Transport marshal wins against govt
MBABANE – The gods have smiled upon a public transport marshal who sued government for E9.1 million for unlawful arrest and detention.
Zwelithini Bheki Dlamini’s claim for unlawful arrest and detention and malicious prosecution for rape and attempted murder succeeded before Judge Doris Tshabalala.
He demanded a sum of E9 164 000, which included claims for loss of earnings, emotional trauma and shock and impairment of dignity, among others.
Judge Tshabalala has given the parties an opportunity to negotiate and reach an agreement on the quantum of damages within 30 days from last Friday.
Arrested
Dlamini was arrested on July 16, 2015 and remained in detention for a period of 27 months. He said he was approached by police officers at his workstation in Matsapha and they arrested him. He told the court that the police informed him that he was being arrested for housebreaking and theft of two cellphones.
Dlamini informed the court that the police demanded that he produce the green jacket and pair of jeans he was wearing on the day of the offence. He denied the offence and told the police that he did not own the clothing items they wanted him to produce.
He said he was detained at Matsapha Police Station where he was informed that he was not being arrested for theft of cellphones, but for two counts of rape of two women and attempted murder.
He denied these offences. According to Dlamini, one police officer, Busha, assaulted him. He said the police took him home to collect his medication and they seized his grey jacket and a tracksuit. He submitted that at the police station, he was interrogated, slapped and locked up for not cooperating.
He further informed the court that he was coerced into signing a statement that had been recorded without his input. He was accused of raping two 12-year-old minors at Bethany and Eteni on March 17, 2015. In the third count, he was accused of attempted murder, in that he was said to have strangled one of the complainants and stabbed her with a sharp object.
Judge Tshabalala said the national commissioner of police bore the burden to show that nothing short of a reasonable suspicion existed leading to
Dlamini’s arrest.
The investigating officer was Constable Nokuthula Mdziniso, who said she interviewed one of the complainants, *Sindi. She said on the first day, Sindi did not give a description of her assailant. On the second day, according to Mdziniso, Sindi came to the police station in the company of her mother and presented a photograph of her assailant and revealed that she and her friends had previously seen him near the traffic lights next to the Eswatini Water Services Corporation Treatment Plant not too far from Usushwana River, where they swam after school.
Assailant
Sindi, according to Mdziniso, said the man in the picture was her assailant. The investigator said she attached the photograph to the docket but it later went missing. The picture had been taken by a friend of the mother of the complainant. Mdziniso is said to have used the picture to identify the accused and arrested him.
“This was nothing short of careless use of police power of arrest. To compound matters, the photograph is not an exhibit before this court to assist in the assessment exercise to determine the reasonableness and rationality of the suspicion entertained by the defendant when arresting the plaintiff (Dlamini),” said the judge.
Mdziniso testified that, armed with the photograph, she went to the place where the assailant was said by Sindi to usually hang out. She said Dlamini resembled the man they wanted in terms of complexion, physique and a missing tooth in the lower jaw. Dlamini disputed that he was the man in the picture.
Mdziniso said she was convinced that he was the suspect they were looking for and arrested him. According to the court, Mdziniso changed her story and said they did not rely on the photograph to arrest Dlamini.
“This was clearly a fabrication and material deviation from her evidence-in-chief where she stated that she relied on the photograph,” said the judge.
Judge Tshabalala said the decision to arrest Dlamini was found to have been based on irrational grounds short of the required reasonable standard envisaged by the Criminal Procedure and Evidence Act of 1938. Following the arrest, Dlamini’s case was handed over to the Director of Public Prosecutions (DPP) for prosecution and he appeared before a magistrate.
The judge said the DPP should have appraised the evidence and should have realised the deficiencies. Charges against Dlamini were withdrawn in September 2017 and he was released from custody.
The Crown argued that only an acquittal should be considered for a claim for malicious prosecution, not a withdrawal of the charges.
Judge Tshabalala said there was no doubt the evidence of the Crown was wanting in many respects. She said Dlamini was arbitrarily picked as the suspect.