An acrimonious split escalated into a multimillion-rand civil lawsuit for wrongful arrest and defamation after a divorcee accused her ex-husband of housebreaking, assault and rape — only for the charges to be withdrawn. He had an alibi.
The couple — who met in the hospitality industry — were officially divorced in July 2012, but years of litigation produced a judgment this week by the high court in Cape Town scathing of the ex-wife's conduct and ordering her to pay him R665,000.
The man was woken at home by police on September 18 2012 and informed he was accused of breaking into the home of his former partner and raping her, twice. On that day, he and his girlfriend were scheduled to meet then Western Cape judge president John Hlophe to discuss his dissatisfaction with the divorce ruling which awarded two properties to his ex and about R2m to him.
Despite having a strong alibi, confirming he was at a hotel and casino at the time of the alleged rapes, he was detained for 17 days. He had provided a receipt from the hotel, and the investigating officer later confirmed he was there with a “well-known customer due to his gambling habit”, reads the judgment. Video footage would later confirm he and his girlfriend, whom he later married, were at the hotel.
The man was released on bail, under strict conditions. Almost a year later, all the charges were withdrawn.
He initially sued his ex-wife and the minister of police for more than R14m for malicious prosecution, wrongful arrest and reputational damage.
He told the court about incurring R165,000 in legal costs related to navigating the rape case, claimed R2m for deprivation of freedom, humiliation and discomfort, and R1m in reputational damage. Unable to return to his job after the arrest, he claimed more than R11m in lost earnings, R250,000 in past and future medical costs as he had “undergone psychological treatment and used medication and will have to do so in future”. He later abandoned the medical claim, and the minister of police reached an undisclosed settlement regarding his claim of wrongful arrest. Claims against the prosecution fell away.
The couple married in early 2000 in Stellenbosch.
“Their marriage produced one child ... The parties were divorced from each other in 2012 after a protracted trial and the first defendant [ex-wife] was granted primary care of the child,” read the ruling by judge Patrick Gamble.
“Subsequent to their divorce [the ex-husband] experienced difficulty in exercising his rights of contact to the child and matters became acrimonious.”
In August 2014, he launched a lawsuit against his ex-wife, the police minister, and the prosecution. The high court dismissed the case, but he appealed to the Supreme Court of Appeal, which upheld his claims, except for the one against the prosecution. The matter returned to the high court to determine the quantum against the ex-wife and police minister.
According to the judgment, the ex-husband worked in the hospitality industry where he met his wife-to-be.
“Their relationship started in 2001 and in 2004 they decided to get married and settle in South Africa. They bought two adjoining [properties] ... and went to live on [one of them,” the judgment reads.
Three years later, the mother and child moved to another property.
“When the [the ex-husband] went there [in 2009] and insisted on seeing the child, there was strife, and the police were called. He was arrested and he spent the night in jail,” the judgment reads.
“Divorce litigation proceeded in the high court and there were four cases between the parties ... in one of these cases the [ex-wife] testified under oath that the [ex-husband] had never physically assaulted her during the time they were together.”
Gamble said: “In my view there is very little to say by way of mitigation of the harm occasioned to the plaintiff [ex-husband] by the defendant [ex-wife]. In a society which is racked by extraordinarily high levels of gender-based violence, the defendant chose to accuse the plaintiff of the most unspeakable of crimes — rape in the domestic setting. A crime for which sentences ranging between 10 years and life imprisonment are prescribed.
“These are allegations, which once made, are difficult to erase from the public perception when the perpetrator is acquitted or when the state declines to press ahead with a prosecution. The award of damages in such a situation will invariably be high, especially where the defamation is aggravated by persistence, malice and intense hatred, as is the case here.”
The ownership of property was a stalemate in the divorce proceedings.
“The main issue was ownership of the [properties] and the father’s contact with the child,” the judgment reads. The properties were subsequently sold for R12.5m.
Gamble ruled the ex-husband was entitled to R500,000 in non-patrimonial damages for defamation and malicious prosecution, as well as R165,000 in legal costs incurred during his bail application and court appearances.
The ex-wife was also ordered to pay her ex-husband’s legal costs for the high court application.
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