‘She was treated appallingly’: woman awarded R1m for wrongful arrest from hell
Judge wishes he could award Durban sales manager even more for false arrest, xenophobic cops and 12 days in filthy cells
A Durban sales manager who was arrested at King Shaka International Airport and detained in “appalling conditions” for 12 days in a case of mistaken identity has been awarded R1m in damages.
Durban high court judge Graham Lopes said he would have directed the police minister to pay Cynthia Mobuhle Khedama even more, about R1.7m, had she asked for it.
“The restriction of her liberty for 12 days was bad enough. That it was attended by dreadful treatment does not accord with the values of the new SA,” Lopes said.
“The motto of the SAPS — protect and serve — rings hollow in the light of the facts of this matter.
“Urgent reform is obviously necessary and as long as the state continues using unconstitutional methods and appalling facilities, it cannot be heard to complain about the extent of the awards of damages against it.”
She was treated appallingly. It made a mockery of the Bill of Rights. Pre-trial imprisonment is in no way, shape or form, designed to be a form of punishment.Judge Graham Lopes
Khedama sued the minister in 2013.
The state initially defended the matter, saying the police had acted on a warrant of arrest issued by a magistrate in Philippi East in Cape Town in July 2007, when she had failed to attend court on a fraud charge.
Her identity had been circulated as a “wanted person” using her ID number.
However, in 2018, the state conceded liability — that the police had the wrong person — and the trial on quantum was heard by judge Lopes in November last year.
In her evidence, Khedama, who was 30 at the time of the incident, said she worked as a sales manager for a local fashion firm when she was given the opportunity by her boss to travel with him to Turkey on a buying trip in December 2011.
She was seated in the international departures lounge when she was approached by two police officers who took her to a room and questioned her.
They asked about the nationality of her boss, who was from Cameroon.
They indicated they would check her suitcase to see if she was carrying drugs because she was in his company. The police also used a derogatory term to describe her boss because he was a foreign national.
She urged them to phone a police officer in Cape Town who had knowledge of her losing her ID book and that it had been used by fraudsters.
But they told her she was going to be arrested. When her boyfriend arrived at the airport to collect her suitcase, they again turned to derogatory terms to describe the boyfriend, also a foreign national.
She was handcuffed, put in the back of a police van, taken to Tongaat police station and placed in a small cell.
The toilet was dirty and smelly, she was given a filthy grey blanket and was not offered any food overnight.
The next day she was given food “through a hole in the door”.
She appeared in court on the Monday where she was told she was being transferred to Cape Town.
She was a credible witness who clearly suffered from her terrible experience and the emotions she felt were heartfelt and genuine.Judge Graham Lopes
She said it was a journey from hell.
She was kept in various “filthy” police cells along the way, she had no opportunity to change her clothes or shower. She contemplated committing suicide.
In Cape Town, her fingerprints were taken, proving that she was not the “wanted person”. Charges were finally withdrawn in March 2012.
Khedama described how her life had been affected.
She had been demoted at work, but at one stage her boss had “given her a second chance” and agreed to take her on another buying trip.
On this second occasion, she was again confronted at the airport by the same two police officers. She was taken to the same room.
She said she was “very scared”, but one eventually told her that they were “joking” and released her.
She said she had lost all trust in herself and faith in the police. She had suffered mental and physical illness.
Clinical psychologist Dr Ebrhai Ajee Chohan testified that he had seen her nine years after her experience and interviewed her for five hours.
He concluded that she suffered from post traumatic stress disorder.
One of the initial arresting officers, Sgt Arnold Pather, testified on behalf of the minister.
He said he had verified the arrest warrant based on the ID number.
He said he had treated Khedama with respect at all times and denied using any derogatory terms to describe foreign nationals.
The state’s expert witness, Amina Bhayat, said Khedama was “magnifying and exaggerating her symptoms”. But, the judge said, she ultimately agreed that Khedama presented with residual symptoms of post traumatic stress disorder.
Lopes said Khedama had been “unshaken in her recollection of events”.
“She was a credible witness who clearly suffered from her terrible experience and the emotions she expressed were heartfelt and genuine.
“Sgt Pather, on the other hand, was confused and contradicted his own evidence.”
Judge Lopes said he unhesitatingly accepted her version.
“The fact that she would have been suspected of carrying drugs, questioned regarding the nationality of her boss and her boyfriend and that they were derogatorily referred to as kwerekweres, all have the ring of truth, in my view.
“It is inexplicable and unacceptable that the police did not take the time nor the effort to verify that she was the correct person.
“This could easily have been done by having the fingerprints in Cape Town copied, scanned and transmitted to Durban for comparison.”
He said there had been no explanation as to why it was necessary to detain her, because she was no threat to society.
There was also no explanation as to why the police did not accompany her on a flight to Cape Town “which would have been a far less expensive exercise than two officers driving from Cape Town to collect her and then driving back over three days”.
“She was treated appallingly. It made a mockery of the Bill of Rights. Pre-trial imprisonment is in no way, shape or form, designed to be a form of punishment,” Lopes said.
“In this modern age, and given the resources available to the state, it is inexplicable and unacceptable that she was held in filthy, unsanitary and unsuitable conditions.
“She was humiliated in front of her boss, compounded by being detained a second time when she was given a second chance to travel overseas. This was clearly malicious ... using their powers to play games.
“A world-class constitution is worth nothing if it is not implemented.”
He ordered the minister to pay damages in the amount of R1m, plus interest from December 2013, and Khedama’s legal costs.