26 November 2024
A man who spent nine years in jail before the charges against him were withdrawn is suing the Minister of Police. Graphic: Lisa Nelson
A man who spent nine years behind bars, only for the charges against him to be withdrawn without him ever standing trial, has been let down again by the justice system.
“Nkosi” — he has asked that his identity be withheld because of the stigma of his almost decade-long detention — has secured a judgment confirming that his arrest, detention and prosecution were unlawful. But the state is now doing everything possible to challenge this.
Johannesburg High Court Judge Moleboheng Mdalana-Mayisela refused an application by the Minister of Police and the National Director of Public Prosecutions for leave to appeal, but they have now petitioned the Supreme Court of Appeal for permission to appeal in that court. This is likely because they are facing a multi-million damages claim for what Judge Mdalana-Mayisela found was clearly a case of unlawful arrest and detention.
Nkosi said he was an “unofficial Uber driver” when he was arrested for possession of an unlicensed firearm. Seven days later, he was charged with being part of an alleged “gang” responsible for ATM bombings and car jackings.
But even the arresting officer, in his statement, said when he pulled Nkosi over, he found nothing illegal in his vehicle other than a few cellphones and a pair of binoculars.
Judge Mdalana-Mayisela said Nkosi should never have been pulled over in the first place and that the police officer had no “probable cause” to stop and search him.
That was in January 2012.
Almost nine years later, in November 2022, after being denied bail and making dozens of court appearances, Nkosi finally emerged from prison when the prosecutor dropped the charges, claiming there was insufficient evidence to proceed to trial.
During that time, he had become a victim of prison gang bullying and had contracted TB.
His girlfriend, who was pregnant at the time of his arrest, gave birth to a son who, on Nkosi’s release, refused to accept that he was his father and would only refer to him as “uncle”.
His attorney in the civil matter, Muponisi Rikhotso, told GroundUp that Nkosi was now doing “odd jobs” to survive. He had had to move from the area he previously lived to avoid the stigma of his imprisonment.
The amount of his damages claim still has to be adjudicated by a judge. But in the summons, he is claiming R50-million.
The main issue in the trial on liability - which is again being raised in the petition for leave to appeal - was that of prescription, that Nkosi had essentially filed his claim too late. But the judge found in favour of Nkosi, saying the applicable three-year time period had only started on his release in 2020.
In assessing the evidence, the judge said Nkosi’s unlawful arrest and his subsequent detention were intertwined and the Minister of Police was liable for this.
The National Director of Public Prosecutions led the evidence of a prosecutor who claimed that he had only provisionally withdrawn the charges because witnesses had not been subpoenaed to come to court.
Judge Mdalana-Mayisela, however, said this was at odds with what was written on the charge sheet which stated that the charges had been withdrawn for lack of evidence.
Noting the statements made by two police officers at the time of his arrest, the judge said neither had implicated Nkosi in the offences and there had been no legal basis to charge him.
The NPA, the judge said, should have declined to prosecute him from the very start.
She ruled that both respondents were liable to pay Nkosi 100% of his proven damages and his legal costs.
In response to his damages claim, the respondents say Nkosi’s trial was delayed for several reasons including that some of his co-accused had pleaded guilty and there was a separation of trials. The matter had to be postponed several times because his lawyer was not available because “he was ill or had booked himself in more than one court on the same date”.
The case also had to be postponed several times because of the Covid pandemic.
Furthermore, Nkosi had abandoned a bid to apply for bail on new facts.
In his claim for damages, Nkosi says the conditions at Johannesburg Correctional Centre were appalling. The toilet in the crowded cell was not working, blankets and sponges were dirty, “itchy and stinking” and the food was terrible. He contracted TB from his fellow inmates and suffered from sexual abuse.
The petition to the SCA is pending.
The respondents also argue in their petition to the SCA that Judge Mdalana-Mayisela was wrong in her assessment of what is “reasonable suspicion” in order to make an arrest and that one of the suspects had pointed out Nkosi’s red car as being involved in the crime.
Nkosi, it was alleged, had ramped the pavement in order to evade arrest.
They say the court was also wrong to conclude that the prosecution had been withdrawn for lack of evidence; it had been provisionally withdrawn.
Should the appeal fail, the amount of damages will be decided either through negotiation or at a further trial, at which Nkosi will have to testify.