Summary

This matter concerned the unlawful arrest of one Mr Mahlangu and his co-accused Mr Mtsweni (hereinafter referred to as the First & Second appellant respectively). Both appellants were arrested without a warrant on 4 counts of murder on the 29^th May 2005 and were further detained on account of numerous court orders until the 10^th February 2006 when the Director of Public Prosecutions (DPP) decided to withdraw the charges against them. During the incarceration, the first appellant was also unlawfully assaulted by police officials and compelled to make a confession under duress. The first and second appellant then instituted an action against the Minster of Police (Respondent) for damages arising from the unlawful arrest, infringement to their dignity, bodily integrity and their right to freedom.

The trial court had concluded that the information which was relied upon by the police to justify the arrest of the appellants was not of such a nature that they could reasonably be suspected as having committed the offence. The trial court further concluded that the confession made by the first appellant was irregularly obtained as he was not warned of his rights and because he had been tortured. The Trial court therefore held the arrest and police detention of the appellants was unlawful. The first and second appellant were awarded R90 000 & R50 000.00 respectively.

The appellants appealed the decision of the trial court in respect of the quantum of damages awarded for the unlawful arrests and the period of police detention. In hearing the appeal, the Supreme Court of Appeal found that, it was common cause that the police officers had indeed tortured the first appellant, and as a result he (the first appellant) made a confession in which he implicated himself and the second appellant. Such confession was inadmissible.

The SCA further held that the such confession was included in the docket with the intention that it be relied upon and ultimately became the factual cause of the appellants further detention from their first appearance until they again appeared on the 14^th June 2005. Court further held however that even though it could be assumed that the inadmissible confession in the docket was the factual cause of the appellant detention, it was not the legal cause of the detention beyond the 14^th June 2005, as the appellants could on probability have applied for bail and would have been released.

The court therefore held that an appropriate award for damages for the period commencing from their first court appearance until the 14^th June 2005 would be R100 000.00 per appellant and this amount would be in addition to the amounts awarded by the trial court in respect of the damages suffered preceding their judicial detention.

Case citation: Mahlangu and Another v Minister of Police (1393/2018) [2020] ZASCA 44 (21 April 2020)

Please read the full case on: http://www.saflii.org/za/cases/ZASCA/2020/44.html