Cele must pay R90,000 for wrongful arrest of Steers employee

Police minister Bheki Cele has been ordered to pay R90,000 in damages to an East London man who was wrongfully arrested.

Mihlali Mabele had approached the East London High Court asking for R500,000 in damages for wrongful and unlawful arrest and detention.

Mabele was arrested at his workplace, a Steers restaurant in Nahoon, East London, on April 24 2018 alongside seven other employees, in connection with the alleged theft of about R190,000 from the restaurant.

He remained in detention until April 26, and later returned to work, along with another member of the restaurant’s kitchen staff.

In court papers, Mabele argued that his arrest was wrongful and unlawful because he never committed the fraud or theft for which he was charged.

He said the arresting officer had no reasonable or justifiable suspicion that he had committed the offence and he was never informed of the reason for his arrest, or his constitutional rights.

He also said the officer had failed to exercise his discretion in making the arrest.

Consequently, he argued that his constitutional rights were infringed.

Mabele also alleged he was released without appearing before a magistrate.

During proceedings, the minister argued that Mabele’s arrest and detention were justified.

He denied that the arresting officer failed to exercise his discretion, saying the plaintiff was arrested for questioning and later brought before a court.

In his judgment, judge Justin Laing found that Mabele was a credible witness.

“He experienced the incident first-hand and there was little to detract from the quality, integrity and independence of his recollection of events.”

Laing said the arresting officer, a Sergeant Tuswa, though a reliable witness, was evasive at times.

“Sergeant Tuswa refused to make obvious concessions, for example the improbability that he had been able to accomplish all that he said he had done within the limited time from when he and his colleague first responded to the complaint until when he arrived with the suspects at the Cambridge police station.

“His testimony was also not free of contradictions,” he said.

“He initially testified that he used the video footage as the basis upon which to arrest the plaintiff but later admitted that he did not specifically identify [Mabele] therein.

“It subsequently emerged that he relied on Mr Marshall’s [the restaurant’s financial manager] say-so.

“He could also not explain why he did not mention in his statement that he had relied upon the video footage.

“It is entirely improbable that there was anything in the video footage to have constituted a reasonable ground, even if Sergeant Tuswa had the time within which to have watched it properly, which seems most unlikely; there was, objectively, no acceptable reason for the arrest of the plaintiff.

“Even if there had been reasonable grounds for Sergeant Tuswa’s suspicion, the question arises whether he correctly exercised his discretion in arresting the plaintiff.

“Sergeant Tuswa failed to investigate the plaintiff’s circumstances, including his address and the nature of his employment, which was permanent.

“It is probable that, faced with Mr Marshall’s allegations and his identification and isolation of the suspects as a fait accompli, the concessions made by some of them that they had been in the wrong ... the officer succumbed to pressure and indiscriminately placed them all under arrest.

“As counsel for the plaintiff vividly argued, Sergeant Tuswa scooped everyone into the same net.”

The judge said there was no indication that Mabele would not co-operate with the authorities and stand trial and it could not be said that Tuswa’s decision to arrest him was rational and the detention was lawful.

“Mindful of the circumstances, the court is satisfied that the plaintiff’s claim must be reduced to a considerably more realistic figure.

“An award of R90,000 would seem to be appropriate and in alignment with the case law.”

Laing also ordered that the minister pay 80% of Mabele’s costs.

Cele’s spokesperson, Lirandzu Themba, said on Tuesday they would comment after receiving a copy of the judgment.

Mabele declined to comment.

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