- Bongani Ntombela spent 14 months in jail before being acquitted.
- The court says the trial judge should not have allowed his lawyer to withdraw a crucial condonation application.
- Appeal upheld; damages awarded for wrongful arrest and detention.
After spending more than a year in prison for crimes he did not commit, Bongani Ntombela has finally found justice in the Gauteng High Court in Johannesburg.
The court overturned a previous decision that had dismissed Ntombela’s claim for damages against the Minister of Police due to a missed filing deadline by his lawyers.
Ntombela was arrested in September 2016 on charges of murder and assault. He spent 14 months in jail before being released on bail and was cleared of all charges in December 2017. Upon returning home to KwaZulu-Natal, Ntombela realized the full extent of his loss.
“I appreciated that I had been unlawfully arrested as I did not commit the crimes I had been accused of and that I should, in my words, make a claim, because I have lost a lot of time in detention,” the judgment records.
Ntombela only learned about his legal rights when he consulted an attorney in May 2018. Shortly after, his lawyers notified the police of his intention to sue for wrongful arrest and detention. The Minister of Police, however, argued that the notice was filed too late, missing the six-month requirement under the Institution of Legal Proceedings Against Certain Organs of State Act.
Although the High Court agreed Ntombela had been unlawfully arrested and detained, it dismissed his claim on this technicality. His condonation application for late notice was withdrawn on his lawyer’s advice, and the trial judge refused to allow it.
Court corrects the mistake
On appeal, the Gauteng High Court, led by Judge SDJ Wilson, found that the trial court erred in allowing the withdrawal. Judge Wilson, writing for the majority, said the lower court “failed to appreciate that it had a discretion to refuse to accept the withdrawal of the condonation application.” As a result, the dismissal of Ntombela’s claim was invalid.
In a detailed minority opinion, Judge A Wentzel explored when a debt arises in cases of unlawful arrest and detention, concluding that “the debt the appellant claims fell due on his arrest.” Nevertheless, she agreed that the court should have considered the condonation application rather than accepting its withdrawal.
Judge Wentzel also pointed out a factual error by the trial judge, who incorrectly stated that Ntombela had consulted his attorney in May 2017, when it was actually May 2018.
Ultimately, the court unanimously upheld the appeal, reinstated and granted the condonation application, and awarded damages to Ntombela for his unlawful arrest and detention.
Justice and common sense prevail
Judge Wentzel noted that the law recognises a debt “may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt.” For Ntombela, this realisation only came after he consulted a lawyer.
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