A man who was awarded nearly R2m in damages after being detained for almost 18 months on gang rape charges has lost his payout, reports The Citizen.

Mabhaso Nontsele had successfully sued the Minister of Police and the NDPP for his unlawful detention.

The Eastern Cape High Court (Mthatha) ruled in his favour in 2021. Nontsele was arrested in Cacadu (formerly Lady Frere) for the alleged rape of a woman during a traditional ceremony in December 2013.

The woman was reportedly ‘highly intoxicated’ and unable to consent to sex, leading to the arrest of Nontsele and two other men. 

However, in July 2015, Nontsele was acquitted under the Criminal Procedure Act after the state conceded there was no prima facie evidence against him.

Nontsele sued the state for unlawful arrest, detention, and malicious prosecution.

However, he only succeeded on one aspect of his claim.

On 12 August 2021, Mthatha High Court Judge Buyiswa Majiki ruled that his detention had been unlawful from the date bail was refused until his eventual release – a total of 489 days.

Majiki found that Nontsele’s statement to the police was exculpatory, the prosecution had failed to inform the magistrate of the weakness in their case, and the DNA results were still pending.

Although the DNA results became available in March 2014, the accused had not been informed until his acquittal. As a result, Majiki awarded Nontsele R1.6m in damages. 

In 2022, the Minister of Police appealed the ruling in the High Court but was unsuccessful. The Minister then petitioned the SCA, with the leave to appeal being heard on 24 May 2024. 

Meanwhile, Nontsele filed a notice of intention to cross-appeal, challenging the High Court’s findings that he had failed to prove unlawful arrest and malicious prosecution.

In a first judgment delivered on 11 October 2024, SCA Acting Judge Ronel Tolmay, with Acting Judge John Smith concurring, upheld the High Court’s decision, according to The Citizen.

While Tolmay dismissed Nontsele’s appeal with costs due to his failure to formally file a leave to cross-appeal, she ruled that his entire detention had been unlawful. The acting judge also rejected the Minister’s appeal, ordering the state to cover the costs. 

In a second judgment, SCA Judge Nambitha Dambuza, with Judges Tati Makgoba and Nolwazi Mabindla-Boqwana concurring, disagreed with Tolmay’s conclusion.

Dambuza emphasised that Nontsele’s case was not based on his unlawful extended detention.

Instead, it centered on his allegation that there had been a conspiracy against him to oppose his bail application. ‘Mr Nontsele never tendered evidence to prove the collusion allegation,’ she said.

The judge stated that she reviewed the conclusions reached by Tolmay and Majiki, and the prosecution’s failure to communicate the weaknesses in the state’s case, including the pending DNA results. 

Dambuza further explained that a rape conviction can be secured even without positive DNA evidence, as long as the facts and circumstances of the case support such a conviction. 

Dambuza upheld the Minister’s appeal, set aside the High Court’s order and dismissed Nontsele’s R1.6m claim with costs.

Full report in The Citizen

Judgment