The fight for freedom: Wonder Nkambule's journey from injustice to compensation
Image: File
The tragic tale of a man who served nearly eight years in jail for a crime he did not commit, and when he was eventually cleared on appeal sat in jail for a further 77 days as the departments of Justice and Correctional Services did not get around to order his release, unfolded in court.
Wonder Nkambule eventually received some justice after the Mpumalanga High Court, sitting in Mbombela, ordered the department to pay him R750,000 in damages. Nkambule had been sentenced to life imprisonment in November 2013. The judgment and sentence were subsequently successfully appealed against in December 2021. An order for the immediate release of the plaintiff was given on the same day.
But the order for the liberation of Nkambule was not timeously transmitted to the personnel of Correctional Services, as it should have been. As a result of this failure, he was only released from his detention in March 2022.
The court noted that detention is, in and by itself, unlawful. The onus rests on the detaining officer to justify it. The Constitutional Court on numerous occasions remarked that the Constitution guarantees that everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.
It was argued on behalf of the Department of Correctional Services that the delay in releasing the plaintiff was occasioned by personnel in the Department of Justice. This argument becomes academic when one considers that the departments fall under the same ministry, the court remarked.
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It said a finding that the delay was occasioned by the Department of Justice will render the same minister for Correctional Services liable to compensate the plaintiff. The court, however, found that on the facts before it, the delay was occasioned by the Department of Justice in delaying to timeously remit the warrant of liberation to the Department of Correctional Services.
The court said in its view, this is a matter wherein it has to make a sound estimate of an amount which seems to be fair and reasonable. In doing so, it was considered that Nkambule was detained for 77 days after the Supreme Court of Appeal had cleared all the charges and subsequent life sentence earlier meted out against him.
The court was satisfied that the plaintiff successfully proved, on a balance of probabilities, that his detention was unlawful. He was thus arbitrarily deprived of his freedom and he should be compensated.
In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party, but to offer him or her some much-needed solatium for his or her injured feelings.
'It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted. However, our courts should be astute to ensure that the awards they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law,' the court said.
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