Zethu Florence Mkhabela, who was arrested, detained and charged with possession of stolen property along with a friend she had approached for a drink of water at the time he was apprehended for the crime, has been awarded compensation amounting to R1.15m.
Both the police minister and the national director of public prosecutions (NDPP) have been ordered to pay Mkhabela damages and all her legal costs after she was detained for 33 days because she was unable to pay R1,000 bail, only to have the case later withdrawn.
The matter was heard by the Mbombela high court in Mpumalanga, which found Mkhabela to have been a victim of unlawful arrest and detention as well as malicious prosecution.
The court heard that Mkhabela was arrested on July 23 2020, and detained at Kanyamazane police station. Four days later she was taken to court and bail was set at R1,000. She could not pay this and was remanded in custody. She was eventually released on August 24 after her parents posted bail.
Mkhabela told acting judge Kgama Shai that on the day of her arrest, she had gone to the house of Dumisani Mdluli to ask for some water. When she arrived, there was another man she didn’t know on the premises.
While she was there more people arrived to speak to Mdluli and so she went into the house with them, and at the same time the unknown man left.
An argument broke out between Mdluli and the visitors and that is when she realised that items in the house were linked to the commission of a crime. She was taken along with Mdluli to various places where other items were pointed out.
After this, she and Mdluli were taken to the police station where they were locked up. She was told she was under arrest for housebreaking.
A police officer testified that Mkhabela had been brought to the police station by a community group, and he had detained her for further investigations. He said she was arrested for burglary/housebreaking because items found on the premises where she had been apprehended were stolen.
The officer admitted that there was no evidence that she had been involved in a burglary and she herself was not found to be in possession of any stolen items. He said there was no evidence in the docket linking her to the crime of housebreaking or possession of suspected stolen property.
The prosecutor in the matter against Mkhabela testified that on perusal of the docket, she could not enrol the case as there was no evidence against her. However, she went ahead and enrolled the matter as a charge of suspected stolen property because there were witness statements that suspected stolen property had been found on the premises where she was apprehended.
Her wanton disregard for facts not warranting prosecution should be regarded as indirect malice
— Acting judge Kgama Shai
The prosecutor admitted that she was later forced to withdraw these charges because there was insufficient evidence to charge her with anything.
Commenting on the matter, Shai said the fact that the woman was arrested and detained purely because she had been brought to the police station by the community, and then held for an investigation, did not meet the requirements of a lawful arrest.
“Consequently, I find the arrest to have been unlawful,” Shai said, noting that “detention is, in and by itself unlawful” as the constitution guaranteed every person the right to freedom and security, of which they may not be deprived without just cause. Failure of an arresting officer to apply his mind to an arrestee’s detention was unlawful even in the case of a lawful arrest, he said.
“No lawful detention can follow from an unlawful arrest of the nature herein where, by the evidence of the police officer and the prosecutor, the plaintiff could not be linked in any way to the commission of the offence.”
In reviewing Mkhabela’s detention after her court appearance, Shai said, “Constable Ndala subjectively foresaw the precise consequence of her unlawful arrest of the applicant. She knew that the applicant’s further detention after the court appearance would ensue. She reconciled herself to that consequence.”
Commenting on the prosecutor’s decision to proceed with the possession of stolen property charge against Mkhabela, Shai said it “boggled one’s mind” in trying to understand the basis.
Had she exercised due diligence in assessing and screening the docket, charges would not have been pursued. Instead her actions had led to further detention.
For Mkhabela to prove malicious prosecution, Shai noted that she needed to show that the actions against her were unreasonable and without probably cause, that these actions were malicious, and that the prosecution had failed.
Commenting on the prosecutor’s decision to pursue a charge against Mkhabela, and then change her mind at a much later stage, Shai said this meant she could not have had reasonable and probable cause from the start.
“Her wanton disregard for facts not warranting prosecution should be regarded as indirect malice,” Shai said.
In assessing what would be fair compensation, Shai looked at the awards given in other cases of unlawful arrest.
“In De Klerk v minister of police the plaintiff was granted R30,000 for having spent almost an hour in detention,” he cited.
He noted the Mkhabela had testified that she had been humiliated while in custody, how other inmates took her food, she was denied proper toiletries and had to use T-shirts during menstruation.
“Her good name is tainted in the community; her trade as a traditional leader had been affected as she is now labelled a criminal,” Shai said.
Using previous awards in similar cases as a guide, and remaining cognisant that each case needed to be treated according to its merits, he decided that an award of R250,000 was fair for her unlawful arrest; R150,000 for her pre-court detention; R650,000 for her post-court detention and R100,000 for malicious prosecution.
The minister of police and the NDPP were also ordered to pay all Mkhabela’s legal costs.
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