Africa-Press – South-Africa. A Gauteng man, who killed a would-be robber in self-defence and was then charged with murder, was unlawfully detained for more than two years.
He was awarded R2.6 million in damages.
Ntokozo Patrick Xulu was arrested in November 2018, charged with murder, and kept in custody for 813 days.
Xulu was a victim of an attempted robbery, but shot and killed his assailant in self-defence.
The Gauteng High Court in Johannesburg found that Xulu’s prosecution was unlawful.
In a scathing judgment last week, Judge Irene de Vos said his detention had destroyed his personal life.
De Vos said Xulu, as a victim, did not receive the protection one would hope for from the police after an attempted robbery. Instead, he was detained as a criminal.
De Vos said:
According to court papers, Xulu had just arrived home from work and was seated in his car when he was attacked by two assailants.
His home is in a notoriously dangerous neighbourhood opposite Berea Park in the Johannesburg CBD.
One assailant opened the door to the back seat, jumped in the car, and threatened him with a knife.
A second attacker, identified as Mr Rodriguez, appeared at his window.
“Mr Xulu opened the car door against Mr Rodriguez in an attempt to push him away. Mr Rodriguez stumbled backwards.
“Mr Rodriguez, undeterred, regained his balance and again approached Mr Xulu’s window.
“Trapped inside the car, Xulu fired two warning shots in the air, seeking to repel his attackers.
“The first assailant fled after the warning shots, but Mr Rodriguez reached for something in the front of his belt, which Mr Xulu presumed to be a gun.
“Mr Xulu, having tried twice to repel his attacker, fired in the direction of Mr Rodriguez. The shots wounded Mr Rodriguez.
“Mr Rodriguez subsequently died from his injuries.
“The investigating officer testified that onlookers told him the shooter had fled the scene in a maroon car. The officer patrolled the area, spotted the maroon car, and spoke to the driver, Mr Xulu.
“Mr Xulu told the officer that he had shot someone and showed the officer the gun. Instead, the officer arrested Mr Xulu.
“Mr Xulu was arrested while he was on his way to tell the police at the Hillbrow police station that he had shot someone in self-defence,” the court papers read.
According to court papers, Xulu claimed that he repeatedly told the police that he had acted in self-defence.
He also said police omitted to inform the prosecution that he was a victim of an attempted robbery and had killed Mr Rodriquez in self-defence.
“However, the prosecution, being kept in the dark by the police as to Mr Xulu’s defence, charged Mr Xulu and persisted in the prosecution.
“Mr Xulu’s version of events was accepted during his murder trial.”
The ballistics report confirmed the bullet’s trajectory was in line with someone sitting down and shooting at someone at a higher angle.
Xulu was acquitted after he had spent more than two years in prison waiting for his day in court.
After being arrested on 11 November 2018, he was only released on 1 February 2021.
The court said it was satisfied that Xulu had disclosed the self-defence to the police, but the police had failed to disclose it to the prosecution, which was in breach of its public duty.
“To the date of the hearing of the damages’ claim, there was not one glimmer of recognition of the impact of their omission on Mr Xulu’s life.
“The police not only suppressed Mr Xulu’s defence, they conducted a wholly inadequate and shoddy investigation and delayed the investigation for months on end with no reasonable explanation for the delay. These factors compound the injustice which Mr Xulu suffered,” De Vos said in the judgment.
De Vos said this was Xulu’s first arrest, and he was shocked and traumatised by his detention.
Xulu testified that he received dry bread and juice, was assaulted by inmates, and separated from his family for two years.
“He escaped a violent fight by hiding under his bed. He still bears a scar on his face as a result of this fight. He was so shocked that he lost consciousness and awoke in hospital.
De Vos added:
The court ordered the police minister to pay R2.6 million in damages to Xulu.
“The first defendant [police minister] to pay interest on the aforesaid sum at the mora interest rate of 7% per annum from 1 November 2021, being the date of service of summons to the final date of payment.
“The first defendant [police minister] is to pay interest on the taxed costs from the date of allocator by the Taxing Master to date of final payment.”
The court also ordered the police ministry to pay the costs of the lawsuit.