A Francistown High Court Judge, Barnabas Nyamadzabo has awarded P40 000 as money for damages to Gracious Mada Leano, a former SOS Children’s Home employee after she was unlawfully arrested and detained for a charge of theft by Kutlwano police in Francistown in 2012. Leano had initially demanded P120 000 as compensation for damages. The damages include suffering humiliation, degradation as well as loss of source of income.
Leano who worked as a caretaker at SOS had been charged by the police for allegedly stealing a cellphone belonging to a colleague (Lydia Mhlalu) at SOS by instigating a minor child to steal the phone on her behalf on the 12 of February 2012.
Commissioner of Police, Keabetswe Makgophe was the defendant in the matter and was represented by W. Maphane from the Attorney General while the plaintiff was represented by Malike Mmohe of Mmohe Attorneys.
In her evidence before court, the plaintiff said that on the 10th of February 2012 a child stole a cell phone and swapped it at SOS. She said on the morning of 12th February 2012 around 11: 00 am when she arrived from clinic where she had taken her sick child she found the police with SOS management who informed her she was being taken to the police station. On arrival at the police station she was detained in the police cells from around 12:30 pm until the following morning when she was taken out of the cells and subsequently taken to Phase V1 customary court.
The plaintiff said that she then left the customary court in the afternoon at around 1:00 pm for SOS after she was told that her case would come for trial on the 28th of February 2012. On arrival at SOS she was suspended and told to await the outcome of her case with the police. However on the 14th of March 2012, the complainant matter indicated that she no longer wanted to proceed with the matter, resulting in the collapse of the case.
The plaintiff was accordingly acquitted and discharged.
According to the plaintiff, despite the outcome of the case she received a letter dated 5th April 2012 from the Director of SOS (her employer) in Francistown to the effect that she was being dismissed from her employment.
Narrating her ordeal before court, the plaintiff said that she suffered in that the job as SOS caretaker was the only thing she knew and was comfortable with. She also said it was difficult for her to get another job as SOS did not give her any reference after sacking her.
Giving his verdict, Justice Nyamadzabo took issue with the fact that two of important witnesses, one Gaone Mokhurutshe and one Police Seargent Nzwaligwa in the case were never called to by the prosecution to corroborate the complainant’s evidence. He said that failure to bring the two state witnesses calls into question whether there were justifiable grounds to arrest and detain the plaintiff.
“The fact that the state’s criminal case eventually collapsed even before trial may be due to its weak nature from the beginning. It has been a settled position of our law that if a person has or is alleged to have committed a crime, any person who has knowledge of the facts is entitled to instigate the prosecution of the offender without incurring any liability,” the judge said.
Justice Nyamadzabo further took issue with the fact that, Mokhurutshe who was a friend to the plaintiff was also a suspect in the matter as per evidence in court but said it is not clear why the police had to believe Mokhurutshe’s version over the plaintiff.
“Where such justifications are absent as in an instant case, it would not be unreasonable to conclude that the plaintiff’s arrest, detention and subsequent prosecution was actuated by malice not only of the arresting and investigating officer, but also of the Director of SOS Francistown,” said Justice Nyamadzabo.
As for the damages, he said the court considers a whole spectrum of factors, the unlawfulness of the arrest, detention and subsequent prosecution of the plaintiff, the postponements of trial and attendant inconvenience to the plaintiff both financial and otherwise.
“The defendant not having sufficiently controverted the conditions under which the plaintiff was detained on her evidence that point is accepted as reasonably possibly true. The result is that the court finds reasonable quantum as the sum of P20 000 under both categories totaling the amount of P40 000 which is granted as judgment to the plaintiff. It is ordered that the plaintiff be granted judgement in the sum of P40 000 plus costs and interest,” he said in conclusion.