The North West high court has delivered a stinging rebuke to the South African Police Service (SAPS) and the National Prosecuting Authority (NPA), ordering them to pay R350,000 in damages to Tebogo Edward Monchojang for a “malicious” and “groundless” rape prosecution.
The Monchojang judgment is a single drop in a massive ocean of litigation against the police service. According to the SAPS 2024/25 annual report, the financial drain on the state due to police misconduct has reached critical levels.
The report showed that 14,303 new civil claims with a value of over R25bn were registered against the police during that period. The SAPS also paid out R813m for settled claims, the majority of which — R620m — were for unlawful arrests and detentions.
Monchojang was arrested on August 18 2022 after five police officers arrived at his home claiming he had raped a minor.
Despite Monchojang’s immediate denials and a lack of forensic evidence, he was detained in what he described as “dog-like” conditions at Mmabatho police station, where he was forced to clean floors and had his food stolen by other inmates.
On August 22, Monchojang was taken to Mahikeng magistrate’s court where he made his first court appearance and the matter was postponed until August 26 at the instance of members of the NPA while he remained in custody.
He was released on bail of R1,000, but he was further detained until August 27.
The case was postponed on a number of occasions until the charges were officially withdrawn on January 31 2023.
Monchojang stated he did not receive food or water on the day of his arrest and detention. He had requested to be released on warning for court instead of arrest, but that was denied.
Monchojang said his arrest and detention were unlawful as the arresting officers did not take into account his rights to freedom and the right to be brought before a court as soon as reasonably possible but not later than 48 hours after arrest.
He said he was arbitrarily and without good cause deprived of his freedom. He said the arresting officers had no grounds to interfere with his constitutional rights.
Alternatively, the arresting officers had no reasonable grounds to arrest and detain him.
The police and the NPA pleaded that though Monchojang was arrested without a warrant, his arrest and detention were lawful in terms of the Criminal Procedure Act. They stated that the arresting officer was a peace officer as defined in the act.
The reason for withdrawal of the charges was never placed before me. As to why a decision whether to prosecute or decline prosecuting the plaintiff could not be made on 22 August or 26 August 2022 remains a mystery.
— Acting judge JT Maodi
They also denied that the bail money was paid on August 26 2022 but that it was paid on August 27.
They said the detention of Monchojang was lawful in that it followed upon arrest. They said Monchojang was arrested on a reasonable suspicion of the offence of raping a minor child, a schedule 5 offence, and called for his arrest.
The court found that the police and prosecutors acted with “malice”, keeping Monchojang in custody for nine days and dragging the case out for five months before eventually withdrawing all charges because the complainant’s mother refused to let the child testify.
The court also did not agree with the SAPS and the NPA that the detention of Monchojang was lawful in that it followed upon arrest.
“Arrest does not automatically make detention lawful. There should be justifiable grounds for detention, which are among others, that the plaintiff is a flight risk, plaintiff will interfere with witnesses or any other justifiable reason,” acting judge JT Maodi said in his judgment passed on Friday.
He said arrest was not in itself grounds for detention.
Maodi also said the reasons for the detention and postponements beyond August 22 2022 were never placed before the court.
“The reason for withdrawal of the charges was never placed before me. As to why a decision whether to prosecute or decline prosecuting the plaintiff could not be made on 22 August or 26 August 2022 remains a mystery.
“The prosecution was without basis and therefore malicious.”
For Monchojang, the R350,000 award is a partial victory for his lost dignity. He testified that the arrest made him feel like “just a thing” in his community and pushed him to the brink of suicide.
The minister of police and the National Director of Public Prosecutions were ordered to pay the amount jointly and severally, including interest and legal costs.
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