South Africa

GROUNDUP

Constitutional Court orders Minister to pay police torture victims

Judges in KwaZulu-Natal say it had taken seven years and 46 court appearances from the time of Sihle Kunene’s arrest to his conviction for raping an 11-year-old girl. (Illustration: Lisa Nelson)

Two men were detained for eight months for murdering a family — a crime they had no involvement in.

First published by GroundUp.

The Constitutional Court has ordered the Minister of Police to pay R500,000 compensation to Johannes Mahlangu and Phanie Mtsweni for their unlawful eight-month detention and torture by the South African police in 2005. Mtsweni died before the judgment was delivered.

In 2005, a family was brutally murdered in their Middleburg home in Mpumulanga. A young girl was raped before she was killed. Her three-year-old sister was the only survivor.

A few days later, the police entered Johannes Mahlangu’s home without a warrant and arrested him for the crimes in front of his family. He was taken to the Middleburg office of the Serious Violence and Organised Crime unit for interrogation.

Read the judgment here.

After he denied any involvement in the crimes, the police tortured him for several hours until he made a false confession. His confession also falsely implicated his neighbour, Phanie Mtsweni, who was arrested without a warrant the same day.

It later emerged that the police had no evidence to implicate Mahlangu or Mtsweni in the crimes and did not explain their constitutional rights to them before their arrest.

The following day, they were taken to the Middleburg magistrate’s court for their first appearance. Neither was represented by a lawyer but both asked to be released on bail.

But before the court proceedings began, the investigating police officer, Lieutenant Mthombeni, handed the prosecutor Mahlangu’s false confession. He did not tell him it was obtained through torture, which made it inadmissible in court.

Based on the false confession, the prosecutor asked the magistrate to postpone the hearing because he wanted to oppose the bail application. The magistrate postponed the case and ordered that Mahlangu and Mtsweni remain detained until their next appearance. Mahlangu later testified that the magistrate did not tell them they had a right to oppose the prosecutors request for a postponement.

Over the next eight months, they appeared in court 14 more times. On each occasion, the magistrate ordered their continued detention. Mahlangu never applied for bail. Mtsweni appears to have applied for bail but it seems that his request was refused.

They were later released once the true perpetrators of the crimes were arrested and the Director of Public Prosecutions declined to prosecute them.

Following their release, they started proceedings in the high court to hold the Minister of Police liable for the violation of their constitutional rights, for psychological trauma and loss of income arising from their wrongful arrest, torture and eight-month detention.

History of the case

In the high court, Lieutenant Mthombeni admitted the police had no evidence to implicate Mahlangu or Mtsweni apart from the false confession. He also admitted that he knew the prosecutor would rely on the false confession to request their continued detention.

Mahlangu explained in court how the police continued to assault and torture him and Mtsweni during their continued incarceration. He also said they were assaulted and threatened by other prisoners who believed they were guilty of murdering the Middleburg family. They were later put into solitary confinement for two months to be protected from other prisoners, he said.

The high court accepted that the constitutional rights of Mahlangu and Mtsweni were violated by the police and that their arrests were unlawful.

The court did find, however, that the Minister of Police was not liable for their eight-month detention. This was because their detention ceased to be unlawful when the magistrate ordered their continued detention at their first court appearance the day after their arrest. The high court, therefore, said the Minister was not liable for their lost income and any psychological trauma they suffered after the magistrate ordered their continued incarceration.

Appeals

Mahlangu and the executor of Mtsweni’s deceased estate took the judgment on appeal to three judges in the high court arguing the Minister should be liable for the eight months they were detained. After their appeal was rejected, they went to the Supreme Court of Appeal.

The majority judgment of the Supreme Court of Appeal said the high court was correct.

According to the majority judgment by Acting Justice Petrus Koen, Mahlangu’s false confession was the reason the magistrate ordered their continued detention after their first appearance. However, had they applied for bail at their next appearance, they most likely would have been released as it would have emerged the confession was false and obtained through torture. The fact they never made a proper bail application meant the false confession was not the legal cause for their continued detention after their first appearance.

In a minority judgment, Justice Xola Petse and Justice Christaan van der Merwe disagreed. They said the false confession was the only reason the prosecutor wanted to oppose bail and requested continued detention. The minority judgment, therefore, said the Minister should be liable to compensate Mahlangu and Mtsweni for the entire eight months they were detained.

Why the Concourt held the Minister liable for the whole detention

A unanimous Constitutional Court judgment by Justice Zukisa Tshiqi said the high court and Supreme Court of Appeal incorrectly found that the Minister was not liable for the entire period of detention.

According to the judgment, Lieutenant Mthombeni knew there was no evidence (aside from the false confession) to justify keeping Mahlangu and Mtsweni in detention. He had a duty to disclose to the prosecutor that he knew the confession was obtained through torture and that Mahlangu and Mtsweni had been unlawfully arrested. His decision to keep this information from the prosecutor was unlawful.

The duty to disclose this information existed for the entire period that Mahlangu and Mtsweni were kept in detention. His failure to inform the prosecutor of the false confession while they were detained was the sole reason why they continued to remain in jail, Justice Tshiqi said.

The failure of Lieutenant Mthombeni to disclose this information meant that the Minister should be held liable to compensate Mahlangu and Mtsweni for their entire eight-month detention.

Justice Tshiqi also said that the Supreme Court of Appeal was wrong to criticise Mahlangu and Mtsweni for not making a bail application after their first appearance. This was because their right to claim compensation from the Minister arose from the moment it was established that their detention was unlawful. The fact they did not apply for bail after their first appearance did not change the fact there was never a lawful reason to detain them in the first place.

The Minister was therefore ordered to pay Mahlangu and Mtsweni R500,000 as compensation for the entire period of their eight-month detention and violation of their constitutional rights. The Minister was also ordered to pay their legal costs. DM

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