Saturday, April 13, 2024

Woman granted thousands in damages for unlawful arrest, detention

Francistown High Court Judge, Zibani Makhwade, recently awarded  Abigail Mudzingwa, a 19-year-old woman of Tati Siding Village, the sum of P40 000 for damages after she was unlawfully arrested and detained by the police.
Mudzingwa was arrested and detained at the Centre of Illegal Immigrants in Francistown on the 15th of December in 2011 on the basis that she was an illegal immigrant and that her identity card was fraudulently obtained.
She was then released on the 21st of December in 2011 after an urgent application of her release was served by her lawyer, Mishingo Jeremia.

On behalf of her daughter who was a minor, her mother, Violet Mudzingwa then instituted a P100 000 lawsuit against the government for damages suffered by her daughter.
The mother testified during court proceedings that on the 15th of December 2011, while at home in Tati Siding Village, the police came to her residence and asked for identity cards and her daughter produced her identity card. She said that the officers then arrested her daughter on the basis that she was an illegal immigrant and that her identity card had been obtained fraudulently.
“Her identity card was confiscated and she was taken to Kutlwano Police Station in Francistown and then to the Centre for Illegal Immigrants in Gerald Estates location. No interviews were conducted from the time she was taken from Tati Siding up to the time of her release,” the mother told court.
However, the defence has maintained in court that the girl was arrested and detained because sufficient grounds existed to suggest that a crime had been committed as she is an illegal immigrant and further that her identity card was illegally obtained.

The Station Commander at Kutlwano Police Station, who was a witness for the defendant, told court that the girl admitted to the police that she was not a Motswana and that she was a daughter-in-law to Violet Mudzingwa. He said that they had also received information that she was not a Motswana from their sources.

“Violet even told us that the she is not her daughter and we handed her to the Immigration Department for further investigations,” he said.

One of the defendant’s witnesses who is an officer of the Civil and National Registration Department, also told court that on the 15th of December 2011, when she was based at Kutlwano Police Station, there was a stop and search operation in progress.┬á She said that Abigail Mudzingwa was brought to Kutlwano Police Station and when she was interviewed she said she is a Zimbabwean and that she is a daughter in law to Violet Mudzingwa.

However, giving his ruling, Justice Makhwade said that from the evidence led in court, it was important that the action by the officers was to be done in accordance with the Immigration Act, adding that the procedure was not properly followed.

“The Immigration Act provides for the procedure to be followed where there is suspicion that a person is an illegal immigrant and this is provided for in Section 6 of the Act. Subsection 6(2) provides for action to be taken in the case of a person who admits to being an illegal immigrant and the provisions of this act were not properly followed. The evidence by the officers is contradictory because the Immigration officer told court in his evidence that she was told that the girl failed to produce an identity card,” he said.
The Judge further said that he did not find the evidence of the defence witnesses to be reliable. He said that the fact that the witnesses said that the girl had admitted to not being the daughter of Violet was not clearly substantiated in court.

“This was never challenged during cross examination. She was deprived of her liberty and the comfort of her home. It is my view that the sum of P40 000 should be adequate compensation for damages she suffered,” the Judge said.
The plaintiff was represented by Mishingo Jeremia of Jeremia Attorneys and the defendant was represented by Oteng Thamuku of the DPP.


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