A JUDGE was at odds with why a police investigator chose to ignore the information shared by a father that it was not possible for his son to commit rape because he was previously kidnapped and emasculated.
Instead the man had to endure nearly months of jail charged due to the sex offence charge and the “malicious prosecution” he was subjected to.
His wrongful arrest and detention was challenged at the Pietermaritzburg High Court and it ended with the police minister being ordered to pay the man R800 000 in damages.
This after he was arrested on a charge of raping a neighbour’s child, yet the man had no penis as this was severed years ago when he was 12 years old.
The man, who was not identified to protect his dignity, turned to the KwaZulu Natal High Court, sitting in Pietermaritzburg, where he claimed damages for his unlawful arrest and detention.
He had to spend 54 days in a filthy cell before the national prosecuting authority withdrew the charges against him.
The court turned his claim for malicious prosecution down against the NPA, as it reasoned that the charge was withdrawn against him before the prosecution proceeded.
The 26-year-old man, however, had to remain in jail even though the investigating officer was told by his father that he had no genitals.
The investigating officer kept mum about this for a long time. The claimant told the court that on March 26, 2020 he was unlawfully arrested by the Ezakheni police at his home in Ladysmith, KZN on a charge of rape.
He appeared in court four days later and was denied bail. After he was at first kept at the local police station’s holding cells, he was transferred to Ladysmith Correctional Centre until he was released on May 18, 2020, when the charge was withdrawn against him.
The police meanwhile noted that it was defending the damages claim and they simply offered a bare denial to the facts, apart from the fact that he had been arrested. When the matter went to trial, the SAPS did not pitch at court to present their case.
The claimant meanwhile told the court that after his arrest he was kept in a tiny cell at the police station with a toilet which did not flush, as there was no water.
He also said the cell got so crowded that he had to sleep on a blanket on the floor.
It also emerged that although he was accused of rape, which he had denied, he did not tell the SAPS at the time that he could not do it as he did not have genitals.
During his first appearance in court his father came to court and told the investigating officer that his son had been kidnapped in Soweto in 2013 and his genitals had been emasculated.
The investigating officer, however, did not investigate the father’s version, nor did she inform the prosecution about it. She simply kept mum and it was only after spending nearly two months in jail, that a doctor eventually examined him and confirmed that he had no genitals.
After it was confirmed that he could not have committed the offence and the prosecution was told about it, the charge was withdrawn.
In assessing the amount of damages which should be awarded, the court said not much evidence was placed before it about the filthy conditions in the holding cell.
But the court noted that it is not in dispute that South African prisons are severely overcrowded causing inhumane conditions for the prisoners.
The court also criticized the investigating officer's careless neglect to confirm the information that the man was incapable of committing the offence and to inform the prosecution about it.
This led to his unlawful detention, the court said. The court accepted that he did not commit the rape and noted that he never even received an apology from the police, nor an explanation as to why he was arrested. Instead, the police did not even bother to pitch at court to explain themselves, the court said.
zelda.venter@inl.co.za
DAILY NEWS