A POLICE officer arrests a grandmother for fraud. But the charges are trumped up to help his pal with a paternity dispute. The woman sues for wrongful arrest and malicious prosecution and the court awards her R75 000 in damages.

By his actions the police officer – referred to in the judgment only as Inspector Ngcikiza – has effectively committed fraud himself with his maliciously motivated arrest and prosecution. Surely he should pay?

But to the extent that one is able to decipher the judgment by the high court in Mthatha – more of that later – it seems Ngcikiza gets off completely. Instead the minister of safety and security is apparently ordered to pay the damages, with no consequences for Ngcikiza at all.

There are two disturbing aspects to this matter, the judgment itself as well as the story it reveals.

The woman persecuted by Ngcikiza, Thobeka Mphaleni, receives disability grants from the department of social welfare via Sassa, for two children. One is asthmatic and the other blind in one eye.

She is in dispute with the man she says is the father of one of her children, who is also a colleague of Ngcikiza. The alleged father disputes paternity and there is a long-standing argument between them. For one thing, she wanted the DNA tests done in East London because she was suspicious about the circumstances under which the tests were done in Mthatha.

In order to help his friend in this dispute against Mphaleni, Ngcikiza decided to arrest her saying she had committed ‘fraud’ against Sassa in 1999. Having convinced a prosecutor that he had a case against the woman, Ngcikiza took the prosecutor along to ask a regional magistrate for an arrest warrant.

Though the warrant was issued on a weekday early in July 2006, Ngcikiza waited until the following Sunday evening to pick her up so that she had to stay in jail overnight, only being released on bail the following day. Once she had paid the R1 000 bail Ngcikiza set the law in motion against her so that she would be prosecuted for fraud. She appeared in court several times before the criminal charges against her were withdrawn as it emerged there was no case.

The extent of Ngcikiza’s malicious conduct became clear when Mphaleni brought a damages claim in the wake of her arrest and prosecution: Sassa had made no complaint against Mphaleni and had no quarrel with her. Yet the police officer justified his request for a warrant against her as well as the subsequent charges and court appearances on the grounds that she had defrauded Sassa.

Faced with this information the magistrate who approved the warrant said she would never have given the go-ahead for action against Mphaleni if she’d known there was no evidence, and that Sassa had made no complaint against her.

Judge Fathima Dawood said it appeared the arresting officer ‘abused his power and position’ and that he had done so ‘presumably to avenge a wrong or perceived wrong to his colleague and not for any lawful purpose’. He had ‘acted with malice’, apparently motivated ‘by seeking retribution for his colleague’.

The judge clearly knows that Ngcikiza has acted unlawfully yet she’s done nothing to deal with it, not even referring the matter for investigation. It’s as though malicious arrest and prosecution is a perfectly normal occurrence and one that requires no response on her part.

There’s also the problem that the judgment – it took five months to put together and is marked ‘Not Reportable’ so it’s likely to escape scrutiny – is a real mishmash.

Let’s leave aside the legal technicalities that have been confused by the court and look at the most basic facts of the case.

The very first page lists only one defendant, the minister of safety and security, yet it’s clear there were at least two other defendants: in the last paragraph of the judgment the court dismisses Mphaleni’s action ‘against the second and third defendant’. We don’t know who the other two are, and against whom the R75 000 damages award is actually made – is it the policeman or the minister, or is the minister being ordered to pay on behalf of the policeman?

Moreover, who pays the costs? The judge dismissed Mphaleni’s action against the mysterious second and third defendants ‘with costs’ and yet ordered the first defendant to pay ‘costs of suit’.

If this were a student exercise the work would be returned for major revision.

Mphaleni v Min Safety and Security