Back in the days when tobacco was freely available and relatively affordable, rather than only available in the criminal economy at a high price, Nomochina Gqunta was arrested for allegedly stealing two packets of cigarettes.
Even though the value of what the 40-year-old was suspected of taking was less than R100, she was refused police bail and spent two nights in a police cell.
Four years and two court cases later, Gqunta is R50,000 richer after a Makhanda high court judge decided that she had been wrongfully detained.
Judge Judith Roberson said “an objectively rational exercise of discretion” by staff at Walmer and Humewood police stations in Port Elizabeth would have resulted in Gqunta’s release on bail soon after she was arrested at the Pick n Pay where she worked.
“Her address was verified, she had two children, one of whom was a minor, she had no outstanding warrants of arrest, and no previous convictions,” said Roberson.
“The offence was relatively petty and it was highly unlikely that [Gqunta] would have been sentenced to direct imprisonment. She would have more likely received a fine with an alternative of imprisonment, possibly suspended. In all these circumstances it would have appeared that [Gqunta] was not a flight risk.”
Instead, she was held in a Humewood police cell between Saturday morning and Monday morning, and released on warning after appearing in court.
Gqunta first went to the Port Elizabeth magistrate’s court to seek damages for wrongful detention, but her claim was dismissed.
Ruling in her successful appeal, Roberson said the mother had suffered emotionally in the 48 hours after being arrested about 9am on a Saturday, “particularly because her children were without her, and that the conditions in the cell were unpleasant and unhygienic”.
Roberson agreed with counsel for the police minister that Gqunta was “not an altogether honest witness. She denied stealing the cigarettes but later admitted doing so [and] disavowed her signature on the form containing her constitutional rights”.
But these issues were irrelevant to the question of her right to be freed on bail. “Any wrongful deprivation of liberty is inherently serious and traumatic,” said Roberson.
She awarded Gqunta R50,000 damages plus costs.