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Judge spells it out to false rape victims that police can arrest on reasonable suspicion

Judge Elmarie van der Schyff says it should be considered that the charge that the trio faced, albeit it turned out to be false, was serious.Image: Supplied

Judge Elmarie van der Schyff says it should be considered that the charge that the trio faced, albeit it turned out to be false, was serious.Image: Supplied

Published Jun 13, 2022


Three men from Tsakane, Gauteng, who spent 15 days in jail after being arrested over a false gang rape charge have lost their R3 million civil claim against the police with costs.

Judge Elmarie van der Schyff of the North Gauteng High Court dismissed the claim by Tsietsi Malatjie, Tebogo Smith and Phakamile Xubazane on grounds that, contrary to their argument, the police did not have to conduct a thorough investigation before making arrests.

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In a judgment delivered this week, Judge Van der Schyff said the Criminal Procedure Act (CPA) and a recent jurisprudence from the Supreme Court of Appeal (SCA) spoke volumes that police can effect arrest based on reasonable suspicion that a crime was committed.

She also considered that the charge that the trio faced, albeit it turned out to be false, was serious.

“The plaintiffs’ counsel submitted that the investigating officer failed to conduct a thorough investigation before the plaintiffs were arrested,” Judge Van der Schyff pointed out.

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“The SCA’s explanation in Biyela (recent judgment) is indicative thereof that it is not required that the police must first conduct a thorough investigation before a suspect may be arrested.

“The jurisdictional requirement is that a reasonable suspicion must exist,” she said.

“The defendant proved on a balance of probabilities that the arrest was lawful and in accordance with the requirements of section 40(1)(b) of the CPA.”

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The reasonable suspicion in this case emanated from the fact that the woman who opened the rape case against the trio repeated her claim before the arresting officer, identified as Captain Kgomo.

She opened the case at the Tsakane police station on August 4, 2019, saying she was kidnapped by the three men and gang raped.

Malatjie, Smith and Xubazane were arrested two days later. Their arrest followed their visit to the police station to complain against the woman’s boyfriend whom they accused of threatening them with violence for the “rape”.

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Kgomo travelled with them to the woman and her boyfriend. The woman told Kgomo the trio were the men who raped her and showed him the case number she received at the police station two days earlier.

The captain submitted before Judge Van der Schyff that the case number and the woman’s verbal statement that the trio were her rapists provided reasonable suspicion for him to effect arrests.

He also told the judge that he considered the seriousness of the alleged crime.

Some 13 days after the detaining of Malatjie, Smith and Xubazane pending a bail hearing, the woman confessed to police that she had lied.

She dropped the charges and was charged and arrested for perjury. The three were released two days after her confession.

Judge Van der Schyff also found that Kgomo acted properly to consider the seriousness of the allegation against the trio.

“It is trite that violence against women and children in South Africa is endemic. The rape in question falls within Schedule 6 because the complainant alleged that she was raped by three assailants,” she said.

“The serious nature of the offence outweighs the fact that the plaintiffs’ places of residence were known to Captain Kgomo, or that they reported to the police station out of their own volition in circumstances where they complained about threats of violence levelled against them.

“Captain Kgomo’s decision that the plaintiffs had to be detained because of the fact that the offence in question is a serious offence and because the complainant identified the three plaintiffs as the assailants cannot be faulted.”

Judge Van der Schyff ordered Malatjie, Smith and Xubazane to foot the legal costs, including those of two senior counsel who appeared for them and the police.


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