State Forks Out In Unlawful Arrest, Detention

Mpho Mokwape | Monday February 15, 2016 16:01

 

He also sued for further ancillary relief for unlawful search of his home, malicious prosecution and legal fees sought. He was, however, awarded damages of about P60,000 in 2013, of which the state refused to pay the full amount on contention that it was too excessive considering the days he was detained.

However, the Court of Appeal Justice John Foxcroft recently dismissed the state’s appeal saying it was by no means excessive when the additional period of unlawful detention was taken into consideration. He said the amount was reasonable considering that the victim was exposed to hardened criminals in cramped and hostile conditions in a maximum-security prison for a long time.

“The detention was unlawful in the sense that a tip off did not constitute a reasonable ground for arrest or detention, especially that the search for incriminating items referred to by the prosecutor at the remand hearing yielded any evidence to buttress the suspicion of the commission of any offence,” he said Foxcroft also said the discovery that the respondent’s residence papers have expired and that he was therefore an illegal immigrant seems not to have played a part in his remand. He maintained that the remand was simply a rubber-stamping of the prosecutor’s request for a remand and did not involve any proper judicial consideration. “An unlawful arrest and detention could not in these circumstances and on these particular facts have been transformed into a lawful detention,” he said.

On further remand of the accused despite no concrete evidence, Foxcroft said it was not justifiable and not lawful just because a presiding magistrate issued it. “There was no warrant of arrest and none for the search of the respondent’s house in the present matter. The authority was not directly relevant,” he said.