. . . awards huge M250 000 pay-out to victim of police brutality
Mohalenyane Phakela
POLICE Commissioner Holomo Molibeli’s repeated failure to rein in rogue police officers accused of brutality against civilians has come back to bite the police force in a big way.
This after the Court of Appeal awarded a massive M250 000 damages claim to a Mafeteng man, Tšolo Tjela, who was tortured and humiliated by police officers in 2015.
The apex court had no kinds words for the police who it slammed for “turning the country into a lawless state” through the torture of suspects.
Mr Tjela had initially been awarded a whooping M400 090 by Chief Justice Sakoane Sakoane who heard his application against the police last November.
The award had been broken down as follows: M90 for medical expenses, M300 000 for pain, shock and suffering and M100 000 for contumelia.
“There will be interest at the rate of 12 percent per annum calculated from the date of issue of summons,” Justice Sakoane had ordered.
Besides awarding M400 090 damages- the biggest single award to a torture victim in recent years- Justice Sakoane also lambasted former Prime Minister Thomas Thabane for his reckless utterances while in office inciting police to torture civilians and engage in other gross human rights violations.
In the most damning indictment of a sitting prime minister, Justice Sakoane said through his reckless utterances, Mr Thabane had incited the police and other security agencies to subject civilians to “state-sponsored violence” in violation of constitutional provisions guaranteeing their freedom from cruel, degrading and inhuman treatment.
Dissatisfied with Justice Sakoane’s judgement, the police subsequently appealed to the Court of Appeal to reduce the award. The appeal was heard during the court’s session which began on 12 April 2021 and ended last Friday. It was heard by Justices Petrus Damaseb (Namibia), Phillip Musonda (Zambia) and Johann Van Der Westhuizen (South Africa).
In its judgement which was written by Justice Damaseb and made available this week, the apex court ruled that Mr Tjela should be paid a “global figure of M250 000 for pain, shock and suffering, contumelia and medical expenses”. It also ruled that Mr Tjela was entitled to an interest of 12 percent on the award per annum from the time of issuance of summons in 2016.
Although the apex court granted the police’s application and reduced the award from M400 090 to M250 000, it echoed Justice Sakoane’s observation that the police force had become very oppressive.
“The court entirely agrees with the views expressed by His Lordship (Justice Sakoane).
“The police fragrantly violated the dignity of the respondent, more so in a traditional setting, to whip an elderly man like a child in full view of men, women and children…
“The judiciary should send a strong message of censure of police brutality. A lawless state is a menace to the enjoyment of civil liberties and constitutional democracy,” the Court of Appeal ruled.
In granting the initial M400 090 award last November, Justice Sakoane had spewed his venom on Thabane who he lambasted for incendiary remarks which facilitated “state-sponsored violence” against Mr Tjela and other ordinary civilians.
On several occasions during his two stints as premier (first from 2012 to 2015 and again from 2017 to 2020), Mr Thabane made public statements which were seen as giving the police a blank cheque to torture suspects.
In one such statement in parliament in April 2019, Mr Thabane said, “in my time as a Minister of Police, I told the Commissioner of Police and other officers to look around and see if there are people watching them and if not, they should beat up suspects.
“I told them that while in the full view of the people, they should be friendly to suspects, walk around with them and chat with them. I told them that when they were at a bar, they should also give the suspects alcohol so that people can see that they are being nice to the suspects but as soon as they are away from the prying eyes, they remind them what they have done”.
Justice Sakoane referenced this particular statement in his judgement, saying such utterances had opened the floodgates of police brutality and impunity against citizens like Mr Tjela.
“Despite what the constitution commands in uncompromising language in section 8 that there shall be no torture, inhuman or degrading treatment, the police service continues to brutalise citizens because it is cursed by words of a Prime Minister (Mr Thabane) who, to paraphrase him, says to them, ‘beat them hard but not in public view. When you emerge in public view, smile with them don’t beat them,” Justice Sakoane said.
“It is utterances like these by the head of the executive which help let loose police officers on this defenceless nation all in the name of crime prevention. This case is a living example of the bitter results of a lethal toxic cocktail of unprincipled, populist, demagogic and whistle-dog politics of crime control through state-sponsored violence.
“It matters not how popular a ruler or politician is or how powerful the military arsenal and awesome police power under the ruler’s command. The constitution is the boss,” Justice Sakoane added.
A week before Justice Sakoane’s verdict, the Court of Appeal had also awarded M100 000 damages to prominent taxi operator, Mokete Jonas, who alleged that he had been unlawfully arrested and detained by police officers.
He was arrested and detained on 17 August 2011 for unspecified reasons. He was released the following day and he later sued the police for M1 million as compensation for unlawful arrest and detention.
On 4 June 2019, the now retired High Court Judge Semapo Peete ordered that Mr Jonas be paid M60 000. Not satisfied with the order, Mr Jonas approached the Court of Appeal on 16 July 2019 for an upward review of the damages.
He was subsequently awarded M100 000 by the apex court on 30 October 2020.
In awarding the damages, the apex court also spoke strongly against police brutality saying it was a violation of human rights.
Delivering the verdict on that day, Justice Musonda said, “a message of censure must be sent to men in uniform (police) that the courts will not condone unjustified arrests and detentions of citizens”.
“When the police service becomes an instrument of oppression, the rule of law and civil liberties are in peril.
“The judiciary remains the only hope to enforce human rights. The judiciary should send a strong message of censure of police brutality. This court has taken into account the conduct of the police.
“A global figure of M100 000 for unlawful arrest and detention and injuria is awarded (to Mr Jonas),” Justice Musonda ordered.
There are high chances that the police and the state could pay even bigger compensation amounts for ignoring several warnings by the opposition, local civic organisations as well as the African Union (AU), SADC, European Union (EU) and the United States to urgently deal with the scourge of police brutality. This because there are several other pending lawsuits that have been filed in the courts by victims of police brutality
