Court tells cops to pay EC man R1.5m for wrongful arrest, detention and malicious prosecution

The high court in Bhisho has awarded damages of just over R1.5m to a man who was mistakenly arrested and assaulted while in detention.

The high court awarded damages of R1.050m to Ntobeko Nxomani in his case against the police minister in respect of his claims for unlawful arrest and detention, and for subsequent detention and assault. It also awarded Nxomani damages of R500,000 for malicious prosecution against the minister and the national director of public prosecutions.

Nxomani was arrested without a warrant after a vehicle belonging to British American Tobacco SA was hijacked and its driver, Thembile Skenjana, robbed of his cargo of cigarettes and a cellphone at gunpoint.

Two men robbed Skenjana as he was delivering cigarettes at a tavern known as “Uyandichaza” at Unit P in Mdantsane on May 22 2015.

According to the judgment, released on Wednesday, the minister defended the arrest, and said Nxomani was suspected of being involved in the armed robbery.

The minister said police members followed up information provided by Skenjana, who informed them the people who hijacked him were driving in a motor vehicle driven by Nxomani.

The minister said when police members arrested Nxomani, they found the tobacco that was taken from the tobacco vehicle at the scene where Nxomani was arrested.

The minister said these circumstances presented reasonable suspicion that Nxomani was involved in the commission of the offence and as such his arrest was not wrongful and unlawful.

The minister also denied that Nxomani was assaulted during the course of his arrest.

The minister and the prosecutions head also denied the claim of malicious prosecution. They said that after investigation by police, it was revealed that Nxomani was reasonably suspected of committing armed robbery and hijacking, and they were justified in arresting and prosecuting him.

However, it turned out that Nxomani was also a victim of hijacking that same day.

The police officer who had arrested Nxomani had claimed that Skenjana had identified Nxomani as one of the robbers. This was not true, the court found.

During the criminal trial, the owner of the Suzuki Ertiga motor vehicle — who had hired Nxomani as a taxi driver — supported his version that he was also a victim of crime on the day the BAT truck was hit.

She said when Nxomani called her after initially speaking to a police officer to report that her vehicle had been seized by the police, Nxomani was cut short in his explanation to her that he himself had been the victim of a hijacking.

“In my view no reasonable and probable cause existed for the police to charge (Nxomani) with robbery with aggravating circumstances on the basis that he was complicit with the two perpetrators whom Skenjana described in his statement,” judge Belinda Hartle said in the judgment.

Nxomani was arrested on May 22 2015 and first appeared in court on May 25 2016. For this period of detention, the court awarded him damages of R100,000 for deprivation of his liberty.

For the period from May 25 2015, until his acquittal on December 20 2016, Hartle agreed with Nxomani's lawyer that a reasonable award for damages was R900,000.

“The period of detention was considerably long [and had] to have had a hugely deleterious affect upon his life and sense of wellbeing,” Hartle said. Hartle said the act of handcuffing Nxomani should not attract an award of anything more than R50,000.

She said the amount of R500,000 for malicious prosecution represented the impairment of his reputation and sense of self-worth.

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