Innocent men jailed for nine months get two weeks' compensation

Just how much compensation they should get will go before the Constitutional Court next month

Ernest Mabuza Journalist
The Constitutional Court will hear an appeal by two innocent men who were jailed for nine months but, on a technicality, have been compensated for only two weeks of their illegal detention.
The Constitutional Court will hear an appeal by two innocent men who were jailed for nine months but, on a technicality, have been compensated for only two weeks of their illegal detention.
Image: JAMES OATWAY

Two men who spent just over nine months in detention for murders they did not commit have approached the highest court in the land for relief.

The approach to the Constitutional Court follows a judgment by the Supreme Court of Appeal in April. In that judgment, the majority of the court ruled that two men held in custody from May 2005 until February 2006 — when a murder charge against them was withdrawn — can be awarded damages for only two weeks of detention.

The court said they could not sue the minister for damages after they appeared in court on June 14.

Johannes Eugen Mahlangu  and Phannie Johannes Mtsweni were arrested on May 29 2005 for murdering Vusi Motebu, his partner Thuli Mathebula and two of their three children in Mhluzi, Middelburg, Mpumalanga.

They did not commit the crimes. Their arrest followed a forced confession by Mahlangu, obtained by a policeman who then implicated Mtsweni. During their detention, the police arrested the real perpetrators, who were later convicted and sentenced to life imprisonment.

The high court in Pretoria had found that the men's arrest and detention was lawful and ordered that the minister pay R90,000 to Mahlangu and R50,000 to Mtsweni.

However, the high court held that their unlawful detention came to an end once they were detained in terms of a court order on May 31 2005 after their first appearance in court.

On appeal, the majority of the SCA agreed with the findings of the high court but ordered that the minister of police pay Mahlangu R190,000 and R150,000 to the executor of the estate of the late Mtsweni.

Mtsweni died after the institution of the damages claim.

However, two dissenting judgments disagreed and said they would have awarded damages against the minister of police for the whole period the two men were in detention.

In their heads of argument filed with the Constitutional Court this month, lawyers for Mahlangu and the estate of Mtsweni asked the court to order that the minister of police pay R490,000 to Mahlangu and R450,000 to the executor of Mtsweni's estate.

The lawyers said the case in point was whether the police could, after a wrongful arrest, be held liable for the entire period of an accused person's post-appearance detention in circumstances where the police obtained a false confession through torture and coercion.

“This case thus concerns issues of fundamental constitutional import, including the right to personal liberty and the applicants' entitlement to be adequately compensated for the unlawful breach of the applicants' constitutional right to liberty,” their advocates  Alwyn Rossouw SC, Sarel Myburgh and Casper Badenhorst said in written submissions to the court.

However, the minister of police said once brought to court and charged in June 2005, Mahlangu and Mtsweni should have sought their release through a bail application.

“Furthermore, there is no evidence that any of the applicants made application for their release from detention by challenging the lawfulness of their detention as they were entitled to do in terms of ... the constitution,” advocates for the minister, Roshan Bedhesi SC and Dharmeshan Moodliyar, said in their written submissions.

They said on the totality of evidence, there was no basis to find or impute that the minister was the legal cause of their detention after June 14, 2005.

The matter is set down for November 12.

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