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The South Gauteng High Court has ordered the State to pay R2.5 million in damages after police failed to inform the prosecution that the accused was a victim of crime and had acted in self defence.
The court found the police kept the prosecution “in the dark” about Berea resident Ntokozo Xulu’s defence.
Acting Judge De Vos rebuked Hillbrow police for dereliction of duty, saying they failed Xulu when they withheld the information from the prosecutor and the magistrate.
De Vos said the police’s failure to inform the prosecutor that Xulu was defending himself against hijackers led to him being denied bail and spending two years in jail.
Xulu was acquitted of murder in 2021. He then filed papers to seek damages for the time spent in jail and its hardships.
In his papers, Xulu accused the police of unlawful arrest and failure to inform the prosecutor he was a victim of an attempted robbery.
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He told the court he lost more than two years of his life and his daughter, who relied on him for medical care, was left helpless. His wife walked out of their marriage while he was incarcerated.
Xulu said he lived in fear of gangs in Johannesburg Prison and suffered a mental breakdown, for which he was hospitalised and treated for more than two weeks.
De Vos said false information before the court can be detrimental.
“Mr Xulu says he explained he was the victim to the arresting officer, Sergeant Motena, when he was arrested.
“He says he explained he was being attacked and acted in self defence to the investigating officer, Constable Mokgopo, at the cells before he was charged.
“He says he repeated it at Johannesburg Prison, where he was detained, to anyone who would listen. Despite this constant refrain, the police did not tell the prosecution.
“Where the magistrate had been provided with false information, our courts have held that the police’s conduct caused the subsequent detention,” said De Vos.
The judge added unlawful conduct by police “has long intrigued and troubled litigants and the courts”.
The trial court heard two assailants accosted Xulu at the gate when he arrived home in Berea in 2018.
One of the would-be hijackers produced a knife after entering Xulu’s vehicle while the other stood next to his window.
Xulu managed to take out his gun and fire two warning shots through his window to scare off the attackers.
The knife-wielding man fled on foot, while the other stood his ground and reached for the front of his pants. Xulu said he shot him because he thought he was reaching for a gun.
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The attacker, identified as Mr Rodriguez, later succumbed to the gunshot wound.
Xulu drove to Hillbrow Police Station to report the incident but was arrested by police who were returning from the crime scene searching for him and his vehicle.
Both Motena and Mokgopo denied that they knew about the self defence claim. But De Vos said evidence showed that their commander knew that Xulu claimed he shot a suspect who was trying to hijack him.
“The letter establishes objectively that the police, at a minimum, the commander of the unit, knew of Mr Xulu’s defence from as early as a week after his arrest.
“Mr Xulu’s counsel asked Sergeant Motena and Constable Mokgopa how their unit commander knew of Mr Xulu’s defence – their responses were singularly unimpressive.
“The question was evaded, and their memories failed them. Mostly, they could not provide any explanation for how Mr Xulu’s defence made its way into a letter so soon after his arrest if he did not disclose his defence to the police,” said De Vos.
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Furthermore, it is improbable Xulu, having acted in self defence, would not tell the police of his defence.
“On these particular facts, this becomes weightier as Mr Xulu was arrested on his way to explain what happened to the police.
“The location where Mr Xulu was arrested supports this version. The police’s version is so improbable that it borders on implausible.”
De Vos added that when asked if he should have informed the prosecution about Xulu’s defence, Mokgopa said even if he knew, “it was not his job to explain it to the prosecution”.
“Constable Mokgopa’s answer was astonishing and is at odds with our law. Constable Mokgopa failed in his public duty,” said the acting judge.
The State was ordered to pay Xulu R2.5m in damages plus interest of 7% per annum as of his initial arrest in November 2018 and the legal costs he incurred.
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