The Mahikeng high court has found in favour of a North West father who was wrongfully arrested and held in custody for three days and ordered the SA Police Service to pay the man R120,000 in compensation.
Hendrick Lekalakala brought the action after he was arrested, the reason for which was not communicated to him, only for him to be released a few days later when the matter was thrown out of court before he could appear.
The North West commissioner of police was ordered to pay Lekalakala the compensation after being found to have arrested and detained him unlawfully between August 23 and 26, 2019.
Lekalakala told the court that he was arrested at his home in Kraalhoek, Moruleng, by police officers whose name and ranks were not disclosed to him. The incident took place at about 5pm on a Friday evening in front of his wife, son and neighbours, and at no stage was he informed of the reason for the arrest.
He described being dragged by his belt in what was a humiliating situation.
Lekalakala was taken to Mogwase Police Station where he was booked into cell 7 and held along with six other inmates. All six men were able to tell him what they had been detained for, and all admitted to him that they were “dangerous people”.
Lekalakala told the court he was unable to sleep that night and remained in custody from early Friday night until about midday on the Monday.
While he was detained he washed with cold water and a face cloth that had been left in the cell. He slept on a small, thin sponge mattress that smelt foul.
He said that though he had been given food, he was unable to eat because of his immense distress. He was upset because he could not see his wife and no family or friends visited him during the time he was detained.
Lekalakala told the court that he was on medication for heartburn, but that he was not given access to his medication — tablets he takes once a day. He said he had informed the arresting officers that he was on medication, but they refused to allow him to take his medication with him when they took him away.
He was taken to court on the Monday morning, from where he was released at about noon without appearing in the dock.
Lekalakala told the court his reputation had been ruined. When he attends weddings and funerals he feels like he is not valued. No member of the SAPS had ever explained or apologised to him for his unlawful arrest.
To sleep with a smelly blanket on a thin sponge and to wash with cold water because you have no other choice is in my view inhumane.
— Thabiso Masike, North West High Court acting judge
It was only after his release that he found out that he had been arrested on suspicion of attempted murder and for possession of a firearm. He vehemently denied involvement in any attempted murder and denied having possessed a firearm.
He told the court that while he was in custody he slept during the day. He could not sleep at night because he was afraid of the other inmates in the cell.
North West High Court acting judge Thabiso Masike said while the intention of compensating a person for wrongful arrest was not to enrich the person, there was no getting away from the fact that they had been harmed, traumatised and inconvenienced.
He found that the court was required to “do the best it can with the material available”, even if this amounted to an informed guess that was fair to both sides.
“It must give just compensation to the plaintiff, but must not pour our largesse from the horn of plenty at the defendant's expense,” Masike noted.
He said the duration of the detention was a factor, as were the circumstances under which the arrest and detention occurred; the presence or absence of improper motive or malice on the part of the police; the conduct of the defendant; the nature of the deprivation; the status and standing of the plaintiff and whether there was an apology or satisfactory explanation of the events given to him.
“Unlawful arrest and detention constitutes a serious inroad into the freedom and the rights of an individual,” Masike said in finding that Lekalakala had come across as a reliable witness, had not exaggerated any facts and had been manhandled in front of his wife, son and his neighbours.
He was detained in unhygienic conditions, and went through an ordeal accepted to have been “terrifying at best and horrifying at worst”.
“I have considered the age of the plaintiff at the time of his arrest, his personal and social circumstances, the circumstances of his arrest, the duration of the detention of the plaintiff, the fact that no explanation was tendered to the plaintiff for the reason for his arrest and no apology has been tendered by SAPS for the unlawful arrest and detention,” Masike said, in finding in favour of Lekalakala, noting that his lawyer was asking for R220,000, while SAPS suggested R80,000 — being for 66 hours of incarceration during which time he was not tortured or held in inhumane conditions.
“To sleep with a smelly blanket on a thin sponge and to wash with cold water because you have no other choice is in my view inhumane,” Masike stated, in awarding R120,000 in damages and ordering SAPS to pay his legal costs.
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