- Plaintiff detained for over a month despite no evidence linking her to a crime.
- Arrest was unlawful, detention unjustified, and prosecution found to be malicious.
- Court awards R1.15 million in damages for violation of rights and reputational harm.
A woman who stopped to ask for water at a neighbour’s house in Kanyamazane in 2020 ended up in jail for over a month, accused, detained, and prosecuted without any evidence tying her to a crime.
Now, five years later, the Mpumalanga High Court in Mbombela has awarded Zethu Florence Mkhabela R1.15 million in damages, condemning the conduct of both the police and the National Prosecuting Authority.
The court found that Mkhabela’s arrest was unlawful, her detention unconstitutional, and her prosecution malicious. The court ruled that the police “set the wheel in motion” through a baseless arrest, while the prosecuting authority failed to properly assess the evidence, effectively extending her suffering without cause.
Arrested without evidence, detained for over a month
Mkhabela was arrested on 23 July 2020 after being found on the premises of a man named Dumisani Mdluli. She testified that she had merely stopped there to ask for water and was unaware of any crime. An argument broke out between Mdluli and some individuals who later arrived, and soon after, police detained her along with others, claiming stolen items were found at the property.
She was taken to Kanyamazane Police Station, and despite there being no evidence linking her to the alleged housebreaking, she was charged. She appeared in court on 27 July 2020, where bail was set at R1 000, but she could not afford it. She remained in custody until 24 August 2020, when her parents finally posted bail.
Police and prosecutor failed to apply their minds
Crucially, two state witnesses, the arresting officer and the investigating officer, confirmed under oath that there was no evidence against Mkhabela. She had not been caught committing a crime nor found with stolen property. Even the prosecutor conceded this but inexplicably proceeded to enrol charges for possession of suspected stolen property, despite the glaring lack of facts.
Judge Shai highlighted that section 40(1)(b) of the Criminal Procedure Act, which allows warrantless arrests for Schedule 1 offences, was not applicable in this case as the arresting officer failed to meet the legal threshold. “It is as clear as daylight… that the jurisdictional factors laid down… have not been met,” he said.
Prosecutor liable for malicious prosecution
The court found that the National Director of Public Prosecutions had acted maliciously by charging Mkhabela despite knowing the case would not stand. The prosecuting officer could not reasonably believe that there was a case to prosecute. Her delay in withdrawing charges, the court ruled, constituted indirect malice and an unjustified assault on the plaintiff’s dignity.
“Had the prosecutrix exercised due diligence in assessing or screening the docket, charges would not have been preferred,” said the court in the judgment, noting that the plaintiff’s detention post-court appearance could have been avoided entirely.
Damages awarded for trauma, humiliation, and reputational harm
Mkhabela’s ordeal caused severe emotional and social distress. She testified that in jail, she was humiliated, denied proper sanitary products and had to use T-shirts. Her food was taken by other inmates, and she has since been labelled a criminal in her community, affecting her trade as a traditional healer.
In light of the circumstances, the court awarded her a total of R1.15 million in damages; R250 000 for unlawful arrest, R150 000 for pre-court detention, R650 000 for post-court appearance detention (jointly and severally against both defendants), and R100 000 for malicious prosecution.
The court also awarded costs of suit on a party-and-party scale, including the cost of counsel.
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