- The Supreme Court of Appeal overturned a High Court award that granted Nkosana Thomas Leso R1 million in damages.
- The appeal court found that an earlier declaration of unlawful detention did not automatically make the State liable for compensation.
- The court ruled that any claim Leso may have had had been prescribed and dismissed the matter with costs.
The Supreme Court of Appeal has overturned a High Court order that awarded Nkosana Thomas Leso R1 million in damages after he was kept in custody beyond 48 hours without being brought before court following his arrest while on parole.
Leso, who is serving a 28-year prison sentence for attempted rape, attempted murder, robbery with aggravating circumstances and housebreaking, was granted parole in August 2013 under conditions that included electronic monitoring. This required him to wear an ankle device linked to a GPS receiver so Correctional Services could monitor his movements while he was in the community.
His return to custody began on 27 June 2014, when he lost the GPS receiver and reported it to Correctional Services. Officials issued a detention warrant and arrested him that same day. He was detained at Baviaanspoort Correctional Centre. Although his arrest was lawful, he was not brought before a court within 48 hours, as required by Section 70(2)(b) of the Correctional Services Act.
That failure led to earlier litigation in which a court declared that detention beyond the 48 hours was unlawful. Leso later relied on that finding to seek damages for loss of liberty, arguing that the earlier ruling settled the question of unlawfulness and left only the amount of compensation to be decided. The High Court in Pretoria accepted that argument and awarded him R1 million.
The earlier declaration did not settle the damages claim
The Supreme Court of Appeal found that the High Court had interpreted the earlier judgment too broadly. The appeal court held that the earlier ruling only decided that Correctional Services had failed to comply with its duty to bring Leso before the court within 48 hours. It did not determine every legal requirement needed to succeed in a damages claim.
Judge AM Kgoele wrote, “A finding that the detention was unlawful because it breached a statutory provision is not sufficient per se to invoke liability.”
The court said questions of wrongfulness, factual causation, legal causation and the exact period of unlawful detention were never finally decided and remained open for determination.
Judge Kgoele stated, “For delictual liability to ensue, more was required to be proved by the respondent.. The elements of causation, factual and legal, remained open, as did that of wrongfulness.”
Parole revocation and prescription ended the claim
The appeal court also examined what happened after Leso’s arrest. On 6 October 2014, the Correctional Supervision and Parole Board revoked his parole. That meant he was legally required to remain in prison to serve the rest of his sentence until he was later considered for parole again and released on 31 October 2016.
That revocation was never challenged. Judge Kgoele said, “It follows that from 6 October 2014, the respondent was lawfully detained.”
The court found that any earlier portion of a possible claim had already prescribed, while the later period of detention followed a lawful parole revocation. In those circumstances, no viable damages claim remained.
Judge Kgoele concluded, “Any possible claim that the respondent might have against the appellants has prescribed.”
The Supreme Court of Appeal set aside the R1 million award and replaced it with an order dismissing Leso’s claim with costs.
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