Man will remain in prison for 9 years until charges against him are withdrawn

A man who spent nine years behind bars and had charges against him withdrawn without ever being tried has been let down once again by the justice system.

“Nkosi”, who requested that his identity be kept secret due to the stigma attached to his almost decade-long detention, received a decision confirming that his arrest, detention and prosecution were unlawful. But the state is now doing everything possible to oppose this.

Johannesburg High Court Judge Moleboheng Mdalana-Mayisela rejected an application by the Minister of Police and the National Director of Public Prosecutions for leave to appeal, but they have now petitioned the Supreme Court of Appeal for leave to appeal in that court. This is likely because they are facing millions of dollars in damages, which Judge Mdalana-Mayisela found was clearly a case of unlawful arrest and detention.

A lawsuit was filed on the allegation of being a gang member

Nkosi said he was an “unofficial Uber driver” when he was arrested for possessing an unlicensed firearm. Seven days later, he was accused of being part of a “gang” allegedly responsible for ATM bombings and car thefts.

But even the police officer who arrested him testified that he found nothing illegal in Nkosi’s vehicle when he pulled him over, other than a few cellphones and a pair of binoculars.

Judge Mdalana-Mayisela said Nkosi should never have been pulled over and the police officer had “no probable cause” to stop and search him.

It was in January 2012.

Almost nine years later, in November 2022, after being denied bail and dozens of court appearances, Nkosi was finally released from prison when the prosecutor dropped the charges, claiming there was not enough evidence to proceed with the trial.

During this time he had become a victim of prison gang bullying and contracted tuberculosis.

His girlfriend, who was pregnant at the time of his arrest, gave birth to a son when Nkosi was released, refusing to acknowledge that he was the father and calling him only “uncle”.

His lawyer in the civil case, Muponisi Rikhotso, told GroundUp that Nkosi was now doing “odd jobs” to survive. He had been forced to move from the area where he had previously lived to avoid the stigma of a prison sentence.

The amount of the compensation claim still needs to be decided by the judge. However, in the summons he demands R50 million.

ALSO READ: The state lost its appeal and was ordered to pay more than R4 million in compensation for the unlawful detention of three men

Minister held responsible for unlawful arrest

The main issue at the liability hearing, which was also raised in the petition for leave to appeal, was the statute of limitations issue, as Nkosi had in fact submitted his claim too late. However, the judge ruled in Nkosi’s favour, saying the valid three-year period only started when he was released in 2020.

In assessing the evidence, the judge said Nkosi’s unlawful arrest and subsequent detention were intertwined and the Minister of Police was responsible.

The National Director of Public Prosecutions presented the testimony of a prosecutor who claimed that he had only temporarily withdrawn the charges because witnesses had not been subpoenaed.

However, Justice Mdalana-Mayisela said this contradicted what was written in the charge sheet, which stated that the charges were withdrawn for lack of evidence.

Noting the statements made by two police officers at the time of his arrest, the judge said Nkosi was not involved in the crimes and there was no legal basis to charge him.

The judge said the NPA should have refused to prosecute him from the beginning.

It ruled that both defendants were liable to pay Nkosi 100% of his proven damages and legal costs.

In response to the claim for damages, the defendants said Nkosi’s trial was postponed for various reasons, including the admission of guilt by some of the other defendants and the separation of the hearings. The case had to be postponed several times because his lawyer could not be found due to “being sick or applying to more than one court on the same date”.

The case also had to be postponed several times due to the Covid epidemic.

Moreover, Nkosi had abandoned his bail application upon new facts.

Man says he had tuberculosis and was sexually abused

In his request for compensation, Nkosi said conditions at Johannesburg Prison were appalling. The toilet in the crowded cell was not working, blankets and sponges were dirty, “itchy and smelly,” and the food was terrible. He contracted tuberculosis from fellow inmates and was subjected to sexual abuse.

The petition to the SCA is pending.

The defendants also argue in their petition to the SCA that Judge Mdalana-Mayisela was incorrect in her assessment of what constituted “reasonable suspicion” for an arrest and that one of the suspects pointed out that Nkosi’s red car was involved. crime.

Nkosi allegedly ramped the pavement to escape arrest.

They also say the court was wrong to conclude that the investigation was withdrawn due to lack of evidence; was temporarily withdrawn.

If the appeal is unsuccessful, the amount of compensation will be determined either by negotiation or at the next hearing, where Nkosi will have to give evidence.

This article Republished from GroundUp under a Creative Commons license. Read the original article Here.

ALSO READ: ‘The verdict brings a sense of relief and vindication’ -Jub Jub after NPA withdraws charges