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Detained without charge for 158 days

JOHANNESBURG, South Africa – Nkululeko Msongelwa was arrested and detained on August 7, 2011, by members of the SAPS while in a local tavern in Mthatha with friends.

He remained detained for 158 days, until he was released, without being charged with any offence.

The police arrived at the tavern and ordered them to face the wall with their hands up. They were bodily searched and Msongelwa was told that he was under arrest but no reason for his incarceration was given. He resisted and he was shot on the ankle. He was handcuffed and thrown onto the back of a police van. He also sustained a fractured ankle.

From there, he was transported to Mandela Hospital where he was detained under armed police guard and chained to the bed.

Later, he was transferred to Bedford Hospital and again detained under police guard. That is where he spent time. His friends and relatives were allowed to visit him in the presence of the police. He testified that being guarded by two or three armed police men gave the impression to people that he was a “thug”.

He was discharged on August 19 and was taken to Mqanduli police station where he was detained, with an ankle in a plaster cast, in the police cell. He testified that the cell was small, it being 4x4m.

They were made to lie on very thin mattresses. The inmates ill-treated him. He was forced to frog-jump and if he refused, he was struck.

The toilet was blocked and the water over-flowed. He was made to clean the stinking toilet.

Because of the blockage, the toilet had to be covered with a blanket. The food was stamp mealies, which was not properly cooked.

Other inmates were smelly as they were not washing. During the period he was in the cell he was at times taken to the clinic.

At his court appearance on August 23, 2011, he was remanded in custody to Wellington prison. There he was admitted to the prison hospital. Three patients died while he was detained there. He remained there for two months or so. He was thereafter transferred to the general cell.

The cells were clean, but the inmates bullied him. He was made to clean the cell and they would take his things by force. He was at times referred to Bedford hospital under the guard of armed prison warders.

He appeared in court on several occasions and was always remanded in custody. Finally, on January 12, 2012, the case was withdrawn against him.

When he came out of prison, there were many questions about him from some in the community thinking that he was a thug.

Msongelwa went to the Eastern Cape High Court, where he lodged a R6.3 million claim for damages for the assault on him and R5.2 million for unlawful arrest and detention.

The evidence of Msongelwa was not disputed by SAPS. In respect of the first claim on February 7, this year, an order was made following agreement of both the parties, that the SAPS would pay Msongelwa R2.5 million with costs.

SAPS also admitted to the merits of the claim for unlawful arrest and detention. The role of the police in humiliating Msongelwa was severely criticised in court.

“It is clear to me that the conduct of the police in the whole matter was reprehensible,” said Judge J Tokota.

Msongelwa was awarded R5m in compensation.

 

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