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MBABANE - The arrest and subsequent prosecution of a mentally unstable man might come at a heavy price for the Eswatini Government.
This is so because the father of the patient is now suing the State for over E6 million.

The patient, who had escaped from the National Psychiatric Hospital, was arrested and consequently sentenced to four years imprisonment without an option of a fine by the magistrates court. This was after he was found guilty of having stolen a kombi he found idling at Mahhala Complex in Matsapha.

In the particulars of claim, the plaintiff (father) claimed that despite the police and the director of public prosecutions (DPP) having been notified that his son had escaped from the National Psychiatric Hospital, they allegedly proceeded to unlawfully arrest and prosecute him. After the patient’s conviction and sentencing by the magistrate, the matter was then taken to the High Court for a review.
Judge Nkosinathi Maseko, who heard the review application, found that the detention of the patient was unlawful and further ordered that he should be released from custody forthwith.


The patient had already spent 15 months behind bars when the court ordered his release from custody.
The name of the patient and that of his father, who is the plaintiff in the matter, will not be mentioned as sickness remains confidential between a doctor and a patient.
In his particulars of claim, the plaintiff narrated that on or about April 19, 2016, his son was diagnosed with a mental issue that allegedly rendered him incapable of managing his affairs.
He related to the court that on December 8, 2017, his son escaped from the National Psychiatric Hospital. 

According to the plaintiff, following his son’s escape from the hospital, he ran an advert on national radio and in the Times of Eswatini, appealing to members of the public to assist in locating the patient.
He alleged that the National Psychiatric Hospital also notified the police about the escape of his son.
“Despite that the police had been notified that the patient had absconded from the National Psychiatric Hospital, they unlawfully arrested him (son) on December 16, 2017 for having stolen a kombi which he found idling and he drove it away at Mahhala Complex,” submitted the plaintiff.
The father informed the court that when the law enforcers arrested his son, they were acting within the course and scope of their employment with the Eswatini Government.


He argued that despite the police and the DPP allegedly observing that his son was mentally unstable and not fit for trial, he was prosecuted by the Crown and sentenced to four years without an option of a fine.
“As a result of the unlawful conduct of the police and the DPP, my son was unlawfully detained by the Correctional Services from December 16, 2017 until he was released through a court order by the High Court on March 25, 2019 under Case No. 82/2019,” contended the father.

He highlighted that the High Court held that the prosecution of his son was unlawful and ordered that he should be released from custody forthwith.
According to the plaintiff, at the Correctional Services, his son was handcuffed as a result of his mental illness and his hands were allegedly permanently damaged. These are allegations contained in particulars of claim whose veracity is still to be tested in court.

“The  Eswatini Government is therefore liable to the plaintiff in the sum of E6 050 000, which despite lawful demand, the defendant (Eswatini Government) has failed and/or neglected or refused to pay same thereof,” read part of the particulars of claim. The matter is still pending in court and appearing for the plaintiff are lawyers from Robinson Bertram in Mbabane.

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