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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 14823/2021

(1)  REPORTABLE: YES / NO

(2)  OF INTEREST TO OTHER JUDGES: YES/NO

(3)  REVISED.

 

In the matter between:

 

THE MINISTER OF POLICE                                    1^ST APPLICANT

 

THE NATIONAL COMMISSONER                           2^ND APPLICANT

SOUTH AFRICAN POLICE SERVICES

 

THE GAUTENG PROVINCIAL COMMISSIONER   3^RD APPLICANT

SOUTH AFRICAN POLICE SERVICE

 

THE NATIONAL DIRECTOR OF                              4^TH APPLICANT

PUBLIC PROSECUTIONS

 

AND

 

ZWANE KATLEHO PHOKA                                     RESPONDENT

 

JUDGMENT

 

MABESELE J:

 

[1]  The first, second, and third applicants are applying for leave to appeal against a part of the judgment and orders, dated the 4^th of March 2025.

 

[2]  The issues raised by the applicants in this application were already dealt with in the judgment, except an additional argument which is dealt with in paragraph 3, below.

 

[3]  Counsel’s argument is that the police arrested the accused on the bases of the report made to him by the complainant‘s mother and he reasonably suspected that offence was committed. His argument that the police officer did not have to ascertain whether the accused at the age of thirteen appreciated the offence alleged to have been committed, is incorrect. What counsel implies is that, for as long as a complaint is made to the police that a minor committed a criminal offence of rape, such a minor should be arrested on a “reasonable suspicion”[1] that he committed an offence without any prior inquiry by the police about the minor’s criminal capacity, especially at the age of the accused, and, in the circumstances where the alleged offence was reported by the victim (who was also a minor) to her mother, seven years after the incident had occured. As correctly argued by counsel for the respondent, the police should, at the very least, have liaised with the prosecution for direction. The applicants have no prospects of success on appeal. Neither there are compelling reasons to grant leave to appeal. Accordingly, this application is dismissed. The first, second and third applicants should pay costs on scale B, jointly and severally, the one paying the other to be absolved. The costs should include costs of counsel.

 

M.M MABESELE

(Judge of the High Court Gauteng Local Division

 

Date of hearing:                2 June 2025

 

Date of judgment:              5 June 2025

 

APPEARANCES

 

For the Applicants:            Adv. Mawila

 

Instructed by:                    State Attorneys.

 

For the Respondent:         Adv. Nwakodo

 

Instructed by:                    Okafor Ma Attorneys Inc.

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