Concluded Cases

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Concluded Case 98GT000230
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Report on status of cases 6-3-00
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Republic of South Africa
INDEPENDENT COMPLAINTS DIRECTORATE
Executive Summary

1.    COMPLAINT IDENTIFICATION

2. SOURCE OF THE COMPLAINT

The ICD first heard of the shooting incident on the 05h00 News bulletin on Radio 702 on 1998-08-19.

3. ALLEGATIONS OF COMPLAINT

3.1 Summary of allegations:

It is alleged that on 1998-08-18, at about 20h30, eight members of the SAPS Special Investigation Unit stationed in Pretoria arrested Josiah "Fingers" RABOTAPI (hereinafter referred to as the deceased) at Dobsonville. He was allegedly taken out on investigation to an alleged hideout in a townhouse known as No 22 Blues, 88 Katherine Street, Sandown where he had allegedly hidden an AK47 rifle and a large amount of cash. It is further alleged that when the SAPS members arrived at the townhouse, the deceased gave them the keys and also told the members of the SAPS that there was another suspect in the dwelling. Five (5) SAPS members went inside to investigate. When they returned empty handed, the deceased then told them that the suspect might be at Sandton City. Five (5) members of the investigative team proceeded to Sandton City. The deceased complained of pain in his shoulder and the remaining members agreed to handcuff his hands in front of him.

The remaining three (3) policemen, together with the deceased, entered the flat to search for the AK47 and the cash. It is alleged that while they were moving towards the headboard, the deceased, who was at the foot of the bed and still handcuffed, armed himself with a firearm that was apparently concealed in a sports bag on the bed. The deceased allegedly pointed the firearm at the officers. The officers reacted by discharging their service pistols at him. They were not sure who fired first, them or the deceased, as everything happened very quickly. The members allegedly fired four (4) shots and the deceased died on the scene. An inquest docket, vide Bramley CR 327/08/98 was opened. The same morning 1998-08-19, the docket was taken over by the ICD for full investigation.

4. ICD RESPONSE TO COMPLAINT

It was decided that the matter, being a Class I, and a high profile complaint, would be assigned to the Special Investigation Unit of the ICD for full investigation.

5. SUMMARY OF ICD ACTIVITY

During the course of its investigations, the ICD conducted interviews with numerous witnesses, obtained their statements, obtained various experts reports and reconstructed the scene of crime.

6. ANALYSIS OF EVIDENCE

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

6.2.1 Documentary Evidence:

6.2.1.1 The two (2) pathologists who conducted post-mortems on the deceased (See A.18 and A.20) were in agreement that the deceased died as a result of gunshot wounds (x2) of the chest and gunshot wound (x1) through the abdomen;

6.2.1.2 Both noted a 16mm laceration on the right eyebrow with significant abraded edges, a 20mm x 15mm area of bruising at the outer corner of the eye involving the upper and lower eyelids and a deep bruising on the right side of the forehead on the skull which was related to the abovementioned laceration (See Photo’s 2 and 3 of A.18 and Photo’s 1, 2, 20 of A.20) ;

6.2.1.3 In addition, both pathologists were in agreement that there was an entry wound in the back of the deceased (See Photo 8 of A.18 and Photo’s 12 and 14 of A.20);

6.2.1.4 The ballistic reports (See A.27 and A.29) confirm that the service pistols carried by PRINSLOO and VAN ZYL were fired at the scene and all the cartridge cases and projectiles discovered at the scene were fired from one of those two firearms. No other firearms were fired. It is also reported in the ballistic report that the shots were fired from a distance of seventy (70) centimeters, there is a possibility that one shot was fired at contact, or the bullet was unstable when it struck the deceased;

6.2.1.5 WOLMARANS (See A.29), after reconstructing the scene, has postulated the following scenario of events:

6.2.1.5.1 That the deceased was assaulted during his arrest which would provide an explanation for the wound on his forehead (See paragraph 6.2.1.2 above) and that the blood which is visible on Photo’s 3 and 4 of the SAPS Photo Album (See A.16) could have originated from this wound;

6.2.1.5.2 That the deceased could have stood at the foot of the bed as alleged seeing that there is blood visible on the bed next to the bag (See Photo’s 3 and 4 of A.16);

6.2.1.5.3 That the deceased was leaning over the bed when he removed the firearm from the bag and pointed it at the members;

6.2.1.5.4 That PRINSLOO noticed this and fired a shot in great haste in the direction of the deceased, but as a result of the defect mentioned in paragraph 6.2.2.3.2 below could only fire one shot. This shot was fired into the bed through the mattress and not in the direction of the deceased as intended by PRINSLOO;

6.2.1.5.5 That VAN ZYL, who was at that stage close to the deceased, fired three (3) shots at him;

6.2.1.5.6 That the first shot hit the deceased while he was still in a half-bending position over the bed (See Photo 6 (Wound 6) of A.18);

6.2.1.5.7 That the second shot struck the deceased in the chest and exited from his back (See Photo’s 4,5 and 8 of A.18);

6.2.1.5.8 That whilst the member’s body was moving in the direction of the deceased, he fired the third shot which struck the deceased in the back and exited from his left upper arm.

6.2.1.6 WOLMARANS concludes that there is support for the version of the members.

6.2.2 Statements:

6.2.2.1 According to the witness statements and the statements of the members of the South African Police Service, the suspect (Mokgwaedi Josiah RABOTAPI @ Fingers and Ntoana) was arrested on 1998-08-18 in Dobsonville in an outside room, as a direct result of information received through an informer.

6.2.2.2 "Fingers" was arrested and interrogated. "Fingers" took the team of Police officials to a townhouse, situated at No. 22 Blues, 88 Katherine Street, Sandton. "Fingers" informed them that there was another suspect in the townhouse. Five (5) members of the team searched the townhouse but came up empty handed. "Fingers" informed the team that the suspect could be at Sandton City or Illovo.

6.2.2.3 Five (5) members of the team set off to Illovo. Three (3) team members remained behind with "Fingers". "Fingers" informed them that there was an AK 47 rifle and money hidden behind the headboard of the bed in the main bedroom. The three (3) members accompanied "Fingers" into the townhouse, however only Capt PRINSLOO and Insp VAN ZYL accompanied "Fingers" to the main bedroom. As they approached the headboard "Fingers" remained at the foot of the bed. He suddenly bent down and armed himself with a pistol. The members reacted and shot "Fingers" wounding him fatally.

6.2.2.4 Before the other team members could reach Illovo they had to return due to the shooting incident. Capt PRINSLOO informed them by means of a cellular phone call to Insp KUKARD’s cellular phone.

6.2.2.5 Notwithstanding the above, there are a number of improbabilities and inconsistencies contained in the version of the SAPS investigating team and there are many serious questions that remain unanswered. It must be said that this is due mainly to the refusal on the part of the members involved to make themselves available to be interviewed by ICD investigative staff. Be that as it may, the following aspects have not been dealt with by the members involved and as a result are not clear from the statements available to the ICD:

6.2.2.5.1 No explanation has been furnished as to why the investigative team, which was comprised of highly experienced investigators from Brixton Murder and Robbery Unit and the National Special Investigation Unit, would have attended at a scene where a suspect was going to point out certain exhibits inter alia, an AK47 and a large amount of cash, without the assistance of a video unit to record the pointing out. This would have removed any doubt at a later stage should any exhibits have been found and would have strengthened their case against the suspect had the matter gone to court;

6.2.2.5.2 It also appears as if the first team that entered the townhouse failed to properly search and secure the premises. The evidence available indicates that the bag from which the deceased allegedly obtained a firearm was clearly visible on the bed in the main bedroom and should, in the circumstances have appeared suspicious to experienced investigators. Had they searched the bag and found the firearm, the deceased may well still have been alive today;

6.2.2.5.3 It is also apparent that the deceased was not guarded closely enough during the search at the townhouse. Notwithstanding the fact that he was a notorious criminal, highly dangerous and had managed to escape a number of times from custody, the team conducting the search not only deemed it fit to allow one member to search another room where nobody was present, but both members who were in the presence of the deceased were distracted by him and took their attention off him. Under the circumstances it would certainly have been most prudent to have at least one member of the team constantly guarding the deceased and at least to have a firearm trained on him at all times. The fact that the deceased, in the presence of two (2) experienced investigators, and whilst handcuffed, managed to get hold of a firearm and point it at them, certainly indicates that insufficient precautions were taken to secure and guard the deceased;

6.2.2.5.4 This also raises the question as to why PRETORIUS was allowed to search a room of the townhouse when the deceased was not present. PRETORIUS should have assisted the other two (2) members to guard the deceased. If the members saw fit to do this, then what prevented them from searching the bag on the bed in the absence of the deceased?

6.2.2.5.5 It is also unclear as to why the majority of the investigative team left the townhouse to search for another suspect, given the dangerous nature of the deceased and his propensity to escape from custody. If indeed the team had felt that it was necessary to search for the other suspect, would it not have been more prudent to call for assistance in the form of additional members to assist in guarding the deceased? Even Director ENGELBRECHT (See A.31) expressed his fear that the deceased might escape from custody at a Police Station;

6.2.2.5.6 Doubt has also been cast on the existence of the firearm allegedly in the possession of the deceased. THABO (See A.24) has stated that the brown bag in which the firearm was allegedly concealed belonged to him and that he had used it to travel to Cape Town. He states that on the morning of the shooting he removed some clothes from the bag and he did not notice any firearm in the bag;

6.2.2.5.7 The explanation furnished by the members as to why the deceased was handcuffed in front of his body is also inconsistent with the evidence available. The reason furnished for doing this was that the deceased complained of pain in his shoulder from a previous injury. The members’ apparent compassion for the plight of the deceased in this regard is entirely inconsistent with the fact that the photographs taken of the deceased at the post-mortem reveal a laceration on the right eyebrow with significant abraded edges, bruising at the outer corner of the eye and related deep bruising on the right side of the forehead (See paragraph 6.2.1.2 above).

Although it is not clear when and how the deceased sustained this injury, WOLMARANS (See A.29), is of the opinion that this wound could have been caused by an assault on the deceased during his arrest. There is support for this opinion if one has regards to the trail of blood at the entrance to the bedroom and the spots of blood on the duvet near the bag (See Photo’s 3 and 4 of A.16), which indicate that the deceased was bleeding at the time that he entered the room and prior to being shot. In any event, it appears as if the members were unconcerned about this injury as no mention is made of any assistance or medical attention offered to the deceased in this regard. In addition, it needs mentioning that to handcuff a prisoner in front of his body is contrary to standard SAPS Procedure (See Standing Order (G) 341.20);

6.2.2.5.8 The evidence also clearly indicates that the deceased was already in possession of the alleged firearm and pointing it at the members when they noticed it and drew their own firearms. The evidence also indicates that the firearm was cocked and there was a round in the chamber (it is unclear whether the safety catch was on or off at the time). It seems unlikely that the members were able to draw their weapons and fire four (4) shots at the deceased before he was able to fire even one (1) shot at them. The evidence of the ballistic experts is that no shot was fired from the deceased’s firearm;

6.2.2.5.9 Lastly, of some concern is the fact that the post-mortem revealed an entry wound in the deceased’s back. This conflicts directly with the version of the members who claim that they and the deceased were facing each other at the time of the shooting.

6.2.2.3 On the other hand, however, the evidence does also reveal certain consistencies which would tend to support the version of the members involved and in fairness these are mentioned below:

6.2.2.3.1 The ballistic report of Mr WOLMARANS (See A.29) concludes that the information contained in the statements of the members involved in the shooting, although limited, is correct, in that microscopic examination of the cartridge cases confirm that the one member fired one(1) shot and the other member fired three (3) shots. This is also confirmed in the ballistic report of VISSER (See A.27);

6.2.2.3.2 WOLMARANS concludes further that the one (1) shot fired by PRINSLOO (See A.13) was fired hastily if one looks at where the shot was fired, and that the allegation that his firearm jammed could also possibly be correct because the projectile that was found at the scene and which was fired from his weapon (a 9mmK calibre) was a 9mmP cartridge and this could have resulted in his weapon jamming;

6.2.2.3.3 The reconstruction of the scene revealed that events could have transpired in the manner alleged by the members involved (See paragraphs 6.2.1.5.1 to 6.2.1.5.8 above). This scenario would also explain the entry wound in the deceased’s back;

6.2.2.3.4 It cannot be refuted that the Duty Officer found an unlicensed firearm at the scene and that the serial number thereon had been removed. The presence of this firearm was confirmed by numerous witnesses;

6.2.2.3.5 The members involved in the shooting incident made prior consistent statements (See A.31);

6.3.1 Criminal Offences:

6.3.1.1 Murder:

6.3.1.1.1 As far as this offence is concerned, having regard to the abovementioned evidence, our investigation into the abovementioned matter has uncovered insufficient evidence for the Independent Complaints Directorate (ICD) to conclude, that a prima facie criminal case exists.

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

6.3.1.2 Assault with intent to do grievous bodily harm:

6.3.1.1.1 As far as this offence is concerned, having regard to the abovementioned evidence, our investigation into the abovementioned matter has uncovered sufficient evidence for the Independent Complaints Directorate (ICD) to conclude, that a prima facie criminal case exists in that there is evidence that the deceased sustained a laceration above his right eye and that this injury more than likely occurred during his arrest and prior to his being shot.

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

6.3.2 Misconduct:

This aspect of our investigation is not yet completed.

7. RECOMMENDATIONS:

7.1 It is recommended that, in the light of the numerous improbabilities, inconsistencies and unanswered questions referred to in this report, this case be sent to the Director of Public Prosecutions for his decision.

7.2 It is furthermore recommended that, in the light of the publicity that this case has attracted, it would be in the public interest for a formal inquest to be held and that all relevant parties are subpoenaed to give oral evidence at such inquest.

7.3 It is recommended that, as far as our finding in respect of a potential assault is concerned, that this aspect, being of a less serious nature, stand over until there is a decision as to whether the deceased’s death was wrongfully caused.

7.4 It is further recommended that should there be a formal inquest in this matter, the ICD be deemed to have a substantial and peculiar interest in such inquest proceedings in terms of Section 11(2) of the Inquests Act 58 of 1959, in order that it may put such questions to a witness giving evidence at such inquest as the judicial officer may allow.

7.5 It is also recommended that, in view of the problems experienced by both the SAPS and the ICD regarding timeous notification of incidents such as this and similar incidents, that a better and more efficient system of notification be agreed upon between the two parties.

ADV N J MELVILLE: EXECUTIVE DIRECTOR
INDEPENDENT COMPLAINTS DIRECTORATE
PRETORIA
125 NOVEMBER 1998