Magistrate who detained AWOL cop cleared of wrongdoing

2018-11-26 16:55
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A senior Durban magistrate – who put a police officer behind bars for three hours because he was not at court when he was supposed to testify – has been cleared of any wrongdoing.

Warrant Officer Rajen Nagesar, who is attached to the Provincial Task Team, Serious Crime in Isipingo, sued regional court magistrate Anand Maharaj, claiming he suffered serious trauma because he was placed in holding cells along with those he was supposed to testify against.

However, in a recent ruling, Sardia Jacobs, a regional court magistrate from East London who was tasked with hearing the matter, ruled that Maharaj had acted "with reasonable and probable cause" and not with malice.

The case involved events in Maharaj's court seven years ago. Nagesar had been served with a subpoena to attend court to give evidence regarding an identity parade he had overseen.

But when it was time for him to testify, he was not there.

Total shock

Maharaj asked the prosecutor where he was and although she indicated that he was in the building, she said she had not given him permission to leave.

Nagesar had been testifying in another court and saw several missed calls on his phone afterwards.

He said he went back to Maharaj's court and was then arrested by the court grill manager (manager of the court cells) and detained in the holding cells.

"I was in total shock," he said.

"The magistrate referred to the fact that he had had two other policemen arrested before and I would be his third."

Later that day, the magistrate held an inquiry and, after accepting Nagesar's explanation, cancelled the warrant of arrest.

In his evidence, Maharaj said that, when he questioned the prosecutor "he got the sense that the witness was outside the court" and when it was discovered that he was not, she had no idea why he was no longer there.

He said if he had known that Nagesar was testifying before a particular court he would not have had a problem, but the building was vast "and saying someone is at court without indicating which court was of no assistance".

Showing disrespect

He said Nagesar "acted badly" after he was detained.

"He was either banging or kicking on the door as he left the courtroom for the cells. He was being arrogant and showing disrespect."

Maharaj said he had referred to other police officials being arrested "to emphasise the seriousness of the situation" and not because he wanted to make an example out of Nagesar.

In her ruling, Jacobs said taking into consideration all the events before Maharaj issued the warrant of arrest, he had not acted with malice and that from his perspective, Nagesar had never asked for permission from anyone "but had just decided on his own that he was going to go".

"Regard must be had to the fact that the presiding officer is required to manage court proceedings and must have regard to the constitutional imperatives that a trial must begin and end without unreasonable delay otherwise the fair trial rights of the accused is affected," she said, dismissing the action with costs.

Read more on:    durban  |  police  |  courts
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