Monday, June 5, 2023

Man wins lawsuit against gov’t for malicious prosecution

Francistown High Court judge, Justice Gaolapelwe Ketlogetswe last week ordered government to pay Teseletso Modumo P200 000 in damages for unlawful detention and malicious prosecution. Through his attorney Mishingo Jeremia, Modumo was suing the state for unlawful detention and malicious prosecution, arguing that his prosecution was not informed by any reasonable and probable cause and therefore malicious. He added that as a result of his prosecution, he suffered damages in the sum of P400 000 for which he held the state liable. Modumo’s lawyer argued that his client was deprived of liberty for a period of 16 months during detention in prison while awaiting trial, an act that was in violation of his constitutional rights.

According to court documents, Modumo was arrested in October 2009 and charged for arson and the murder of Tshunyane Keitshokile, his grandmother, at Mabesekwa settlement in the Central District.
It was alleged that he had murdered the deceased by setting her hut alight while she was inside. She subsequently died from the fire. Evidence submitted by the prosecution at the time indicated that Modumo was arrested after he had displayed strange behavior by not helping put out to douse the fire and rescue the deceased. He was detained for 16 months in prison while awaiting trial for murder and arson, but was later discharged and acquitted by the Francistown High Court in October 2012 after the state failed to establish a case against him.

In defense of the state attorney Wedu Mapahne said Modumo’s prosecution was not malicious as there was reasonable and probable cause to prosecute him on the basis that there was circumstantial evidence justifying his prosecution.

“The plaintiff was prosecuted on the basis that he had behaved strangely when his grandmother was burning in a fire suspected to have been caused by him,” she said.

Pronouncing judgment last week, Justice Ketlogetswe said the claim that Modumo was arrested for behaving strangely and failing to assist the deceased in the burning house was not reasonable. He added that the state was liable for the damages as it had failed to provide any prima facie evidence that the plaintiff committed the offence for which he was prosecuted.

“In my view the action of the prosecuting counsel in this matter, in concluding that the inaction of the plaintiff when the hut was burning, or his strange behavior as it has been referred to in this case, was the basis of his prosecution established that the state is liable to the plaintiff for damages, as there was no prima facie evidence he had committed the offence for which he was prosecuted,” he said.

Justice Ketlogetswe further said Modumo will have to deal with the agony of being stigmatized as a killer since he was prosecuted and spent 16 months in prison. He said, as per prosecution evidence, his relatives suspected that he was a killer due to his indifferent attitude in the face of a tragic incident where his grandmother was burning in a hut which was on fire.

“Their suspicions were no doubt heightened and firmed up when police arrested him and he was prosecuted. In the light of such actions by those charged with the responsibility of arresting and prosecuting alleged criminals, the ordinary folk will live in the belief that the person prosecuted is indeed guilty of the offending act. This is a stigma he will have to live with. The plaintiff also had to deal with a situation where he was facing a serious charge that attracts capital punishment,” said Justice Ketlogetswe.

He however said that the plaintiff did not satisfactorily explain how he earned a living prior to his arrest and detention for 16 months pending trial as he gave contradicting evidence. The Judge explained that every case has to be decided, for purposes of awarding damages, on its peculiar circumstances. In this case, he said, Modumo was deprived his liberty over a long period of time while awaiting trial.

“It has to be noted that the award of damages is not punishment for the actions of the defendant, but rather a recognition that the plaintiff has to be compensated for the harm he has suffered. Deprivation of liberty associated with the stigma of a criminal charge will always be difficult to measure in monetary terms,” he said.

In conclusion Justice Ketlogetswe awarded Modumo P200 000 with interest at the rate of 10% per annum. The state was also ordered to pay the amount within 90 days from the day of the ruling. The defendant was also ordered to pay the costs of the suit.


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