Gauteng man wins R500 000 in damages from police after being ‘unlawfully’ detained

Police Minister Bheki Cele

Police Minister Bheki Cele
  • A Gauteng man has won R500 000 in damages against the minister of police. 
  • The man was arrested in early 2017 and was detained for 26 days, before being released on bail.  
  • The Gauteng High Court found that the man was unlawfully arrested. 

Police Minister Bheki Cele will have to cough up R500 000 in damages after police unlawfully arrested and detained a Gauteng man five years ago.

Elpacino Victor Maphosa was arrested in January 2017 on allegations of armed robbery and was detained for 26 days before he was released on R2 000 bail.

The matter was withdrawn in August 2017.

On Tuesday, the Gauteng High Court ruled in favour of Maphosa, saying his arrest was unlawful.

The court also found that the arrest warrant was “improperly sought and issued, [and] it was also defective”.

According to the judgment, Maphosa also told the court that he had to endure unbearable, unhygienic conditions in the cells.

In her ruling, Judge Maletsatsi Betty Mahalelo said: “I find that the arrest of the plaintiff (Maphosa) was unlawful, not only because the warrant was improperly sought and obtained, but also because the defendant (minister of police) failed to discharge the onus to show that the arresting officers exercised their discretion at all when arresting the plaintiff.

“The defendant shall pay the plaintiff an amount of R500 000 (Five hundred thousand rands only) for damages suffered as a result of unlawful arrest and detention,” she said.

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At the time of his arrest, Mphosa said he was on parole for a 2010 case for possession of stolen property. He pleaded guilty and was sentenced to six years in prison, which was suspended with conditions.

Again, in 2012 he pleaded guilty in a separate matter, and the suspended sentence for the 2010 case was put into operation, according to the judgment.

Maphosa served three years in prison –  from 2012 until late 2015.

Maphosa said that when he was told that the current matter involved the robbery of a truck in 2010, he believed that he had been rearrested for the same case for which he had already pleaded guilty.

‘No shower in cell, toilet always dirty’

According to Maphosa, the officer who applied for the warrant of arrest, based on the investigating officer’s affidavit, had no reasonable grounds to suspect that he had committed the alleged offence.

He accused the officers of not applying their minds. In addition, he said the police failed to take him to court within 48 hours of his arrest.

Maphosa was first kept at the Randfontein police station cells where the situation was “very bad”.  He complained of the cell being overcrowded, with about 20 to 25 arrested suspects. He also said the cell was “always dirty and smelt bad because of the number of inmates”.

“There was no shower in the cell, and he had not taken a bath for the four days.”

“There were blankets and sponges in the cell which they shared, but there were bugs on the sponges and the blankets, and they were dirty. There was only one toilet in the cell and a wash basin, but they were not provided with soap. The toilet was always dirty, and whenever he wanted to use it, he had to clean it himself.”

Maphosa was then moved to the Germiston police cells. He said the conditions were a “little better”, but added that he was “bitten by bugs”.

Wrongful and unlawful

After he appeared in the Germiston Magistrate’s Court, he was held at the Boksburg Prison. He said the conditions at the prison were better than in the police cells.

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The police minister denied that the arrest was wrongful and unlawful.

The minister said a magistrate had authorised the warrant of arrest in terms of Section 43 of the Criminal Procedure Act 51 of 1977.

The minister said, because the court had ordered Maphosa’s detention, it was therefore lawful.

In her ruling, Mahalelo said the officer who deposed the statement which was used to apply for the warrant did not apply his mind to the contents of the docket.

“It would appear that he did not even read the statement of the fingerprint’s expert… [the officer] failed to notice that according to the statement, a palm print was obtained from the stolen vehicle on the date of the armed robbery, but the entry in the investigation diary on 10 July 2010 showed that the truck was not yet recovered then.”

The truck was recovered on 4 February 2011 and was released to the owner four days later.

Mahalelo found that Maphosa’s arrest and detention were unlawful.

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