Illegally detained for 22 hours in a filthy cell after the police mistook pieces of glass for illicit diamonds, an Uber driver, who is also a motivational speaker, turned to the North West High Court, sitting in Mafikeng, to claim R150 000 in damages from the police.
Judge Ronald Hendricks concluded that R60 000 in damages for unlawful arrest and detention was a fair amount to pay Tony Sethaba.
While he gave a detailed account about what had happened during and after his arrest, the SAPS offered no defence. The police initially noted an intention to defend the claim but never forwarded a defence to the court. There was also no appearance for or on behalf of the SAPS by the state attorney.
Sethaba testified that on the morning of December 19, 2022, he had been with six friends, standing under a tree, when members of the Community Police Forum had arrived. They had asked them questions and wanted to search them. He and his friends had resisted, saying the CPF members were not police officers.
The police had been summoned and had searched the men and Sethaba’s car, without permission or a search warrant. They had found small pieces of glass in the car.
Sethaba had been told that he should drive his car to the police station, accompanied by one of the police officers. He had done so.
A notice of rights document had been completed and handed to him, which he had signed, although the contents thereof had neither been read to him nor explained. The charge was for possession of illicit diamonds.
Sethaba had then been detained in a small police cell with 16 other men. There had been no mattresses in the cell, only blankets. The blankets had been filthy, smelly and lice infested. The toilet had emitted an unbearable sewerage smell in the cell, he told the court.
He said he was claustrophobic and a non-smoker. The cell and the blankets had reeked of smoke, which had affected his lungs. He had not been provided with either food or something to drink.
The following morning, he had been taken out of the cell, after having been locked-up for 22 hours. He had signed a warning statement and been released, but nothing had come of the charge.
The 43-year-old Uber driver told the court that he had felt humiliated when he had been arrested in the presence of his friends and other people. When he had been released, he had had to burn his clothes and the blankets at home because of the lice.
Sethaba said he was a motivational speaker for the youth, but his self-esteem had been lowered as people were gossiping about him and calling him a prisoner.
Judge Hendricks said it was trite law that an arrest without a warrant of arrest was, on the face of it, unlawful, unless there were jurisdictional factors that justified the arrest.
The onus to prove that the arrest was legal rested on the SAPS but it had not bothered to do so.
The judge said the deprivation of liberty was a serious infringement and violation of a person’s constitutional rights, as enshrined in the Bill of Rights and the Constitution.
“Interference with a person’s liberty can only take place under restrained conditions in a constitutional democracy as in South Africa. Personal freedom is highly valued,” he said.
In deciding how much to award in damages, the judge said each case had to be decided on its own facts and merits. The amount of damages had to be fair and just, taking into consideration all the relevant facts and factors that played a role in the determination of the amount of damages to be awarded.
The judge noted that Sethaba had been locked up for about 22 hours, under circumstances that had been less than favourable. “No evidence whatsoever was presented for and on behalf of the defendant (state), to dispute this.”
In awarding him R60 000 in damages, the judge said the incident had been a huge embarrassment for Sethaba and he had felt humiliated.
Pretoria News