The deprivation of liberty is a serious infringement on a person's rights. The emotional distress and reputational harm caused by wrongful detention and malicious prosecution justify significant compensation, but the award must also be fair and balanced.
This is according to an acting judge, who ordered the ministry of police and the National Prosecuting Authority to pay nearly R4 million in damages towards a man who was incarcerated for 523 days in prison on unsubstantiated charges.
Acting Judge LM Morgan, sitting in the North West Province High Court in Mafikeng, said: “The principles of law require that the quantum of damages reflects the actual harm suffered while avoiding excessive awards that place an undue burden on the public purse.”
Tshepiso Motsose initially turned to court after he was arrested without a warrant on an array of charges, including murder. While he had from the start said he knew nothing about the accusations, his trial proceeded but charges were eventually withdrawn against him. After being locked up for 523 days, he was told that he could go home.
Motsose had meanwhile died, but the executor of his estate, Freddy Motsose, pursued the claim further.
He claimed more than R7.8 million from the minister and the NPA - R15,000 for each day that Tshepiso had to spend behind bars. This was after a court earlier ruled that the arrest, detention, and subsequent prosecution was malicious.
Tshepiso was arrested by members of the SAPS in Zeerust on allegations that he was involved in the commission of various crimes, including murder, robbery, and housebreaking, with intent to rob that occurred at a residence in the area.
He was arrested without a warrant on the basis that it was alleged that he owned All-Star sneakers which he was alleged to have been wearing on the day of the commission of the crime.
The arresting officer claimed these All-Star sneakers matched prints found at the crime scene. While Tshepiso was not found on the scene, the SAPS officers followed the shoe footprints, which led them to him and the other accused persons.
Upon their arrest, Tshepiso was wearing shoes which, to the police, matched the shoe prints of those that they followed through the trial.
He elected not to apply for bail at his first appearance. On his third appearance, he applied for bail, which was denied. He was thus remanded in custody. He remained detained in SAPS custody for 523 days when the charges against him were eventually withdrawn due to lack of evidence by the prosecutor.
The court earlier found that no reliable evidence was produced throughout his detention to justify his arrest or prosecution. The police relied on unsubstantiated claims, including an alleged confession that was not recorded in the docket.
The NPA failed to adequately review the case, relying on an uncommissioned statement to initiate and continue the prosecution, resulting in his prolonged and unjustified incarceration, as it was earlier found.
Judge Morgan now only had to determine how much damages should be paid towards his estate.
The judge took into account that Tshepiso was detained for 523 days during which no credible evidence was produced to justify his continued incarceration.
For the malicious prosecution claim against the NPA, the plaintiff suggested an amount of R500,000, arguing that this is reasonable given the circumstances of the case and the conduct of the prosecutors involved.
Judge Morgan said: “When quantifying damages, courts must also consider the significance of the right to personal liberty within the broader context of South Africa's constitutional democracy. The right to personal liberty is sacrosanct and must be guarded with the utmost vigilance.”
The judge said Tshepiso’s experience was undoubtedly traumatic, involving a prolonged detention based on unsubstantiated claims and a prosecution initiated without prima facie evidence.
He noted that the conduct of the police and the prosecutor in the criminal matter fell short of the standards expected of these institutions. “Their actions resulted in a gross violation of the plaintiff's rights, causing significant emotional distress and reputational harm,” the judge said.
But, he added, there are many legitimate calls upon the public purse. While the plaintiff's suffering must be adequately compensated, the award should not be so excessive as to unduly burden public resources.
“In the absence of any evidence before me suggesting that the deceased plaintiff was assaulted and suffered severe psychological harm or trauma other than that associated with a deprivation of liberty, the amount of R15,000 (fifteen thousand rands) per day is without proper justification.”
The judge concluded that R7,500 for each day of incarceration is a fair amount.
He ordered that 80% of the total sum of R3,922,500.00 awarded is to be paid by the SAPS and the remaining 20% by the NPA.
Pretoria News
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