The state is facing a R318-million lawsuit for bungling the high-profile murder case of Hillary Gardee, whose gruesome killing hogged international media headlines.
Three men who were arrested for killing Gardee, the daughter of former EFF secretary-general Godrich Gardee, are demanding R100-million each from police minister Bheki Cele and the national prosecuting head, Shamila Batohi, for wrongful arrest and malicious prosecution.
In a separate case, the politician is also suing justice and correctional services minister Ronald Lamola for R18-million for negligence.
The former red beret MP said the man who admitted to killing his daughter was released on parole and allegedly violated it, but was never re-arrested before killing her.
News that the four men are suing the state is contained in two different letters of demand, which were sent to Cele, Batohi and Lamola.
Philemon Lukhele, Sipho Lawrence Mkhatshwa, and Albert Mduduzi Gama, in the letter, written by their law firm MT Raselo Incorporated, are demanding R100-million each for their “wrongful and unlawful arrests and malicious prosecution”.
The three men claim they were “severely assaulted and tortured” when police tried to “coerce” them into not only agreeing to have committed criminal acts but also implicating other people.
One of the people they were allegedly forced to implicate, they said, was EFF deputy president Floyd Shivambu.
The police allegedly wanted them to say Shivambu had hired them to kill Gardee because he had a fictitious political fallout with her father. They said they first asked Lukhele to implicate Shivambu .
When they realised there was no connection between the two, they then begged Mkhatshwa to implicate Shivambu but he refused to be part of “their sick game.”
They said they were kept in custody without bail from May 6 2022.
Lukhele, after a long court battle, was the only one released on R20 000 bail this year. Mkhatshwa and Gama only regained their freedom after the state withdrew the case against the three men on April 12.
When the state withdrew the case, it claimed its star witness, a sangoma who allegedly claimed that Mkhatshwa consulted with him for cleansing shortly after Gardee’s murder, had “vanished”.
But later, the state prosecutor, advocate Thobeka Phungula, submitted a statement claiming they were unable to proceed with the case as three key witnesses refused to take the stand. The state then provisionally dropped the charges against the three at Phungula’s behest.
The withdrawal of the case came after police arrested Hlabirwa Rassie Nkuna, who confessed he had killed Gardee alone and dumped her body in the bush in Sabie.
The three men, in their lawsuit, also allege the National Prosecuting Authority (NPA) “maliciously prosecuted them even when it was crystal clear there was no shred of evidence against them”.
They said they “lost their dignity and respect in their communities, their freedom, their rights under the constitution… as a result of their arrest and malicious prosecution”.
According to the letter, Lukhele lost an income when the University of Mpumalanga cancelled the student accommodation contract it had signed with him. His guest house was set alight by the angry residents after his implication in Gardee’s murder.
Lukhele was also suspended from his job at the Mpumalanga legislature and only returned to work after the state withdrew the case. The Mpumalanga ANC also withdrew his membership but reinstated him after he was released.
Mkhatshwa, according to the letter of demand, was unfairly dismissed from his job and remains unemployed. His reputation as a respected family man and community leader was tarnished, and his traditional marriage celebration was cancelled due to his arrest, stated the letter. Furthermore, the police have not returned his confiscated vehicles.
Gama was also humiliated and lost his job as a security guard. The letter also states that Lukhele, Mkhatshwa, and Gama incurred significant financial losses, amounting to R117. 8m,R100.972m and R84.616m, respectively.
“We are hereby instructed to demand from you payment of the sum of R301 368 900 within 30 days from date of receipt of this letter, failing which summons will be issued against your offices without further notices.”
The 30 days expires on or around October 18.
Mpumalanga NPA spokesperson Monica Nyuswa and SAPS spokesperson Athlenda Mathe refused to comment.
Through lawyers, MM Mashele Attorneys, Gardee’s father said the department of correctional services had acted negligently in releasing Nkuna on parole.
The lawyers said Nkuna who was then facing 10 criminal cases, including armed robbery, murder, possession of a stolen vehicle and had absconded from parole management for two years, was arrested for an alleged rape offence. But the case was withdrawn and the department did not press charges against him for violating his parole conditions.
“If the parolee had been charged for abscondment and violation of his parole conditions when he was later arrested and released for an unrelated charge, he would have been released sometime in 2023, and the late Hillary Gardee would not have been his victim, causing the Gardee family so much grief,” reads the letter.
The family demand an apology from Lamola and R2-million for each of the nine family members who endured pain and suffering, as well as special expenses such as funeral costs, a tombstone and incidental costs.
“The family spent a fortune on funeral expenses from the day of body discovery to the aftermath of the funeral, including the traditional cleansing ceremony and tombstone in the future”.
“Our clients have since been committed to seeing psychologists for counselling on account of trauma, grief and shock, which has resulted in flashbacks and panic attacks,” said the lawyers, giving the state 60 days to pay.
Correctional Services spokesperson Singabakho Nxumalo said the matter was before the court, where it would be addressed competently. Regarding Nkuna’s parole, Nxumalo said the department explained that inmates were eligible to be considered for parole placement after serving the minimum detention period. “When parolees abscond from the system of community corrections and re-offend, there is a process in place to deal with such”.
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