Court awards man over R2?million for wrongful incarceration

2014-03-17 00:00

ALTHOUGH Sivion Mkhize (28) is R2,1 million richer after winning a lawsuit against the Department of Justice for wrongful imprisonment, he is also poorer for having lost two years and three months of his life.

Mkhize was overjoyed on Friday when he heard he was awarded damages totalling R2 162 000 by Pietermaritzburg acting high court judge Piet Bezuidenhout.

But his fight for justice had spanned more than a decade from the time of his imprisonment in November 2001.

He said he can’t reclaim the years of his life that he missed out on whilst in jail and if he had a choice he wouldn’t trade them for the money.

Mkhize, who runs an electrical business in the Ladysmith/Newcastle area, seemed unsure how he will go about spending his newfound riches.

His Newcastle-based lawyer, Kamlesh Gurlal was responsible for helping him to eventually trace the clerical errors that led to Mkhize’s wrongful incarceration in 2008.

Gurlal told The Witness that he and the entire legal team that had assisted Mkhize, including Pietermaritzburg advocate Mergen Chetty and law firm Subhash Maikoo & Associates, were “delighted” by the verdict. “At last justice has been done,” he said.

The “injustice” done began with the failure by a judge’s registrar to record that Mkhize was granted bail of R5 000 when he was granted leave to appeal against his robbery conviction in November 2001, and the incorrect case number being recorded on his file.

It was only when Gurlal accompanied Mkhize to the high court in Pietermaritzburg on May 30, 2008, that his file was traced (filed under the wrong case number) and it was discovered that his appeal had already succeeded and his conviction set aside during 2004.

Mkhize had tried fruitlessly to persuade the authorities that he had heard Judge Leona Theron grant him bail, to no avail. His efforts included writing to former KZN judge president Vuka Tshabalala, the Public Protector and the Jali Commission.

He testified during the lawsuit that life in Waterval prison had robbed him of his youth and “traumatised” him because he was incarcerated with dangerous convicts. He said he was held in Maximum B section at Waterval. Each cell accommodated 36 prisoners and “every day there would be fights”.

He had to join a faction and pay protection money that was smuggled in to him by his family just to survive.

Mkhize said even when he was released from jail in 2004 he had not realised that he was free because his appeal had succeeded. He thought that he was let out on bail because that was what a warder told him.

It was only when he approached Gurlal to try to find out when his appeal was due to be heard that the truth came out in 2008.

Acting Judge Bezuidenhout said in his judgment it was clear that there was no malice intended by any official towards Mkhize. However, the errors had severe consequences for him.

He dismissed submissions on behalf of the Justice Department that the time for Mkhize to sue had lapsed by the time he filed his claim in November 2009.

Mkhize’s original claim was for R16 948 000.

In determining what amount to award him, the Judge took into account that Mkhize had a Grade 12 and electrical qualification; was employed earning R6 000 per month at the time and that his time in prison must have been traumatic.

He awarded Mkhize damages of R2 million for the 822 days he spent in custody, and R162 000 for loss of earnings.

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