An assistant boilermaker accused of housebreaking and vehicle theft was awarded R3.3 million in damages against Police Minister Bheki Cele after being wrongfully held and prosecuted without an iota of proof and denied release for three years.
After over three years behind bars, at least three police stations, and the New Prison Correctional Centre in Pietermaritzburg, the case against Mdunyazi Mtolo was eventually dropped without ever coming to trial.
Mtolo was arrested in September 2011 and imprisoned and prosecuted with malice, according to the KwaZulu-Natal High Court in Pietermaritzburg.
He was imprisoned and denied bail until the housebreaking charges were dropped in June 2013, and the car theft charges were dropped a year later in June 2014, while he was still in jail.
During former President Jacob Zuma’s first term, former police minister Nathi Mthethwa led the SA Police Service (SAPS), while Cele served as National Police Commissioner until he was suspended in October 2011.
Judge J Mossop, who took over the case from interim Judge AJ Naidu, heard how Mtolo lied during bail petitions by police officers and state witnesses. He eventually determined that there was not “an iota of evidence” against Mtolo for both housebreaking and auto theft.
Police also said he was detained in the stolen car, but he was actually arrested at work, in front of his coworkers, who he claims now believe he is a criminal.
Mtolo told the court that during his nearly three years in detention, he was held for two days at each of the Camperdown and Plessislaer police stations without being noted in the record books. He complained about the deplorable conditions in the police cells.
He was then driven to Bizana in the Eastern Cape and thrown into the luggage compartment of a SAPS Toyota Fortuner for the long journey.
He was then transported to New Prison, where he claimed conditions were improved, though he did recall being stripped naked in front of other convicts during a contraband concealment check upon his arrival.
Mtolo claimed that his nearly four-metre-squared cell was shared with ten other detainees and that they were provided insipid food like porridge with no sugar, boiled and watery samp, or stiff phutu with cabbage or a small bit of curry.
Mtolo claimed that in order to avoid rape or assault in prison, he gave R500 and 200 cigarettes to prison gangs each month.
He testified in court that he had witnessed other detainees being stabbed, raped, and beaten with a sock filled with keys. He told the court he was never assaulted or raped, though he had been forcefully touched on his buttocks.
“I was impressed by Mtolo as a witness … He vividly, but not sensationally, conveyed his experiences to the court.
“He could have embellished upon those experiences, for example, by narrating that he had in fact been assaulted. Had he done so, there would have been no way of disproving that. But he did not,” said Mossop.
Naidu, who presided over the case, stated that Mtolo’s detention and prosecution strongly suggested that former top cop Cele, a state witness, and police personnel were working together to create evidence against Mtolo.
“There is not a single iota of independent and objective evidence against Mtolo linking him with either the theft of the vehicle or the theft of the saddle (housebreaking), yet he was charged with both.
“The court found that implicating Mtolo in the housebreaking matter was a stratagem designed to place an impediment to his release on bail in the motor vehicle theft matter.
“Mtolo testified that he was detained for a period of two years and eight months before the last charge was withdrawn and his liberty was restored to him.
“His unchallenged evidence was that, astonishingly, he made a total of 37 court appearances while detained. It is a sad indictment of the justice system, generally, that a matter can be prolonged for this length of time without judicial objection, only for all the charges to be withdrawn,” said Mossop.
After being freed in June 2014, Mtolo said he took three months to physically recover, he felt rejected in society and he returned to work, though he avoided eye contact with his colleagues.
He said they believed he had been convicted.
Mtolo claimed R3 million for contumelia (indignity) and deprivation of freedom due to malicious arrest and detention, alternatively unlawful detention, which he eventually increased to R5 million.
He also claimed R500,000 for impairments of dignity, good name, and reputation due to malicious prosecution and R200,000 for loss of earnings. Mossop ruled that Cele under his capacity as Police Minister had to pay Mtolo R3,367,200 in damages.
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The R3 million was awarded for contumelia and deprivation of freedom arising from malicious arrest and detention, R300,000 for impairment of dignity, good name, and reputation arising from malicious prosecution, and R67,200 for loss of earnings.
“Interest shall run on the aforesaid amount of R3.3 million from the date of service of the summons until the date of final payment.
“The defendant shall pay the plaintiff’s costs on the scale as between attorney and client,” said Mossop.
