeman called him to Lady Grey police station, where Lwana arrested him.

“[Lwana] was accompanied by about 10 policemen all of whom were armed,” the judgment reads.

“On seeking clarification as to the reason for his arrest, [Lwana] condescendingly said to him that he should know his rights. He was denied the opportunity to properly exercise his constitutional right to consult with his legal representative and was forced to scream instructions through the bars of the holding cell in which he was detained.

"[Lwana’s] conduct relevant to the bail proceedings was obstructive. The docket was not timeously brought to court and [he] proposed a ridiculous amount of R10,000 for bail.”

Schoombee was released on warning. His arrest affected his productivity and “caused him to suffer loss of income for an undefined amount. Due to the development of an excessive drinking habit, his relationship with his wife was placed under strain with a threat of divorce; he felt humiliated by reports in the newspaper and over the radio, suffered nightmares, was prescribed anti-anxiety medication and consulted two psychologists.”

Meanwhile, Bambilawu-Monnawabokone exhausted her medical aid on a psychologist, a psychiatrist and a social worker following her arrest.

According to the judgment, Lwana and a “female Constable Duma” took her from work on July 1 2013 and “nothing was said about where he intended taking her, other than that it had to do with an investigation involving corruption in the municipality and that he did not need anybody’s permission to take her from her workplace”.

Bambilawu-Monnawabokone could only take her cellphone.

“She was ushered into a vehicle driven by [Lwana]. While seated on the back seat she realised that the child locks of the rear doors were engaged. Constable Duma received a call on her cellphone and she overheard her telling the caller that she was on her way to Sterkspruit,” the judgment reads.

Bambilawu-Monnawabokone became anxious when the car headed towards Bloemfontein instead of Sterkspruit.

Lwana then told her that he was going to Bloemfontein because he wanted to meet her mother, Elza Bambilawu. He said he required details of her “business relationship with the municipality relating to the provision of accommodation of the municipal manager Mr Yawa”.

According to the judgment, Lwana also wanted to know if Bambilawu was aware of a “sexual relationship” between her daughter and Yawa.

The meeting in Bloemfontein ended abruptly and they returned to Lady Grey, where she was told that the municipality had opened a case against her. Bambilawu-Monnawabokone took time off from work to seek medical help.

“In the period prior to her return there were media reports about her relationship with Mr Yawa. Her relationship with her partner, to whom she was engaged to be married, suffered considerable strain,” the judgment reads.

She was admitted to Hillandale hospital for three weeks, where she was treated with antidepressants and sleeping pills. She remained dependent on medication until December 2013. Her medical aid was exhausted and she incurred medical expenses amounting to R84,000.

Adam, who witnessed Yawa’s arrest, said Lwana assaulted him. CCTV footage showed Lwana pushing several people around, including Adam.

“Mr Adam confirmed that ... Schoombee was arrested in his presence. Shortly thereafter he was also arrested by [Lwana], whom he stated did not proffer a reason for the arrest. He was ushered into the police station by police officers who were armed with what he described as ‘those big firearms’,” the judgment reads.

“The following day and after appearing before a magistrate he was released on bail of R1,000 with conditions. Initially the second defendant proposed bail of R10,000, which Mr Adam could not afford. Being precluded from returning to work by operation of his bail conditions, Mr Adam spent much of his time at home. The house in which he lived is in the same street as the municipality. He would hear passers-by shouting out that he and the others were thieves, with the resounding echo of 'pay back the money'. In 2016 he felt obliged to relocate to Herschel, which is about 20 kilometres away from [Lady Grey].”

The lawsuits were consolidated in April and the minister of police “conceded liability”, while Lwana “made no appearance”. Rugunanan awarded Schoombee, Adam, Yawa and Bambilawu-Monnawabokone a total of R1.9m in damages.

Meanwhile, Yawa was “convicted of making a misrepresentation to the municipality about his entitlement to accommodation pending the municipality providing him with a house, which it was obliged to do in terms of his employment contract”.

He is appealing the conviction.

In a separate lawsuit, before the same court, the police minister and Lwana were ordered to pay more than R400,000 to Bushula in 2017. Lwana arrested Bushula on charges of defeating the ends of justice, interference, assault and resisting arrest, after she had filmed Yawa’s arrest.

In the matter, Lwana admitted to using a “measure of force” to relieve Bushula of her cellphone and claimed he confiscated the gadget because it formed part of the fraud matter he was probing.

Bushula said she had met Lwana in a meeting room at the municipality and asked to see his identification, but he refused. Lwana proceeded to arrest Yawa.

Judge Geraldine Beshe held the minister of police and Lwana liable, and ordered them to pay R250,000 for wrongful arrest and detention, R100,000 for malicious prosecution, R50,000 for assault and damages, and R40,000 for theft.