Minister of Police and Others v Phoka (14823/2021) [2025] ZAGPJHC 562 (5 June 2025)
The court held that the police were required to make prior inquiries into the criminal capacity of the accused, who was thirteen years old at the time of the alleged offence, before arresting him. The mere fact that a complaint was made by the victim's mother, seven years after the incident, did not constitute...
Source-derived case information.
- Citation
- [2025] ZAGPJHC 562
- Parties
- Applicant: Minister of Police; Applicant: National Commissioner; Applicant: Gauteng Provincial Commissioner; Applicant: National Director of Public Prosecutions; Respondent: Zwane Katleho Phoka
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 14823/2021
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Against Part of Judgment and Orders
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- M.M Mabesele
- Legal Topics
- Arrest Without Warrant, Criminal Capacity of Minors, Leave to Appeal, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Police
Applicant
National Commissioner
Applicant
Gauteng Provincial Commissioner
Applicant
National Director of Public Prosecutions
Applicant
Zwane Katleho Phoka
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Part of Judgment and Orders
Legal Issues
- 1 Whether the police had reasonable suspicion to arrest a thirteen-year-old accused for rape without prior inquiry into criminal capacity.
- 2 Whether leave to appeal should be granted where the applicants have no prospects of success.
- 3 Whether costs should be awarded against the applicants.
Ratio Decidendi
The court held that the police were required to make prior inquiries into the criminal capacity of the accused, who was thirteen years old at the time of the alleged offence, before arresting him. The mere fact that a complaint was made by the victim's mother, seven years after the incident, did not constitute reasonable suspicion sufficient to justify arrest without further investigation. The police should have sought guidance from the prosecution. The applicants failed to demonstrate prospects of success on appeal or compelling reasons for leave to appeal. The application for leave to appeal was dismissed, and costs were awarded against the applicants on scale B, including counsel's fees.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The first, second, and third applicants are ordered to pay the respondent's costs on scale B, jointly and severally, the one paying the other to be absolved.
Full Case Text
Judgment text and source record
36 paragraphs
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
1ST APPLICANT
THE NATIONAL COMMISSONER
2ND APPLICANT
SOUTH AFRICAN POLICE SERVICES
THE GAUTENG PROVINCIAL COMMISSIONER 3RD APPLICANT
SOUTH AFRICAN POLICE SERVICE
THE NATIONAL DIRECTOR OF
4TH 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 4th 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.
[1] Emphasis