In a stinging judgment, Judge Mahendra Chetty lambasted the investigating officer

An acting deputy principal, unlawfully detained for a year, after being falsely accused of raping a nine-year-old girl, has won his legal battle for compensation.

The Pietermaritzburg High Court recently ruled that the Ministers of Justice and Police were liable for the damages which Patrick Buthelezi (the plaintiff) suffered. The only issue to be determined is the quantum (amount) which Buthelezi is entitled to.

Buthelezi, formerly a deputy principal at Isidingo Primary School in uMlazi, moved to a school in Amanzimtoti and initiated a multi million rand lawsuit against the state, for being unlawfully incarcerated from 22 November 2011 to 14 December 2012. He was freed from prison after the state’s case against him collapsed.

In a stinging judgment, Judge Mahendra Chetty, lambasted the investigating officer, a Warrant Officer Mathengela for withholding vital evidence from the trial court, which resulted in the plaintiff being refused bail. Said Judge Chetty: “The investigating officer, a key witness for the defendants, did not make a good impression. He tendered to be evasive and was non-committal about answers put by the plaintiff’s counsel. Mathengela sought to avoid or deflect responsibility for matters falling within his knowledge and authority. In my view, he withheld evidence which would have been crucial for the court hearing the bail application to assess the strength of the state’s case. His explanations for these omissions, in light of his public law duty, is unconvincing.”

Judge Chetty added that the court was of the view that Mathengela had opposed bail, because of public sentiment over the serious nature of the allegations. “The plaintiff was sacrificed to satisfy the need for an early arrest (and to) keep him behind bars in the light of the paucity of the evidence against him,” said Judge Chetty.

The court remarked that the investigating officer had rested on the version of the complainant, which was uncorroborated. “The plaintiff was arrested on 21 November, 2011 after presenting himself at the Bhekithemba Police Station, after being told by the principal that police were looking for him. He applied for bail on 29 November, 2011. On 12 December, 2011, the magistrate refused bail, on the grounds that the plaintiff failed to meet the threshold of showing that exceptional circumstances existed for bail to be granted.

“Following the refusal of bail, the plaintiff remained incarcerated until the conclusion of his criminal trial on 14 December 2012, when he was acquitted of the charges against him,” said Judge Chetty. Judge Chetty said in the lawsuit, the plaintiff had contended that
Mathengela, failed to bring to the attention of the court certain “unsatisfactory features”.

“It emerged that the first report made by the complainant, was preceded by a beating from her guardians. The court heard that only thereafter, and after being prompted by her aunt, did the complainant implicate the plaintiff as the person who had allegedly raped her. Another crucial point is that a teacher, a Ms Mkhize, whom the complainant alleged had witnessed the incident (or part thereof) in the classroom, had deposed to a statement indicating that she saw no such thing. Despite the exculpatory nature of the statement, its contents were not placed before the court at the bail application. The plaintiff alleged that police failed to investigate the matter properly and that with the prosecutor, failed in their public law duty to disclose evidence in their possession at the bail hearing. According to the plaintiff, the trial court was misled,” said Judge Chetty.

The court said Mathengela had also placed emphasis on the J88 (form completed by a doctor), and had disputed that the findings were ‘neutral’. “It was not certain at the bail hearing what had become of the DNA analysis following a blood sample taken from the plaintiff. It later emerged that the analysis was inconclusive as no traces of the plaintiff’s DNA could be found on the child’s clothing,” said Judge Chetty.

According to the judgment, the defendants (police and the prosecution) denied that had neglected their duties. “The drafters of the defendants plea, appeared to have misinterpreted the plaintiff’s case (that the defendants employees had a duty to disclose information in their possession to the court).

“The defendants’ further contended that in light of the serious allegation against the plaintiff, the investigating officer was obliged to arrest him. They said it is not Mathengela’s duty to decide on the innocence or guilt of the plaintiff,” said Judge Chetty.
He added that while the medical report stated the girl had sustained injuries consistent with sexual penetration, it is the duty of police to do their job properly.

“It was argued by the plaintiff’s counsel that there was some doubt that the sexual assault happened on the date when the child said it was committed. The magistrate ought to have taken that lack of certainty into account,” said Judge Chetty.