Concluded Cases

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Concluded Case 98GT000523
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Report on status of cases 6-3-00
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Republic of South Africa
INDEPENDENT COMPLAINTS DIRECTORATE
Case Investigative Report

1. COMPLAINT IDENTIFICATION

2. IDENTITY OF THE ICD

The Independent Complaints Directorate ("ICD") is an independent statutory body under civilian control, created in terms of Section 50(1)(a) of the South African Police Service Act (68 of 1995). Its principal function (in terms of Section 222 of the Interim Constitution Act (200 of 1995)), is to ensure that complaints in respect of offences and misconduct allegedly committed by members of the South African Police Services ("SAPS") are investigated in an effective and efficient manner.

3. SOURCE OF THE COMPLAINT

The Complainant reported this matter telephonically to the ICD on 1998-04-15 as per ICD Form 1 (A.1).

4. ALLEGATIONS OF COMPLAINT

4.1 Summary of allegations:

It is alleged that on 1998-04-11 at about 17h35 members of the SAPS received a report of a shooting in progress at Ted Barber Fire Station, Rynfield, Benoni. It is alleged that members of the SAPS who attended at the scene failed to comply with and/or neglected their duties and responsibilities and/or performed their duties in an improper manner, in that they failed and/or neglected to arrest the person responsible for the shooting of a minor child and a baby, and failed and/or neglected to take all reasonable, necessary and/or prudent steps to conduct a thorough and proper investigation.

4.2 Identity of Offences:

4.2.1 Potential Criminal Offences:

From a review of the complaint it appears that members may have committed the following criminal offence:

4.2.1.1 Defeating, or attempting to defeat the ends of justice by performing an unlawful act intended to defeat or obstruct and which does defeat or obstruct the due administration of justice;

4.2.2 Potential Misconduct:

From a review of the complaint it appears that members may have committed the following disciplinary offences:

4.2.2.1 Contravention of Regulation 18(1)(a) - performed an act or failed to perform an act with the intention to cause harm to or prejudice the interests of the Service, be it financial or otherwise;

4.2.2.2 Contravention of Regulation 18(1)(b) - performed an act or failed to perform an act with the intention to undermine the policy of the Service;

4.2.2.3 Contravention of Regulation 18(1)(c) – performed an act or failed to perform an act with the intention not to comply with his or her duties or responsibilities;

4.2.2.4 Contravention of Regulation 18(21) - neglected their duty or performed their functions in an improper manner.

4.3 Legal Considerations:

4.3.1 In terms of Section 40 of The Criminal Procedure Act No 51 of 1977 (as amended), every peace officer may, without a warrant, arrest any person whom he reasonably suspects of having committed an offence referred to in the First Schedule (including Murder and Attempted Murder);

4.3.2 According to Geldenhuys and Joubert (Eds) in Criminal Procedure (Handbook) at p.85, the words "reasonably suspects" do not imply that there must be a prima facie case against the suspect. Section 40 requires only a reasonable suspicion and not a certainty. The suspicion must, however, have a factual basis. The reasonable man would therefore analyse and assess the quality of the information at his disposal critically and he would not accept it lightly or without checking it where it could be checked (see also Mabona v Minister of Law and Order 1988 (2) SA 654 (SE));

4.3.3 In addition the abovementioned authors also state that the peace officer, when effecting the arrest, need not necessarily have the intention of bringing the arrested person to court to be prosecuted. A reasonable suspicion, coupled with the intention to make further inquiries before deciding whether the case merits prosecution will suffice. A further investigation is especially necessary in a case where information is obtained from an informer (see Mabona above). The possibility of an arrested person being released before his appearance in court is not anomalous: it arises from the difference between the test laid down for a lawful arrest without a warrant and the practical requirement of a prima facie case for a prosecution (see Duncan v Minister of Law and Order 1984 (3) 460 (T));

4.3.4 Furthermore, in Tsose v Minister of Justice and Others 1951 (3) SA 10 (A), Schreiner AJ said at p.17 that "What I have said must not be understood as conveying approval of the use of arrest where there is no urgency and the person to be charged has a fixed and known address; in such cases it is generally desirable that a summons should be used. But there is no rule of law that requires the milder method of bringing a person into court to be used whenever it would be equally effective."

5. ICD RESPONSE TO COMPLAINT

5.1 It was decided that the matter, being a Class II complaint and a high-profile matter, would be assigned to a member of the Special Investigations Unit for Full Investigation.

5.2 Summary of ICD Activity:

5.2.1 1998-04-15 (Pretoria)

Complaint registered and assigned to Principal Investigator MATHABATHE for further investigation.

5.2.2 1998-04-15 (Crystal Park):

Travelled to Crystal Park SAPS and met with Station Commissioner, Snr/Supt COMBRINK, and Insp MULLER who furnished a brief verbal explanation of events and gave reasons as to why the suspect was not arrested. He stated that this was a sensitive case and for that reason he sought legal advice from Supt BRONKHORST of the Area Commissioner’s office as to whether the suspect should be arrested or not. After furnishing BRONKHORST with the facts of the case, he was advised that it was not necessary to arrest him. MULLER undertook to furnish the ICD with a written statement;

5.2.3 1998-04-15 (Benoni):

5.2.3.1 At Benoni Magistrate’s court. Interview conducted with Insp RAMOROKA, the Investigating officer. He advised that he had received information at approximately 17h30 from Radio Control that there was a white man at Ted Barber Fire Station with injured children. He further informed the ICD that he remained at the Fire Station whilst Insp MULLER went to the Hospital with the children and the suspect. He later went to the Charge Office to open a docket of Attempted Murder against the suspect. He explained that the suspect was not arrested because he was co-operative and known to the SAPS in the area. He undertook to furnish a written statement regarding the events;

5.2.3.2 Copy of relevant pages of cell register (SAP14) and Occurrence Book (SAP10) obtained from Station Commissioner;

5.2.3.3 Proceeded to Zesfontein and attended at scene of crime. The mother of the injured child was interviewed;

5.2.4 1998-04-16 (Pretoria):

5.2.4.1 Copy of case docket requested;

5.2.4.2 Appointment made with Supt BRONKHORST and Mr PHEFO;

5.2.5 1998-04-16 (Crystal Park and Kempton Park):

5.2.5.1 Proceeded to Crystal Park SAPS to collect various statements;

5.2.5.2 Proceeded to office of Area Commissioner and met with Director VAN TONDER (Head of Legal Services) and Supt BRONKHORST. The latter confirmed that MULLER did telephone him on 1998-04-11 regarding this incident and that he did inform him that it was not necessary to arrest the suspect and that this decision was based on information supplied to him by MULLER. He undertook to furnish a written statement to the ICD;

5.2.5.3 Mr PHEFO interviewed at Office of provincial Commissioner. He also confirmed that Insp MULLER telephoned him at approximately 20h30 on 1998-04-11 to seek advice as to whether to arrest the suspect or not. His telephone cut off before he could furnish a response;

5.2.5.4 Snr/Supt MOKI (Area Head of CIS) seen and interviewed. Certain information and documentation was handed over to the ICD;

5.2.5.5 Telephone call received from Capt PAYNE to advise that he had received instructions from the Office of the Attorney-General not to hand over a copy of the docket to the ICD;

5.2.5.6 Telephone call to Adv BREDENKAMP of A-G’s Office and purpose of obtaining docket explained. Adv BREDENKAMP refused to hand over copy of docket and matter referred to Senior Management of ICD for resolution;

5.2.5.7 Proceeded to Crystal Park CIS and met with Branch Commander;

5.2.5.8 Proceeded to Benoni Regional Court;

5.2.6 1998-04-17 (Benoni):

5.2.6.1 Proceeded to Benoni Magistrate’s Court and met with Snr/Supt MOKI, Capt PAYNE and Insp RAMOROKA;

5.2.6.2 Insp RAMOROKA re-interviewed and statement taken;

5.2.6.3 Proceeded to Crystal Park Police Station and statements collected;

5.2.6.4 Proceeded to Ted Barber Fire Station to obtain statements and were referred to Benoni Fire Station;

5.2.6.5 Proceeded to Benoni Fire Station and met Mr MEYER who undertook to furnish documents and statement to the ICD;

5.2.6.6 Proceeded to Benoni Radio Control and printout obtained.

5.2.7 1998-04-20 (North Rand):

5.2.7.1 Proceeded to Office of Area Commissioner, North Rand. Met and interviewed Supt OPPERMAN and statement obtained;

5.2.7.2 Copy of report compiled by Supt BRONKHORST obtained;

5.2.7.3 Proceeded to Johannesburg to collect statement of Mr PHEFO.

5.2.8 1998-04-30 (Pretoria):

5.2.8.1 Proceeded to office of the Attorney-General and met with Adv VAN JAARSVELD and BREDENKAMP in order to obtain copy of docket. They refused to hand over a copy of the docket to the ICD.

5.2.9 1998-05-12 (Pretoria and Benoni):

5.2.9.1 Telephone to Insp ROSSOUW. He informed that he has already made a statement in the docket. What he remembers is that the suspect appeared to be under the influence of alcohol;

5.2.9.2 Proceeded to Benoni Fire Station and met Mr MEYER and obtained statement of Mr CALLACHAN;

5.2.10 1998-05-14 (Pretoria):

5.2.10.1 Received statement from Sgt HAUPT;

5.2.10.2 Received transcript of conversation conducted on radio from Cst LE ROUX of Benoni Radio Control;

5.2.10.3 Telephone to Benoni Radio Control and ascertained that "BE27" was a vehicle driven by Insp ROSSOUW;

5.2.11 1998-05-19 (Pretoria):

Met and interviewed Insp ROSSOUW and Sgt KHUMALO at ICD Offices;

Interview of Insp ROSSOUW:

He stated that he had already submitted a statement in the docket and therefore a further statement was not obtained on this occasion. He stated that on 1998-04-11 and at approximately 18h00 he was travelling on Pretoria Road on the way to Daveyton. He was in vehicle BE27 together with crewmember Sgt J KHUMALO. He received a complaint of a shooting in progress at Ted Barber Fire Station. He responded immediately and arrived approximately five minutes later. When he arrived, SAPS vehicle BP12 was already there. He asked the SAPS members present what had happened. They indicated that the suspect, a Mr STEYN had shot two children. He took control of the scene and separated the suspect from the victims and asked the suspect where his firearm was. The suspect indicated that it was in his car and Sgt KHUMALO was instructed get the firearm. He spoke to the mother of the children and she stated that she was working for the suspect and that the children were in the veld when he shot at them. She does not know why he shot at them. Sgt KHUMALO returned with the suspect and the firearm. He took the firearm and instructed KHUMALO to take a statement from the mother so that an Attempted Murder docket could be opened. He called Radio Control and requested they send a duty officer, photographer and standby detective. He then interviewed the suspect who stated that he thought that the children were burglars as his house had previously been broken into. The suspect mentioned that he had noticed people in the veld but could not see whom they were and he shouted for them to stop but they refused and so he shot 2 warning shots and then one shot in their direction. The ambulance then arrived and removed the children to the hospital. The crew of BP12 informed him that it was their area and their duty officer and detective was on the way. He gave then the firearm and instructed them to open two cases of Attempted Murder and to arrest the suspect. He further indicated that when he arrived, the suspect smelled of liquor and that his clothes were dirty and his eyes were a reddish colour. It looked like he had been drinking and he was very nervous on the scene. He then left the scene and whilst travelling in the vehicle, he spoke to the crew of BP12 over his radio and instructed them to give a message to the detective at the scene that an attempted murder docket be opened, the suspect arrested and taken to the Charge Office as he was under the influence and a statement be taken from the mother. He was the senior member on the scene and the above were specific instructions that he gave. He does not know if his instructions were conveyed to the detective on the scene. He also indicated that if he had been the officer in charge of that scene he would have detained the suspect and taken him to the hospital to obtain a blood sample for analysis. He said that as an experienced member of the SAPS he could see no reason why the suspect should not have been arrested because the suspect was under the influence, it was apparent the child was going to die and the suspect was very nervous on the scene.

Interview of Sgt J KHUMALO:

He corroborated the version of events as per Insp ROSSOUW in all material respects. He was also surprised to learn at a later stage that the suspect had not been arrested and was of the opinion that if he had been in charge of the scene he would have arrested the suspect.

5.2.12 1998-05-22 (Pretoria):

Sgt R NORTJE seen and interviewed.

6. INVESTIGATIVE FINDINGS

6.1 Summary of Evidence:

6.1.1 Statements:

6.1.1.1 Esrom Ramoroka (A.5 and A.8) - stated (A.5 – statement made for the docket) that on Saturday 1998-04-11 he was called to the Rynfield Fire Station, Benoni where he found the suspect, NICHOLAAS STEYN who reported to him that he had shot two children at his Plot 219, Rooikat Street, Petit, Crystal Park thinking that they were house-breakers. That STEYN was in the company of the mother of the one child, Angelina ZWANE who is six (6) months old. That STEYN had taken the mother with him to Glynwood Hospital, Benoni. That the two children, Francinah DLAMINI and Angelina ZWANE were going to Plot 219, Rooikat Street, Petit coming from Plot 126, Rooikat Street, Petit, Crystal Park which is next door when the shooting took place. That the two children were walking in the long grass. That when STEYN noticed the two children he realised they were the housebreakers as on 1998-04-09 when his house was broken into (vide Crystal Park Cas 69/04/98 – Housebreaking with intent to steal and theft). That STEYN had run to them and asked them to stop coming to his place. That STEYN had fired a warning shot and the children had kept coming to his yard. That STEYN had fired a second warning shot and then a third shot at the children. That the two children had fallen down in the long grass and begun to cry. That STEYN had run to them and taken them, together with their mother, to the Glynwood Hospital in Benoni. That DLAMINI, 11 years of age, was transferred to Boksburg Hospital and ZWANE, 6 months old was transferred to Johannesburg Hospital where she died on 1998-04-10. That on Saturday 1998-04-11 at about 10h00 he had ran up and down with STEYN looking for the report of the two children. That STEYN telephoned to Johannesburg Hospital and that he was the one who discovered that ZWANE had passed away. That STEYN further informed him that it was not his intention to shoot at the two children but that he had shot at them because he thought they were housebreakers and that he was sorry for what he had done. That on Monday 1998-04-13 at about 08h00 STEYN came with his advocate to his office. That he had tried to contact the Prosecutor without success. That he then warned STEYN on 1998-04-14 to appear in Benoni Court. That (A8 – statement made to ICD investigator) on Saturday 1998-04-11 he was on standby and at about 18h00 he received a radio call from Radio Control saying that there was a shooting incident at Rynfield Fire Station. That he arrived at the scene at 18h15 where he found the suspect, STEYN, with the mother of the children. The children were not there. That he received a message that they had been taken to hospital. That he found MULLER at the Fire Station and that suspect STEYN went with the mother of the deceased and MULLER to the hospital. That he went to the Charge Office to open a case docket against the suspect. That on Sunday 1998-04-12 he rushed to the home of the suspect to investigate. That the suspect showed him the scene. That he could not find anything at the scene. That after that he went to MULLER who telephoned the hospital and ascertained that one child had died. That MULLER told him that the suspect STEYN should not be arrested and he did not arrest the suspect because of information given to him by MULLER.

6.1.12 Soloman Johannes Muller (A.6) – stated that he is an Inspector in the SAPS and stationed at Crystal Park. That on 1998-04-11 at approximately 17h40 he was requested by Sgt HAUPT to attend at Ted Barber Fire Station in connection with a shooting incident at Plot 129, Rooikat Street, Zesfontein, Petit. That when he arrived, a certain Mr STEYN explained to him what had happened. That he then proceeded to the hospital to ascertain the condition of the children where he was informed that it was stable. That he then informed all Area officers of the incident and explained to them what had happened. That he then obtained legal advice from the SAPS Legal Services where he spoke to a certain Mr PHEFO of Gauteng Legal Services whom advised him that he could not arrest the suspect. That he also spoke to Supt BRONKHORST of Area North Rand Legal Services whom also advised him that he was not obliged to arrest the suspect.

6.1.1.3 Cellier Combrink (A.7) – stated that he is a Superintendent in the SAPS and appointed as the Station Commissioner, Crystal Park. That on 1998-04-11 at approximately 21h00 he contacted the Duty Officer of SAPS, Crystal Park, Insp S J MULLER to ascertain whether a shooting incident had taken place in the Crystal Park Police area. That MULLER confirmed that a shooting incident had taken place between 17h00 and 18h00 at Plot 129, Rooikat Street, Zesfontein, where one MR STEYN had wounded two (2) children with a 7.65mm pistol. That he was further informed by MULLER that a case of Attempted Murder had been registered and that Insp RAMOROKA was investigating the case. That MULLER further informed him that all interested parties had been contacted and notified of the shooting incident. That MULLER further informed him that the suspect in the case, STEYN, was not arrested, but that he had contacted Legal Services and did not arrest him on their recommendation. That he was satisfied with the actions of MULLER.

6.1.1.4 Eugene Avalon Opperman (A.10) – stated that he is a Superintendent in the SAPS and serves as Area Head: North Rand Communication Service. That on 1998-04-11 he was performing duties as the communication officer on standby. That he was contacted telephonically by Insp MULLER from Crystal Park Police Station who informed him of an incident where a man living on a plot in Zesfontein had allegedly fired at people on his plot. That he was further informed that an 11-year old child and a 6-month old baby had been wounded in the incident. That he asked MULLER whether the man had been arrested. That MULLER advised him that the man had not been arrested because as he had been living on the plot for 30 years and had given his full co-operation to the Police at all times after the shooting. That although he does not have the executive power to give orders to the I/O on issues pertaining to criminal investigations or arrest, he advised MULLER that it would be wise for the I/O to obtain legal advice before making a final decision not to immediately arrest the alleged perpetrator. That MULLER was requested to furnish a written report about the incident immediately after they had made their decision about arrest. That after he received such written report, he issued a press release in a neutral and unbiased way. That he was then contacted by many journalists who wanted to know why STEYN was not arrested and that with the exception of certain instances, he informed them as per the contents of his press release. That during the morning of 1998-04-12 he spoke again with MULLER on the telephone and was informed that that the 6-month old baby had died in hospital and that the parent’s had been informed and that he informed the press accordingly. That during the morning of 1998-04-13 he again spoke with MULLER on the telephone and was advised that STEYN and his lawyer were at the Crystal Park Police Station and that STEYN was charged with murder and attempted murder. That the I/O also contacted him and confirmed this information and that he had arranged for STEYN to appear in Benoni Regional Court on 1998-04-14. That he informed the media accordingly.

6.1.1.5 Thuto Gaogakwe Phefo (A1.2) - stated that he is a member of the SAPS. That on 1998-04-11 at about 20h30 he received a call from Insp MULLER of Crystal Park Police Station. That MULLER informed him that at about 17h15 somebody had discharged a firearm and injured a small child. That he inquired from MULLER whether this person was a police official. That MULLER replied that the person was a plot owner and that the victim was a black child and that this accident occurred on the former’s property. That MULLER further advised that his "problem" was that members of the media were pressurising him to arrest the person. That he then asked MULLER why he had a problem to arrest this person. That MULLER replied that the person was well known, had a fixed address, was co-operative and that he (MULLER) had already opened a case of attempted murder against the person and he saw no need to effect an arrest. That MULLER then requested his opinion as to whether or not he agreed with his views but before he could reply the conversation was interrupted because the battery of his cellphone was low. That he did not speak to MULLER again.

6.1.1.6 Johan Haupt (A.15) – stated that he is a Sgt in the SAPS and stationed at Crystal Park Police Station. That on 1998-04-11 he was on duty and at about 17h35 he heard a report on the radio of a shooting in progress at Ted Barber Fire Station. That he was nearby and immediately raced to the scene. That on his arrival he noticed various paramedic personnel that were busy attending to a baby and a child. That an unknown person informed him that it was the white male standing behind them that had done the shooting, wounded the children and brought them to the Fire Station. That he approached the man, a Mr STEYN, who told him what had happened. That he told him that the incident had occurred at 129 Rooikat Street, Zesfontein, Petit. That he immediately contacted Insp MULLER telephonically and informed him of the incident. That Insp MULLER and Insp RAMOROKA arrived at the Fire Station and he explained to them what had happened and what STEYN had told him. That MULLER spoke to STEYN and completed his media report. That RAMOROKA then dealt further with the case. That he then proceeded to the office of MULLER who spoke with legal Services in order to obtain legal advice.

6.1.1.7 Riaan Nortje (A.25) – stated that he is a Sgt in the SAPS and stationed at Crystal Park Police Station. That on 1998-04-11 he was on duty and at about 17h35 he heard a report on the radio of a shooting in progress at Ted Barber Fire Station. That he and Sgt HAUPT immediately raced to the scene. That on his arrival he noticed paramedic personnel attending to a child and a baby. That he approached the paramedics and spoke to them to try and find out what had happened. That they informed him that the baby of about six (6) months was wounded in the head and the girl of about eleven (11) years was wounded in the left shoulder. That he contacted Insp RAMOROKA on the radio. That RAMOROKA arrived on the scene a short while later and he handed the scene over to him. That he and Sgt HAUPT then proceeded to the office of Insp MULLER who contacted various officers telephonically as well as Legal Services to obtain legal advice.

6.1.2 Documentary Evidence:

6.1.2.1 Various newspaper clippings relating to incident;

6.1.2.2 Cell Register (SAP14) reflecting the entry of the suspect’s name on 1998-04-14 (A.3);

6.1.2.3 Copy of Occurrence Book (SAP10) reflecting First Information of Crime regarding shooting incident and arrest of the suspect (A.4);

6.1.2.4 Copy of printout from Radio Control reflecting time and date of report of shooting incident and time and date of SAPS response to report (A.9);

6.1.2.5 Copy of Press Release by Supt OPPERMAN, SAPS: North Rand Communication Service;

6.1.2.6 Letter from Supt BRONKHORST, Legal Services: Area Commissioner: North Rand to ICD dated 1998-04-20 (A.11);

6.1.2.7 Copy of pages C.1 – C.2 of Investigation Diary of Crystal Park Cas 89/04/98 (A.13);

6.1.2.8 Copy of transcript of conversation between Radio Control and members of the SAPS on Band 43, Monitor 11 on 1998-04-11 (A.16);

6.1.2.9 Investigator’s notes taken during an interview with Insp ROSSOUW on 1998-05-19 at the offices of the ICD (A.17);

6.1.2.10Investigator’s notes taken during an interview with Sgt J KHUMALO on 1998-05-19 at the offices of the ICD (A.18);

6.1.2.11Transcript of notes taken during interview of Insp ROSSOUW (A.19);

6.1.2.12Transcript of notes taken during interview of Sgt KHUMALO (A.21);

6.1.2.13Transcript of notes taken during interview of Sgt HAUPT (A.23);

6.2 Analysis of evidence:

From a perusal and evaluation of the evidence available to the ICD, the following is clear:

6.2.1 Statements:

6.2.1.1 No thorough investigation was conducted when the incident was first reported to the SAPS. It is also clear that established investigative procedures were also not followed immediately after the Duty Officer (MULLER) and standby detective (RAMOROKA) attended at the scene;

6.2.1.2 No steps were taken by either MULLER or RAMOROKA to ascertain or verify whether the version of events as furnished by the suspect, STEYN, was in fact true or that the incident could have occurred as he claimed it had. This is crucial when one takes into account that STEYN’s version of events was one factor that was taken into consideration when a decision was made whether or not to arrest him (see A.11);

6.2.1.3 No attempt was made by either MULLER or RAMOROKA at the time the incident was reported to attend at the scene of the shooting to search for evidence or to verify STEYN’s version of events. This was only done the following day (see A.13);

6.2.1.4 From the information at our disposal (i.e. statements (see A.5, A.8 and A.6) and an extract from the investigation diary of Crystal Park Cas 89/04/98 (see A.13)), it appears that the Investigating Officer (RAMOROKA) did not summon any member from the Local Criminal Record Centre (LCRC) to attend at the scene of the shooting and take photographs and prepare a sketch plan.;

6.2.1.5 The suspect was not arrested at the scene;

6.2.1.6 No immediate search was conducted of the suspect’s residence in order to ascertain whether he was in possession of any other firearms besides the one that was handed over to the SAPS. Such search was only conducted four (4) days after the incident and two (2) further firearms were discovered and seized;

6.2.1.7 No blood sample was drawn from the suspect for the purpose of blood/alcohol analysis, despite the fact that at least two (2) SAPS members on the scene were of the opinion that the suspect was under the influence of alcohol (see A.16 and A.17);

6.2.2 Documentary Evidence:

6.2.2.1 The community expressed condemnation and outrage at the failure by the SAPS to arrest the suspect. There appears to be a unanimous opinion, expressed even by the Provincial Commissioner that the suspect should have been arrested (see press clippings in file);

6.2.2.2 The suspect was taken into custody on 1998-04-14 (see A.3 and A.4 - Cell Register and Occurrence Book);

6.2.2.3 Members of the SAPS responded timeously to the complaint (see A.9);

6.2.2.4 MULLER did in fact seek and obtain legal advice on the question as to whether it was necessary to arrest the suspect or not (see A.6, A.7, A.10, A12 and A.15);

6.2.2.5 At least two (2) members who attended at the scene were of the opinion that the suspect was under the influence of alcohol and that he should be arrested and that an instruction to this effect was issued (seeA.16 and A.17).

6.3 Conclusions:

6.3.1 Criminal Offences:

6.3.1.1 Our investigation into the abovementioned matter has uncovered insufficient evidence for the Independent Complaints Directorate (ICD) to conclude that a prima facie case exists that any member committed any criminal offence during the abovementioned incident in that no evidence could be found of any intention on the part of any member to defeat or attempt to defeat the ends of justice and it is common cause that the suspect was ultimately charged and brought before court;

6.3.1.2 Accordingly, this aspect of the complaint is "Unsubstantiated".

6.3.2 Misconduct:

6.3.2.1 Our investigation into the abovementioned matter has uncovered sufficient evidence for the Independent Complaints Directorate (ICD) to conclude that a prima facie case exists that an act(s) of misconduct were committed by INSP MULLER and INSP RAMOROKA during the abovementioned incident in that they failed to take all reasonable, necessary and prudent steps as would be expected from an experienced and prudent investigator, to obtain sufficient evidence regarding the circumstances surrounding the event to enable them to exercise their discretion whether or not to arrest the suspect in a reasonable manner.

6.3.2.2 Rather than basing their decision on the mere utterances of the suspect, they ought to have independently verified whether his version was reasonably possibly true. This is particularly relevant in respect of aspects such as whether STEYN could have been mistaken about the identity of the children due to the length of the grass as well as the quality of the information that was furnished by MULLER to SAPS Legal Services when requesting their advice as to whether the suspect should be arrested or not. It is clear that the information furnished by MULLER to BRONKHORST and PHEFO was obtained solely from the suspect and no attempt was made to verify such information in circumstances where such information could and should have been verified;

6.3.2.3 Furthermore, they ought to at least have arrested STEYN when they first met him, in order to have investigated the matter more fully. After such an investigation they would have been in a better position to decide what appropriate further steps to take e.g. take him before court to set bail, or release him without charging him until the docket had been placed before the Attorney-General for a decision as to whether to prosecute or not;

6.3.2.4 Another factor to be borne in mind is that there are numerous instances where SAPS members have effected an arrest of persons suspected to have allegedly committed far lesser and/or trivial offences e.g. traffic offences, possession of narcotics, fraud etc. This, however, was a serious offence (potentially Murder or Attempted Murder) and the victims were two (2) small children. This should have been taken into account;

6.3.2.5 At the very least, and having regard to the fact that at least two members on the scene were of the opinion that STEYN was under the influence of alcohol (see A.19 and A.21), they ought to have taken him for a blood test to ascertain his blood alcohol and to have requested him to hand over any additional firearms he may have had in his possession;

6.3.2.6 A search of STEYN’s residence should also have been conducted in order to ascertain whether he was in possession of any other firearms;

6.3.2.7 Another area of concern was the apparent insensitivity of the Duty Officer in conveying both the mother of the deceased and the suspect in the same vehicle after the incident, and failing to inform the mother of the subsequent death of her child. However, this may not be sufficient to constitute misconduct. It may indicate a need for sensitivity training amongst SAPS members, especially those dealing with serious and violent crimes.

6.3.2.8 Accordingly, this aspect of the complaint is "Substantiated".

7. RECOMMENDATIONS

7.1 In the light of the aforegoing conclusion, the ICD recommends that Insp MULLER and Insp RAMOROKA be departmentally charged under the following Disciplinary Regulations:

7.1.1 Contravention of Regulation 18(1)(c) – the members performed an act or failed to perform an act with the intention not to comply with his/her duties or responsibilities in that the members allegedly; alternatively

7.1.2 Contravention of Regulation 18(21) – the members neglected their duties or performed their functions in an improper manner in that they allegedly failed to take all reasonable and necessary steps whilst attending at a scene of crime;

7.2 In view of the negative public perception of the police based on their conduct in the past, it is particularly important that members of the SAPS be seen to be acting impartially in their treatment of persons of different races. Accordingly, it is recommended that it be impressed upon all members that it is essential that they be seen to be treating people equally in similar circumstances, irrespective of their races;

7.3 Finally, upon enquiries made to Senior Management of the SAPS, it has been established that no firm written policy or guidelines exist within the Service relating to the issue of arrest. Accordingly, it is recommended that urgent steps be taken to address this issue not only to prevent a similar incident from occurring again, but also to provide members with concrete guidelines upon which their discretion in terms of Section 40 of the Criminal Procedure Act No.51 of 1977 can be exercised.

ADV N J MELVILLE: EXECUTIVE DIRECTOR
INDEPENDENT COMPLAINTS DIRECTORATE
PRETORIA
1 JULY 1998