‘Malicious’ magistrate jails dad for R300 upkeep

Date: 05 Jul 2021

A MAGISTRATE who ordered police to arrest and detain a father for offering to pay R300 for child maintenance has been found to have acted maliciously.

Thabo Masia, from Atteridgeville in Pretoria, was told by the magistrate to go and think about his low offer “clearly and thoroughly” in the police cells.

Having been detained from about 1.45pm, Masia was released from custody at about 10am the next day. He was released after he increased his child maintenance offer to R700.

Masia sued the Ministers of Justice and Constitutional Development and Police for being arrested without a warrant and for being detained despite not being charged or found guilty of any offence.

He detailed in court papers that he was detained with others in a dirty cell in which he slept on the floor with a smelly blanket.

Another magistrate ruled in favour of Masia’s litigation in a civil magistrate’s court in 2018 and awarded him R75 000.

But the ministers dragged the matter to the North Gauteng High Court, Pretoria, on an appeal application.

Masia emerged victorious last week against this appeal application, as Acting Judge CN van Heerden and Judge Vuyelwa Tlhapi dismissed it.

“We concur that the respondent was unlawfully arrested and detained for one day by members of the South African Police Service and that the entrenched constitutional rights of the respondent were breached,” they said.

“Respondent was arrested without a warrant, he was not charged with any offence, nor was he found guilty of any offence. The arrest took place in full view of his colleagues.”

These colleagues were in the courtroom in which the magistrate, unnamed in the judgment, ordered Masia’s arrest after rejecting his R300 child maintenance offer.

Records before the high court showed that the magistrate told Masia to go to the cells “to think clearly and thoroughly and to come up with a better offer”.

The Justice Ministry sought to appeal on an argument that it could not be compelled to cough up for decisions that a magistrate discharged while exercising his judicial discretion.

Further, the ministry submitted that the magistrate should have been found to have acted negligently and not maliciously.

Judges Tlhapi and Van Heerden shot down these arguments, finding that the magistrate had acted maliciously and in his capacity as a state employee.

“The submission by the counsel of the First Applicant (Justice Minister) that the magistrate acted negligently and not maliciously is rejected,” said the judges.

“We find that the magistrate acted as an employee of the First Applicant in the exercise of his duties.

“The bullying tactic of detaining the Respondent without a warrant of arrest is a clear abuse of judicial power and malicious. In the result we find that the magistrate acted maliciously.”

The judges cleared the police of any wrongdoing in the matter. Their counsel submitted that they had merely complied with a court order.

As a result, the Justice and Constitutional Development Ministry will cough up all of the R75 000, plus an annual interest rate of 10.25% calculated from November 2018.

BONGANI NKOSI bongani.nkosi@inl.co.za | @BonganiNkosi87

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