Innocent men must be compensated for whole of their detention, ConCourt rules

14 May 2021 - 15:12
The Constitutional Court ordered the minister of police was liable to pay damages for two men's entire period of detention following their unlawful arrest. File photo.
The Constitutional Court ordered the minister of police was liable to pay damages for two men's entire period of detention following their unlawful arrest. File photo.
Image: GCIS

The Constitutional Court on Friday awarded two men, who were unlawfully arrested for murder, compensation for the whole period they were in custody.

It set aside an order of the Supreme Court of Appeal which ruled the men, held in custody from May 2005 until February 2006 — when a murder charge against them was withdrawn — could only be awarded damages for two weeks of their detention.

The SCA ruled they could not sue the minister of police for damages after they appeared in court.

Johannes Eugen Mahlangu and Phannie Johannes Mtsweni were arrested on May 29 2005 for allegedly murdering Vusi Motebu, his partner Thuli Mathebula and two of their three children in Mhluzi, Middelburg, Mpumalanga.

They did not commit the crimes.

Their arrest followed a forced confession by Mahlangu, obtained by a policeman who then implicated Mtsweni.

During their detention, police arrested the real perpetrators who were later convicted and sentenced to life imprisonment.

The high court in Pretoria had found that the arrest and detention of the men was unlawful and ordered the minister to pay R90,000 to Mahlangu and R50,000 to the executor of the estate of the late Mtsweni.

Mtsweni died after the institution of legal proceedings.

However, the high court held that their unlawful detention came to an end once they were detained in terms of a court order on May 31 2005 after their first appearance in court.

On appeal, the majority of the SCA agreed with the findings of the high court but ordered that the minister of police pay Mahlangu R190,000 and R150,000 to the estate of Mtsweni.

The awards were for their initial period of detention before appearing in court.

Mahlangu and the executor then approached the Constitutional Court for relief.

In a unanimous judgment penned by Justice Zukisa Tshiqi, the court said detective inspector Emson Mthombeni and his colleagues arrested Mahlangu and Mtsweni unlawfully and engineered a false confession through assault and torture. 

“They failed to disclose this to the court and it was this conduct on their part that led to the further detention.”

She said Mthombeni knew that there was no evidence on which the two men could be successfully and lawfully prosecuted. 

“He was aware that Mr Mahlangu’s confession was obtained under duress and that it was false.”

Tshiqi said the SCA erred in refusing to award damages for the full period of detention.

“The minister is therefore liable to compensate the applicants for the period of their detention from the date of their arrest, being May 30 2005, to the date of their release on February 10 2006.”

Tshiqi said the circumstances under which Mahlangu and Mtsweni were detained for eight months and 10 days were unpleasant.

She said they were also placed in solitary confinement for two months to protect them from attack and taunting by fellow detainees who believed that they had killed their relatives.

Tshiqi ordered that Mahlangu be awarded R550,000 in compensation and the estate of Mtsweni be awarded R500,000.

She also ordered the minister to pay the costs of the application, including the costs of three counsel.

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