Cop loses malicious prosecution suit
Mpho Mokwape | Friday June 5, 2020 16:48
Lungisisani Masubi who has held a rank of Sub-Inspector since 2015 was charged with stocktheft while stationed at Dukwi Police Station in 2017.
According to his court documents, Masubi was making two claims, one arising from the alleged unlawful arrest and detention for two days at Dukwi police station and for that he was demanding P350,000.
The second claim was said to be the result of an alleged malicious prosecution after criminal proceedings were instituted against him before the Nata Magistrate’s Court.
He was facing a charge of stocktheft alongside his wife and two other individuals.
The officer in his defence said there was no reasonable basis upon which he should have been charged with the offence of stocktheft as he had neither stolen any stock, nor was there any evidence showing any stock.
However on Tuesday, the Francistown High Court dismissed the application with costs saying the officer had failed to avail evidence that proved on balance of probabilities that his arrest and detention were unlawful and that there was ever any prosecution that was instigated against him.
Judge Matlhogonolo Phuthego said the plaintiff did not put anything before the court that indicated that prosecution ever commenced against him and that the evidence that was led before court was that he attended mentions before the magistrate’s court investigation was still ongoing.
“The case was withdrawn by the State before the plaintiff was arraigned as investigations had hit a brick wall. On that basis, it cannot be said that the plaintiff was prosecuted,” he said.
The judge said it was normal for the police to arrest someone if suspicion wais established and that information that was presented before court indicated that some cattle were found kraaled at some yard in Dukwi where they were branded and made to bear the plaintiff’s earmark.
He explained that the cattle were then registered for sale to the plaintiff at the kgotla and that upon being questioned, he confirmed that the two female cattle were bought from one Dingongorego, not by him but by his wife who was also arrested.
The judge pointed out that the fact that the plaintiff and his wife admitted that the cattle had been bought from the person who was suspected to be in a criminal syndicate of stolen cattle, which bore no earmarks and brand marks amounted to reasonable suspicion that they might somehow have been involved in the stealing of the cattle.
“Any investigating officer worth his or her salt would have detained the plaintiff pending further investigation, to prohibit him from possible destruction or hiding of the exhibits, or from somehow obstructing the police making further inquiries into his suspected criminal activities, especially in that the whereabouts of the exhibits were unknown,” he said.
He added the officer who detained the plaintiff pending further investigation acted reasonably and that the arrest and detention was lawful.
On malicious prosecution, the judge said the plaintiff failed to prove the claim, especially that evidence before court showed that the case was withdrawn.
Meanwhile, the cop was claiming that as a result of the alleged malicious prosecution he had suffered general damages in the sum of P500,000 and special damages being legal fees in the sum of P120,000.
He was demanding, amongst other things, interest on the alleged unlawful arrest and detention, general and special damages at the rate of 10% per annum from the date of judgement to the date of final payment, effected within 30 days from date of judgement.
In their plea, the police had said they had reasonably suspected that the plaintiff had committed the offence of stealing stock and contended that the plaintiff did not suffer any damages.
The police denied any liability in the amount claimed nor any other and denied that the plaintiff was unlawfully and maliciously prosecuted for the reason that they acted in accordance with the law.