Eastern Cape man loses R1.6m claim he won after unlawful detention for gang rape

A man who was awarded nearly R2 million in damages after being detained for almost 18 months on gang rape charges has lost his payout.

Mabhaso Nontsele had successfully sued the Minister of Police and the National Director of Public Prosecutions (NDPP) for his unlawful detention. The Eastern Cape High Court in Mthatha ruled in his favour in 2021.

Nontsele had been arrested in Cacadu (formerly Lady Frere) for the alleged gang rape of a woman during a traditional ceremony in December 2013.

The woman was reportedly “highly intoxicated” and unable to consent to sex, leading to the arrest of Nontsele and two other men.

However, in July 2015, Nontsele was acquitted under the Criminal Procedure Act after the state conceded there was no prima facie evidence against him.

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Nontsele sued the state for unlawful arrest, detention, and malicious prosecution. However, he only succeeded on one aspect of his claim.

Eastern Cape man awarded R1.6 million for unlawful detention

On 12 August 2021, Mthatha High Court Judge Buyiswa Majiki ruled that his detention had been unlawful from the date bail was refused until his eventual release – a total of 489 days.

Majiki found that Nontsele’s statement to the police was exculpatory, the prosecution had failed to inform the magistrate of the weakness in their case, and the DNA results were still pending.

Although the DNA results became available in March 2014, neither Njotini nor the prosecution informed the accused until his acquittal.

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As a result, Majiki awarded Nontsele R1.6 million in damages.

In 2022, the Minister of Police appealed the ruling in the high court but was unsuccessful.

The minister then petitioned the Supreme Court of Appeal (SCA), with the leave to appeal being heard on 24 May 2024.

Meanwhile, Nontsele filed a notice of intention to cross-appeal, challenging the high court’s findings that he had failed to prove unlawful arrest and malicious prosecution.

First SCA judgment upholds high court’s ruling

In a first judgment delivered on 11 October 2024, SCA Acting Judge Ronel Tolmay, with Acting Judge John Smith concurring, upheld the high court’s decision.

While Tolmay dismissed Nontsele’s appeal with costs due to his failure to formally file a leave to cross-appeal, she ruled that his entire detention had been unlawful.

The acting judge also rejected the minister’s appeal, ordering the state to cover the costs.

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“The harm done to any unlawfully detained person’s mental and physical well-being is detrimental and the high court cannot be faulted for finding that the detention was unlawful and awarding damages,” the first judgment reads.

Accused’s R1.6 million claim not based on unlawful detention

In a second judgment, SCA Judge Nambitha Dambuza, with Judges Tati Makgoba and Nolwazi Mabindla-Boqwana concurring, disagreed with Tolmay’s conclusion.

Dambuza emphasised that Nontsele’s case was not based on his unlawful extended detention.

Instead, it centered on his allegation that Njotini and Maarman had conspired against him by opposing his bail application.

“Mr Nontsele never tendered evidence to prove the collusion allegation,” she said.

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The judge stated that she reviewed the conclusions reached by Tolmay and Majiki, who had found Nontsele’s detention unlawful due to Njotini and the prosecution’s failure to communicate the weaknesses in the state’s case, including the pending DNA results.

She noted that the DNA tests were “neutral” and did not definitively exonerate or implicate Nontsele.

Dambuza further explained that a rape conviction can be secured even without positive DNA evidence, as long as the facts and circumstances of the case support such a conviction.

Report confirms victim’s gang rape

Dambuza also pointed out that Njotini presented evidence, including the J88 medico-legal report and statements from Nontsele, the victim, and other state witnesses.

“According to the J88, the complainant had sustained injuries which were consistent with sexual assault.

“By all accounts, the fact that the complainant had been sexually assaulted was not in dispute,” the judgment reads.

She, therefore, found that there was “substantially more information” that implicated Nontsele, that the bail magistrate would have had to consider, in addition to the “neutral” DNA results.

“Courts have, in appropriate circumstances, considered the results of DNA analysis to be superseded by other evidence.”

Second SCA judgment set aside Eastern Cape man’s R1.6 million

Additionally, Dambuza referenced a previous legal case involving Oscar Vusi Thwala, who sought to appeal an SCA ruling in the Constitutional Court (ConCourt).

Thwala had been convicted of multiple offences, including rape.

Dambuza noted that the ConCourt had heard Thwala’s case for a third time and, in its 2018 judgment, had assessed the role of DNA evidence.

The apex court ultimately ruled in 2018 that in cases of gang rape, the fact that the DNA evidence matched Thwala’s co-accused, but not him directly was not significant.

“The Constitutional Court considered the other evidence on record and held that the Supreme Court of Appeal had correctly dismissed the application for leave to appeal based on lack of prospects of appeal.

“In the case before us, even if Mr Nontsele had brought a claim for damages on the basis of unlawful extended detention, it would fail on the same reasoning as in Thwala. For each of the reasons set out above, the appeal must be upheld,” she ruled.

Dambuza upheld the minister’s appeal, set aside the high court’s order and dismissed Nontsele’s R1.6 million claim with costs.

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