R600,000 damages award reduced to R50,000 on appeal

Police have managed to overturn a judgment which would have seen them paying a 35year-old Eastern Cape man hundreds of thousands of rands after he successfully proved he was unlawfully arrested and detained on a murder charge.

On Tuesday, the high court in Makhanda granted an appeal brought by police minister Bheki Cele against Loyiso Mahleza of Bedford, who had been awarded R600,000 in a damages claim he instituted after his arrest on December 24 2015.

The appeal stemmed from a December 2019 order that Mahleza be paid damages after

he had allegedly been unlawfully detained for 19 days before he was released on bail.

He was awarded the R600,000 after the court found that the police had no legal right to arrest him or keep him in custody for such a long period of time.

However, in the most recent ruling, the court found that Mahleza had only been unlawfully detained for a period of five hours after his arrest and before his first appearance in the Adelaide court.

Mahleza was arrested on December 24 2015 at 4am and taken into custody.

He appeared in the Adelaide court at 9am, where he was not asked if he wished to apply for bail.

After numerous delays he was released on R600 bail on January 26 2016.

The police believed he had murdered his cousin, Mlondolozi Mahleza, on August 29 2015. Mahleza was later found not guilty on the charge of murder but guilty on a charge of assault.

In the recent judgment, penned by high court judge Irma Schoeman and agreed to by four other judges, it was found that the investigating officer in the murder case, Warrant Officer Khaya Mili, did not have sufficient reason or suspicion to arrest Mahleza.

In the judgment it was found that various statements contained in the murder docket had implicated Mahleza of having assaulted Mlondolozi earlier in the day and immediately afterwards he had been shot in the legs by Thabiso Makawu outside the Entrali Tavern in Bedford.

Makawu was later found guilty of the murder.

It was found at the time that on the day of the murder Mahleza and Makawu were at the tavern when Mlondolozi arrived and stabbed Mahleza in the left shoulder with a knife.

After the stabbing, Makawu tried to intervene and was stabbed in the eye and arm.

While Mlondolozi continued attacking him, Makawu managed to find his firearm, which had fallen out of his pocket, and fired twice, hitting Mlondolozi once in each leg. It is alleged that after the shooting Mahleza then assaulted Mlondolozi before he was taken to hospital, where he died.

In her judgment Schoeman said evidence proved Mahleza had been kept in custody unlawfully after being arrested and taken to a holding cell for five hours.

“In our view the sum of R50,000 is appropriate to compensate [Mahleza] for damages suffered by him,” Schoeman said.

An application to sue the director of public prosecutions, which was previously dismissed, was again dismissed by Schoeman.