A man will be compensated over half a million rand due to procedural incongruities in the events leading to his unlawful arrest, detention, and subsequent prosecution.

The High Court of South Africa at the North West Division in Mahikeng ordered in his favour for delictual claims against the minister of police and the National Prosecuting Authority (NPA).

The court ordered that the plaintiff be paid R480 000 by the police minister for his unlawful arrest and detention, while the NPA was ordered to pay him R200 000 for malicious prosecution.

Asked if the Police Ministry would appeal the court’s decision, ministry spokesperson Kamogelo Mogotsi said they are still to be briefed by Legal Services on the matter and all subsequent actions.

Enquiries to the NPA had not been answered by deadline.

According to the facts of the matter, the plaintiff was arrested on December 7, 2020, and subsequently released from detention on December 20, 2020, for contravention of a final protection order against him.

However, according to court documents, the man was unaware of the final protection order, taken out against him by his father’s girlfriend, when he contravened the conditions by entering their property.

The protection order was taken out against the plaintiff in terms of the Protection from Harassment Act.

The interim protection order was taken out against the plaintiff while he was hospitalised for a month, and during this time, the arresting officer averred that he attempted to serve the plaintiff with the protection order at his residence but could not do so as he was not home.

“(The arresting officer, Sergeant David Kgokong) explained that on 23 September 2020, he phoned the plaintiff and advised of the protection order and the return date of 2 December 2020. This version was disputed by the plaintiff. Whilst the plaintiff admits that Kgokong telephonically informed him about the protection order, the plaintiff maintains that he requested that Kgokong visit him in hospital and bring him the relevant documents,” court documents read.

Kgokong maintained that he served the interim protection order telephonically.

After his discharge from the hospital, the plaintiff said he went to the home of his father and the father’s girlfriend, unknowingly being in breach of a final protection order. The plaintiff said when he was informed that they would be contacting their lawyers, he stepped outside the yard.

The man said he was confronted by a group of police officers who showed him certain documents and asked if he was aware of it, and he responded in the negative. He was not arrested but taken to a magistrate’s court with the police, where Kgokong confronted him.

The plaintiff said Kgokong grabbed him by his belt and asked why he was not leaving his father and his girlfriend alone. The plaintiff was then arrested, taken to the Tlhabane police station, and detained.

Acting high court judge Danielle Smit said: “During (Kgokong’s) cross-examination, he remained reliant on his ‘telephonic service’ but agreed that the interim protection order made no provision for such service. He conceded that when he arrested the plaintiff, he had no proof that the final protection order had been served. Kgokong agreed that the final protection order was, in fact, not served on the plaintiff. It was further conceded that (a senior officer) never provided a warrant of arrest to the arresting officer.

“I pause on this admission to highlight that the arresting officer testified he has 18 years of experience in the police service. With this experience, it is concerning that the trite position of a separate warrant of arrest being issued and presented to the concerned police officer was overlooked.

“The absence of this warrant should have brought Kgokong to pause. A further indication that the arrest was made hastily without the necessary investigation is the timing of the father’s girlfriend’s statement, being the affidavit as required in terms of Section 11(4)(a) of the Harassment Act. This aligns with the absence of a warrant of arrest.”

chevon.booysen@inl.co.za

malicious

Court orders R680K payout for unlawful arrest and malicious prosecution