Police minister must pay R400,000 for unlawful arrest

The Johannesburg high court has ruled that the arrest and month-long detention of a man accused of attempted murder in 2014 was unlawful.

It ordered the minister of police to pay Thabo Jacob Tilo R400,000 in damages. However, the court dismissed Tilo’s claim for malicious prosecution.

Tilo had instituted action seeking R1m in damages — R500,000 for unlawful arrest and detention and R500,000 for malicious prosecution.

On April 1 2014, two police officers were shot at and wounded while attempting to search three suspects near Lewisham, Krugersdorp.

Both officers were admitted to hospital and later furnished statements in which they indicated they would be able to identify the perpetrators. Eleven 9mm cartridges were recovered at the scene and a 9mm bullet was surgically removed from one of the injured policemen.

Tilo was arrested at his house on April 23 2014. Police also proceeded to the home of Tilo’s friend, Thebe, where a 6.35mm firearm was recovered.

Tolo testified that he was in the outside room at his home where he lived with his pregnant girlfriend when police arrived. When he opened the door, police showed him a black-and-white photograph depicting a male wearing what appeared to be a purple jacket and black-and-white takkies.

He immediately denied he was the person in the photograph and said he did not know who the person was.

According to him, the police then accused him of having shot two police officers in Lewisham on April 1 2014, which he also denied.

Tilo testified that the police then pushed him back into the room and assaulted him. They searched the room and found a purple top belonging to his girlfriend and a pair of black-and-white takkies which were his.

No forensic testing established any link between the firearm recovered at Thebe’s residence, which was a 6.35mm pistol, and the shooting incident.

—   Judge Leonie Windell

He maintained he had no knowledge of the shooting incident and that on the night in question he had been with his friend Thebe in Randfontein.

Tilo testified that he only later became aware, from the arresting officer’s statement, that a firearm had been recovered at the residence of Thebe. He denied any knowledge of the firearm or any connection to it.

Tilo was placed in the cells and testified he was not informed of the reason for his arrest.

He described the cell conditions as dirty and overcrowded. He was provided with only a foam mattress to sleep on and a dirty blanket, and the toilets were not functioning.

Tilo testified that although a firearm was recovered at Thebe’s residence and Thebe was later charged with unlawful possession, he himself was never found in possession of any firearm. According to the charge sheet, Tilo was nevertheless charged with possession of a 6.35mm pistol.

“The forensic evidence, however, reflected that the cartridges recovered at the scene and the bullets removed from the injured police officer were 9mm rounds, and that 11 such cartridges had been fired from the same firearm.

“This demonstrated that the firearm found at Thebe’s residence was not linked to the shooting incident and that there was no evidential basis to connect him to the weapon or the offence,” judge Leonie Windell said in her judgment passed on Friday.

The charges against Tilo were provisionally withdrawn on March 12 2015. According to him, his advocate later informed him that the video footage had only then been properly considered by the prosecutors and that it showed the suspect limping. He stated that he had been unaware of the content of the footage until that stage and that, when asked to walk, he did not limp.

Windell said the probabilities suggested Tilo had already been singled out as a suspect before the search of his room was conducted.

“The arresting officer’s statement indicates that the police had received information from an informant and were in possession of still photographs said to have been derived from video footage of the incident.”

She said the subsequent discovery of clothing of a similar colour then served to reinforce that suspicion rather than to constitute an independent basis for forming it.

She said Tilo offered an innocent explanation that the purple top belonged to his girlfriend and differed in length and markings from the garment depicted in the photograph.

The evidential basis for the arrest was thus confined to unclear still photographs, the discovery of clothing of similar colour and vague references to informer information whose content and reliability were never established.

Windell said the firearm recovered during the investigation was found at the house of Tilo’s friend, Thebe. She said 11 9mm cartridges were recovered at the scene and the projectile surgically removed from the policeman was also a 9mm bullet.

“No forensic testing established any link between the firearm recovered at Thebe’s residence, which was a 6.35mm pistol, and the shooting incident.

“On the available evidence there was therefore no ballistic material connecting the plaintiff to the weapon used in the offence.”

Windell said the identification evidence of the injured officers must be approached with caution.

“Both witnesses accepted that lighting conditions at the scene were poor and that their opportunity for observation was brief and occurred in highly stressful circumstances.”

Windell said the police minister failed to establish that the arresting officer entertained a reasonable suspicion, based on objectively reasonable grounds, that Tilo had committed the offences in question.

To succeed with a claim for malicious prosecution, she said, Tilo must establish that the prosecution was instituted without reasonable and probable cause and that it was actuated by malice.

On the evidence, Tilo had not established that the prosecutors acted with such state of mind.

Windell said while the investigation and prosecution may be criticised — especially for delays and weak evidence — there was no basis to conclude that prosecutors knew there were no reasonable grounds or acted recklessly.

The evidence rather indicates that they believed that identification evidence would ultimately sustain the charges.

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