Businessman locked up during lockdown wins lawsuit against EMPD

The EMPD will have to cough up R90 000 in damages after two of its officers unlawfully arrested a Benoni CBD businessman two years ago during the lockdown.

On November 25, the Benoni Magistrate’s Court ruled in favour of the 33-year-old businessman who instituted a civil claim for damages against the EMPD.

The businessman, who wished to remain anonymous, was arrested in May of that year for contravening lockdown regulations after he was accused of selling cooked food at his business on Voortrekker Avenue.

The two EMPD officers, one a constable who joined the department in 2009 and the other an officer who has since died, confiscated the food as ‘evidence’, however, it is alleged they and police officers have eaten it.

The business owner was later released on bail. He claimed to have been held in police custody from 13:00 until 22:00 during Ramadaan and had to break his fast as a result of being detained in the holding cells.

It is reported that the officers failed to listen when they were told the shop was allowed to sell cooked food for home delivery under level four regulations.

The charge against the businessman was withdrawn at the Benoni Magistrate’s Court after his attorney, Suleiman Ebrahim, submitted written representations to the senior public prosecutor.

According to the information presented in court, a member of the community reported to the EMPD officers that the businessman was selling food contrary to the lockdown regulations.

It is alleged the officers proceeded to the premises where they observed the shop for a while before making their way inside. When they entered they saw the staff making food.

They advised the owner of the lockdown regulations against the sale and delivery of food and he was arrested.

According to magistrate Yunus Nana, nowhere does the EMPD officer mention the presence of customers or that they exited the premises with plastic containers of food.

“From the analyses of his testimony, it would appear that he adapted the evidence to cover up for his mistake. He was not properly acquainted with the regulations as he states in his statement that delivery of cooked food was prohibited,” said Nana.

The magistrate said the officer’s testimony lacked credibility and reliability.

“The statement of the deceased EMPD officer largely supports the businessman’s version – that he was in the bathroom when they arrived and the three workers were in the kitchen.

“It would have been unlikely that the owner would have been in the bathroom if they were busy selling food to customers,” he said.

He said if one looks at the probabilities, it is clear that the businessman’s version is more probable in this instance.

Nana added that the two officers were not properly acquainted with the updated regulations.

“As far as the value of the food that was confiscated, this was not contested in cross-examination. However, the claim for loss of earnings was contested and it was established that the business was closed for 26 days.

“Furthermore, the businessman did not produce his cash book wherein he kept his daily business records. His claim for loss of income is merely based on estimation and even though he had kept records, he failed to produce same.

“He also stated that because he feared victimisation by the metro police, he decided to keep the business closed and instead went for a holiday,” said Nana.

Magistrate Nana said the businessman succeeded in his claim for general damages as the arrest and detention were unlawful as well as the claim for confiscated food.

The EMPD will also pay R500 in respect of the confiscated goods.

The Benoni City Times tried to contact the businessman for comment but our efforts proved fruitless.

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