A woman who was arrested and detained for more than a month after asking for water at a neighbour’s home has been awarded R1.15m in damages by the Mpumalanga High Court.

Zethu Florence Mkhabela was arrested on 23 July 2020 when she visited Dumisani Mdluli’s premises to ask for water.

She spent 32 days in custody before being released on bail, only to have all charges eventually withdrawn due to lack of evidence.

The Citizen reports that Judge AJ Shai found both the Minister of Police and the NDPP liable for unlawful arrest, detention and malicious prosecution in a judgment delivered on 6 August. 

An incident at Mdluli’s home shortly after she arrived there seeking water led Mkhabela to realise items had been found in the house that were somehow linked to a crime. She was arrested and detained in connection with the stolen items.

The constable who detained Mkhabela testified that he had detained her ‘so that further investigations could take place’.

‘There was no evidence that plaintiff was involved in the burglary and that she was found in possession of any stolen items,’ the court noted.

The investigating officer confirmed this lack of evidence. The prosecutor testified that after reviewing the docket, she could not charge Mkhabela with housebreaking, as the police suggested, due to a lack of evidence.

Instead, she incurred charges for possession of suspected stolen property.

She reasoned that ‘witnesses stated that plaintiff was found on the premises where the suspected stolen property was found’. The prosecutor later withdrew all charges, acknowledging insufficient evidence.

‘It boggles one’s mind in understanding on what basis the prosecutrix decided on charging the plaintiff for possession of suspected stolen property,’ the judge said, according to The Citizen.

Shai ruled that the arrest violated Section 40(1)(b) of the Criminal Procedure Act, which requires reasonable suspicion of criminal activity. 

‘It is as clear as daylight from Mr Shiba’s testimony that the jurisdictional factors laid down in section 40(1)(b) have not been met,’ the judgment reads.

The court addressed the complex question of liability for post-court appearance detention, applying precedent from De Klerk v Minister of Police.

Using the ‘but-for’ test, Shai determined that Mkhabela’s extended detention resulted directly from the initial unlawful arrest.

‘But for the unlawful arrest, the plaintiff could not have been detained and be further detained after the first court appearance,’ Shai said.

The judge found the prosecution malicious, noting the prosecutor’s ‘wanton disregard for facts not warranting prosecution’.

The judge found that prosecutor Msimango lacked reasonable grounds.

‘I cannot find that she genuinely believed that there was a reasonable and probable cause to proceed with the prosecution. Her decision to withdraw the charges should have been taken even before bringing the plaintiff to court,’ Shai said.

Mkhabela testified about humiliation in custody, inmates taking her food, inadequate toiletries and having to use T-shirts during menstruation.

Beyond physical hardships, her reputation suffered lasting damage.

Shai awarded damages totalling R1.15m.

The court ordered the Police Minister to pay individually for the unlawful arrest and initial detention. 

However, both the Minister and NDPP were held jointly liable for the extended post-court appearance detention.

The defendants were also ordered to pay legal costs, including counsel fees, on a party-and-party scale, The Citizen report says.

Full report in The Citizen