The minister of police has lost an appeal against an Mthatha high court ruling ordering that two ANC councillors be paid more than R500,000 compensation each for their unlawful detention and torture in custody.
The matter was dismissed with costs by the Supreme Court of Appeal, which found in favour of respondents Thandekile Nelson Sabisa and Lawrence Nzimeni Mambila, who initially instituted the damages claims.
They asked the court to order the minister of police to compensate them for their unlawful arrest, unlawful detention and assault in April 2016.
The high court found in their favour and awarded each R400,000 for unlawful arrest and detention and R110,000 for assault, torture and contumelia (degrading and insulting behaviour).
The arrests related to an earlier attempted hit on then ANC chairperson Xolile Nkompela, during which his bodyguard, 39-year-old Zukile Nyontso, died in a hail of bullets on December 17 2015.
The arrests for the suspected hit took place on April 18 2016 when respondents Sabisa and Mabila were councillors of the OR Tambo District Municipality.
They were arrested at the offices of the municipality at Myezo Park in Mthatha. At the time Sabisa was the deputy executive mayor while Mambila was a member of the mayoral committee responsible for technical services.
The pair told the Mthatha high court that they were arrested without warrants by the members of the SAPS, and that there was no justification for executing the warrants, even if those were available.
They claimed they were detained without reasonable and probable cause by the police officers for nine days. During this time, they were assaulted and tortured which caused them pain, shock and injuria, among other things. They claimed to have suffered damages of R10m each.
The minister filed a plea in which he admitted the arrests but denied that they were unlawful. He said Sabisa and Mabila were arrested in terms of valid warrants of arrest which were shown to them.
The minister admitted that the respondents were detained by the police on April 18 2016 and on April 19 2016 they were admitted to hospital where they remained under guard until April 26. The minister further said they were kept in hospital on the authority of the court.
The minister denied that the men were assaulted and tortured by the police.
Sabisa and Mabila said that they had been attending a mayoral committee meeting at the municipality offices when a team of more than 10 armed police officers arrived in about a dozen vehicles at 3pm.
The officials were apparently members of the Hawks and other several unidentified police officers.
Three of the police officers went into the boardroom where the meeting was held and called Sabisa and Mabila to leave the meeting.
The men were advised they were wanted in connection with the attempted murder of Nkompela and the murder of his bodyguard.
Nkompela was the speaker of the Mhlontlo Local Municipality at the time. The matter became referred to in court as the Tsolo case after the area where it happened.
Sabisa and Mabila were ordered into different vehicles that headed towards the N2 East London direction along with all the other vehicles in a convoy. After almost two hours they stopped at offices in Butterworth, 120km away.
Here they were interrogated about the Tsolo case, assaulted and tortured. At about 10pm the convoy departed to Mthatha central police station, arriving close to midnight. Both men were booked in and placed in the cells.
At 3am the next morning Mambila was visited in his cell by an attorney, who he told that he had been injured and asked him to arrange for him to be seen by a doctor.
Sabisa also reported the assault to his attorney and instructed him to take steps to have those responsible face the law.
That afternoon, the police arranged for the men to be taken to a doctor on the requests made by their attorneys. They were booked out of the cells and taken to a doctor. Mambila needed to use a walking stick to reach the vehicle.
The doctor recommended that both be admitted to hospital. Mambila was given an injection and taken in an ambulance. They were admitted to the same ward, shackled to their beds and guarded by the police.
They had to ask for permission from the police to use the bathroom. A week later on April 26 2016 the police guards left with no explanation given. The men’s shackles were removed and they were informed that they were no longer being detained in custody.
Mambila was discharged from hospital on April 28 2016 while Sabisa was transferred to the Mthatha General Hospital, as his medical aid cover was almost exhausted.
The Mthatha high court found that the arrest and detention of both Sabisa and Mambila was unlawful because they had not been brought before a court within 48 hours as required by the Criminal Procedures Act.
Furthermore, they were detained in hospital in custody without a court order authorising their continued detention beyond the mandatory 48-hour period.
The court further found the warrants to be defective “to the extent that they did not authorise the arrester to take the plaintiffs to Butterworth”.
The court also accepted Sabisa and Mambila’s evidence and account of their assaults.
In his appeal, the minister submitted that the police were armed with warrants of arrest, that the men had not challenged their validity and that the police were compelled to carry out the arrests.
The SCA was not concerned with whether the arresting officer had the authority to proceed but rather whether the execution of the warrant was legally compliant.
The SCA stated that in terms of the law the men had to be told that they were being arrested on the authority of a warrant so that they could then ask for a copy. The court held that if the men were not shown a warrant, it was reasonable for them to assume, as they had, that they were being arrested without a warrant.
The SCA further held that the arresting officer must show the warrant to the intended arrestee at the time of the arrest or immediately thereafter.
The SCA found the evidence of the minister’s witnesses to be inconsistent and that they contradicted each other as to who the arresting officer was. They also differed on whether Sabisa and Mambila were informed that they were arrested on the authority of a warrant.
The SCA found the detention in Butterworth after the arrest to be unlawful and not in compliance with the law which requires that any person arrested “shall as soon as possible be brought to a police station or, in the case of an arrest by a warrant, to any other place expressly mentioned in the warrant”.
It was accepted that Sabisa and Mambila were arrested at 3pm and arrived in Butterworth at about 5.30pm. They were interrogated in Butterworth until 10pm when the convoy returned to Mthatha.
They were only booked in the police station just before midnight and there had been no lawful purpose for them to have been taken to Butterworth.
The SCA further found that the police did not comply the legal requirement that an arrested person be brought before a lower court within 48 hours of their arrest.
Sabisa and Mambila were shackled by the police in hospital for nine days after being booked out of the police cell in Mthatha while the period of 48 hours expired at 4pm on April 20 2016.
Neither was brought before a lower court to appear, nor was authorisation sought on April 20 for their detention in hospital. The SCA held that perpetual detention was not lawful, even when the arrest was unlawful.
The SCA found that the probabilities of assault having taken place favoured Sabisa and Mambila, who had been kept in an office in Butterworth for about five hours with no clear justification for such length of detention being given by the minister’s witnesses.
No plausible explanation was provided as to why the respondents were only booked into the police cells at midnight when the arrests happened at 3pm.
The court found that the versions given by Sabisa and Mambila were clear and cogent, and supported by the entries in the occurrence book and the common cause facts.
For these reasons, the SCA dismissed the appeal. The minister is now required to pay each R400,000 for unlawful arrest and detention and R110,000 for assault and torture.
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