An assistant boilermaker who was accused of housebreaking and vehicle theft, has been granted R3.3 million in a damages claim against Police Minister Bheki Cele after he was maliciously detained and prosecuted without an iota of evidence and denied bail for three years.
The matter against Mdunyazi Mtolo was eventually withdrawn without ever going to trial after almost three years behind bars, traversing at least three police stations and the New Prison Correctional Centre in Pietermaritzburg.
The KwaZulu-Natal High Court in Pietermaritzburg said Mtolo had been detained and prosecuted with malice after he was arrested in September 2011.
He was detained and denied bail until housebreaking charges were withdrawn in June 2013, and a year later in June 2014, while still behind bars, the vehicle theft charges were also withdrawn.
Former police minister Nathi Mthethwa was at the helm of the SA Police Service (SAPS) at the time during former president Jacob Zuma’s first term, while Cele served as the National Police Commissioner until he was suspended in October 2011.
Judge J Mossop, who took over the case from acting Judge AJ Naidu, heard how police officers and state witnesses lied during bail applications by Mtolo. He eventually found that there was not “an iota of evidence” against Mtolo regarding both crimes of housebreaking and car theft.
Police also said he had been arrested in the stolen car, when in actual fact, he was violently arrested at work, in front of his colleagues, whom he said now believe he was a criminal.
HARSH
Mtolo told the court that during his almost three years in detention, he was kept at the Camperdown and Plessislaer police stations for two days each without either being recorded in the record books. He complained of disgusting conditions in the police cells.
He was then driven to Bizana in the Eastern Cape where he was stuffed in the luggage area of an SAPS Toyota Fortuner for the long drive.
He was then transferred to New Prison where he said conditions were better, though he recalled how he was stripped naked in front of inmates during a contraband concealment check upon his arrival.
Mtolo said his almost four metre squared cell was shared with 10 inmates, and that they were fed tasteless food such as porridge with no sugar, boiled and watery samp, or stiff phutu with cabbage or a little portion of curry.
Mtolo said to escape rape or assault in the prison, he paid R500 and 200 cigarettes to prison gangs each month.
He told the court he had heard other inmates being stabbed, raped and beaten with a sock stuffed with keys.
He told the court he was never assaulted or raped, though he had been forcefully touched on his buttocks.
“I was impressed by Mtolo as a witness … He vividly, but not sensationally, conveyed his experiences to the court.
“He could have embellished upon those experiences, for example, by narrating that he had in fact been assaulted. Had he done so, there would have been no way of disproving that. But he did not,” said Mossop.
Naidu, who had presided on the case, noted that the detention and prosecution of Mtolo strongly pointed to the possibility of former top cop Cele, a state witness and police officers acting in concert to fabricate evidence against Mtolo.
“There is not a single iota of independent and objective evidence against Mtolo linking him with either the theft of the vehicle or the theft of the saddle (housebreaking), yet he was charged with both.
“The court found that implicating Mtolo in the housebreaking matter was a stratagem designed to place an impediment to his release on bail in the motor vehicle theft matter.
“Mtolo testified that he was detained for a period of two years and eight months before the last charge was withdrawn and his liberty was restored to him.
“His unchallenged evidence was that, astonishingly, he made a total of 37 court appearances while detained. It is a sad indictment of the justice system, generally, that a matter can be prolonged for this length of time without judicial objection, only for all the charges to be withdrawn,” said Mossop.
After being freed in June 2014, Mtolo said he took three months to physically recover, he felt rejected in society and he returned to work, though he avoided eye contact with his colleagues.
He said they believed he had been convicted.
Mtolo claimed R3 million for contumelia (indignity) and deprivation of freedom due to malicious arrest and detention, alternatively unlawful detention, which he eventually increased to R5 million.
He also claimed R500,000 for impairments of dignity, good name and reputation due to malicious prosecution and R200,000 for loss of earnings.
ORDER
Mossop ruled that Cele under his capacity as Police Minister had to pay Mtolo R3,367,200 in damages.
The R3 million was awarded for contumelia and deprivation of freedom arising from malicious arrest and detention, R300,000 for impairment of dignity, good name and reputation arising from malicious prosecution and R67,200 for loss of earnings.
“Interest shall run on the aforesaid amount of R3.3 million from date of service of the summons until date of final payment.
“The defendant shall pay the plaintiff’s costs on the scale as between attorney and client,” said Mossop.
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