Police Minister Bheki Cele in Soweto on 11 July 2022. Picture: Nigel Sibanda
The Supreme Court of Appeal (SCA) has upheld a high court ruling ordering outgoing Police Minister Bheki Cele to pay damages to former ANC councillors who were unlawfully arrested and tortured by the police.
Former OR Tambo district municipality deputy mayor, Thandekile Sabisa, and Lawrence Mambila, a former mayoral committee member, have been embroiled in a legal battle with the state.
Sabisa and Mambila were accosted and apprehended by at least 10 police officers during a mayoral committee meeting at the municipality’s office in Mthatha on 18 April 2016.
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The councillors were arrested in connection with the attempted murder of former Mhlontlo Local Municipality speaker, Xolile Kompela and the murder of his bodyguard, Zukile Nyontso.
It later emerged that the pair were assaulted and tortured while in police custody after they decided to sue the police minister for R10 million each.
In June 2023, Sabisa and Mambila were awarded R400 000 in damages for unlawful arrest and detention, as well as R110 000 for assault, torture and abuse by the Eastern Cape High Court in Mthatha.
This led Cele to appeal to the SCA in an effort to overturn the ruling.
Sabisa and Mambila contended that they were arrested without any warrants and were detained “without a reasonable and probable cause” for nine days.
The former ANC councillors claimed that on the day of their arrest, they were driven in separate vehicles to an office in Butterworth, where they were interrogated and assaulted by the police.
They were admitted to a hospital for treatment the following day, where they remained under guard until 26 April.
Cele denied that the pair were beaten up and tortured.
However, SCA Judge Nolwazi Mabindla-Boqwana disagreed.
The judge, in her ruling delivered on Friday, 28 June, noted that the distance between Mthatha and Butterworth was around 120 kilometres, which is a one and a half to two-hour drive.
“The probabilities regarding whether the assault took place favour the respondents. They were kept in an office in Butterworth for approximately five hours with no clear justification for such length of detention being given by the minister’s witnesses,” the judgment reads.
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Mabindla-Boqwana said “no plausible explanation” was provided as to why Sabisa and Mambila were only booked at the Mthatha police station just before midnight, despite having been arrested around 3pm.
This was supported by the entries in the police’s occurrence book.
The judge also noted that the councillors informed their attorneys at the first available opportunity that they had been assaulted and were injured.
“The occurrence book reflects that at 10:30am and 11am on 19 April 2016, the respondents’ attorneys consulted their clients and requested that the police accompany the respondents to hospital as they were complaining of body pains.
“Mr Mambila testified that he had to use a walking stick to go to the vehicle. The respondents were taken to a doctor who recommended that they be taken to hospital.”
Mabindla-Boqwana also found that Cele failed to show that the pair’s arrest was lawful.
“Counsel for the minister submitted that it is sufficient that a warrant was obtained, even if not in the possession of the arrestor at the time of the arrest.
“Such a reading of the provision is untenable and goes against the primary object of the section. The existence of a warrant ‘somewhere’ does not (by itself) make the execution of the arrest lawful.”
She ruled that the two men were unlawfully detained.
“The detention in Butterworth after the arrest was, consequently, unlawful and not in compliance with the requirements of section 50(1)(a) of the Criminal Procedure Act.”
The judge further found, that Sabisa and Mambila were not brought to court within 48 hours after their arrest as required by law.
“Neither of the respondents was brought before a lower court to appear, nor was authorisation sought on 20 April 2016 or thereafter for their detention in hospital.
“The minister pleaded that the respondents were detained in hospital on judicial authority. There is, however, no evidence of any court order.”
According to the judgment, the pair were only appeared in the Tsolo Magistrate’s Court on 19 May 2016.
But the case was saw several postponements before charges against Sabisa and Mambila were withdrawn in October 2016 and February 2017 respectively.
Mabindla-Boqwana, therefore, dismissed Cele’s appeal with costs.
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