Police apologise to top lawyer for wrongful arrest

By Tendai Kamhungira

The police have apologised to seasoned lawyer Mordecai Mahlangu, after conceding to wrongfully arresting and detaining him on charges of trying to obstruct the course of justice.

He was arrested in 2009 over his representation of Michael Peter Hitschmann, who was a witness in the late Roy Bennett’s trial at the High Court.

He was arrested in November 2009, and spent a night in police cells after he prepared an affidavit indicating that Mutare arms dealer Hitschmann — the State’s star witness in Bennett’s trial — was not going to testify because the evidence that the State recorded was obtained through torture.

The State accused Mahlangu of having written the affidavit on Hitschmann’s behalf and caused him to sign it when he approached him for advice.

However, Mahlangu was later acquitted on the charges, before he filed a lawsuit against the then Prosecutor-General Johannes Tomana and former police commissioner general Augustine Chihuri, along with two detectives — Henry Dowa and Clever Ntini — for unlawful arrest.

He argued that his arrest was not warranted as he was acting purely as a legal practitioner giving advice in accordance with his professional requirements.

In a latest development, the two detectives and the Home Affairs ministry have since acknowledged that the arrest and detention was unlawful.

“First, second and fifth defendants (Dowa, Ntini and Home Affairs ministry) acknowledge as follows: the plaintiff’s arrest on the 2nd and 3rd of November 2009 was wrongful, unlawful and contrary to the provisions of the Constitution of Zimbabwe. We regret our individual and collective roles in the said arrest and detention of the plaintiff.

“We acknowledge that a legal practitioner discharging his mandate in terms of the law, such as was the plaintiff in this matter, should never be hindered in the exercise of his duties and indeed should not suffer the same fate as the plaintiff in this instance.

“We collectively proffer our unreserved apology to the plaintiff herein for the hurt, humiliation and suffering he suffered as a result of the wrongful arrest and detention,” the detectives and the Home Affairs ministry said.

The parties have since come up with a deed of settlement, bringing the nine-year battle to finality.

“The first, second and fifth defendants jointly and severally the one paying the others to be absolved will pay the plaintiff’s wasted costs in the agreed amount of $8 500 plus VAT (Value Added Tax) and the fee payable to plaintiff’s counsel in the sum of $5 000 plus VAT before end of day on Friday the 30th of November 2018,” the deed of settlement reads.

Lewis Uriri and Sylvester Hashiti argued the matter for the respondents, while Thabani Mpofu represented Mahlangu.

In his suit, Mahlangu had cited Dowa and Ntini, who were the arresting officers at the time of his persecution, Chihuri, who was the commissioner-general at the time of his arrest,  Tomana, the former Attorney-General and former co-ministers of Home Affairs Kembo Mohadi and Theresa Makone as defendants. He was suing the defendants in their personal capacity.

Mahlangu was caught up in attempts by Tomana to have Hitschmann, who was the key witness in the terrorism trial of Bennett impeached for giving contradicting evidence.

Bennett — who is now late —  was facing charges of illegal possession of arms for purposes of committing terrorism, banditry and sabotage.

Hitschmann, a former police officer and arms dealer, disowned some of the weapons attributed to him by the State as well as e-mail print-outs purportedly showing communication between him and Bennett.

The State wanted Hitschmann to be an accomplice witness and its case hinged on confessions said to have been made by the arms trader implicating Bennett in 2006.

Hitschmann, who retained Mahlangu as his counsel, disowned the confessions, including a video recording, saying he was tortured to make the statements.

Mahlangu was also taken into custody after leading testimony from Hitschmann that he was a registered arms dealer when he was arrested in March 2006 and collected firearms from white commercial farmers who were forced off their land.

Hitschmann was jailed for illegal possession of dangerous weapons in 2006 but the court threw out the more serious terrorism charges and also found that he had licences for most of the weapons that he kept. Mahlangu in court successfully rubbished Tomana’s claim before

High Court judge Chinembiri Bhunu said that Hitschmann’s testimony was different from statements he made on his arrest, implicating Bennett, and his attempts to have him impeached by the court was stonewalled by the ZLHR board chair, who has abused by the police over his unwavering stand. Daily News