24 August 2023
Mdunyiswa Mtolo spent 32 months in prison after being “maliciously arrested” by police. Archive photo: Ashraf Hendricks
A man who spent nearly two years and eight months in prison after being “maliciously arrested” by the police has been awarded almost R3.4 million in damages.
Pietermaritzburg High Court Judge Rob Mossop has also ordered the Minister of Police to pay interest on the amount dating back to 2015, when the summons was first issued, and to pay costs on a punitive scale.
In considering Mdunyiswa Mtolo’s case, Judge Mossop said the facts were troubling.
“Firstly the length of deprivation of liberty. Two years and eight months is a substantial period to lose from a human life.
“The malice that was found to exist is intensely upsetting. When those that are required to protect society in fact prey on it, then society is in trouble,” he said.
Judge Mossop was only dealing with the issue of quantum. The issue of liability had been decided by another judge in 2021, who had ruled that the police had acted with malice when they arrested Mtolo in September 2011 on charges of housebreaking, involving the theft of saddles and of a motor vehicle.
Bail was refused on the basis of evidence given by the investigating officer that Mtolo had been found and arrested while seated in a stolen vehicle.
He had in fact been arrested at his place of work in front of his colleagues.
Mtolo, who was an assistant boilermaker and fitter, initially spent four nights at two police stations in the Pietermaritzburg area. Neither of these periods were recorded in the official records. Nearly two years and eight months was then spent at New Prison, Pietermaritzburg.
Mtolo said he was manhandled when arrested at his place of work and that his fellow employees now regarded him as a criminal.
The conditions under which he was initially detained at the two police stations were “disgusting”, said Judge Mossop.
Blankets in one cell appeared to have been vomited on and there were blood spatters all over the cell.
Mtolo said he saw police officers assaulting other detainees.
On his arrival at New Prison, he suffered the humiliation of being required to strip naked and jump around in front of prison officials and inmates to establish whether he was in possession of any prohibited contraband.
“He had to go through this ritual every time he returned from court. He suffered this indignity at least 37 times,” Judge Mossop said.
At New Prison, the cells were overcrowded, food quality was poor. While there were steel beds, there were no mattresses and inmates had to use an exposed toilet.
To ensure his physical safety, he had to pay a monthly fee of R500 plus 200 cigarettes and a bag of tobacco to a prison gang.
When he was eventually freed, he was weak and it took him three months to get back in shape. He still felt rejected by society and did not make eye contact with many of his co-workers, who believed that he had been sentenced for a crime and served time.
Judge Mossop said he was impressed by Mtolo as a witness.
“The powerlessness of his situation must have been overwhelming.
“There can be no doubt that this prolonged and disturbing experience to which the plaintiff was subject was both shocking and totally unnecessary.
“This country has an unfortunate history of people being treated in this fashion,” Judge Mossop said.
He noted that counsel for the minister had submitted that the police officials had done what they did “because they had the power to do so”.
“That is perhaps as close as we can come to understanding why these disturbing events occurred,” the judge said.
He ordered the minister to pay Mtolo R3-million for malicious arrest and detention, R300,000 for impairment of dignity, and R67,200 for loss of earnings.
The judge ordered that interest shall run from the date of service of summons in 2015, until date of final payment of the total amount of R3,367,200.
He also ordered that the minister pay legal costs on a punitive scale.