Deadly price of police favour

2010-04-20 13:33

THE best place for a 9mm pistol confiscated from a serial

wife-batterer with a history of threats, intimidation and violence is presumably

locked in a safe in a police registry.

Or so thought Rosina Chaba and her daughter Ivy, as they left the

Tembisa Magistrates Court on the afternoon of September 11 2005.

Theywere living in a shelter for abused women and had come to

­apply for maintenance from their estranged husband and father.

Though the case had been postponed, they were confident their

­ordeal and battle for support was drawing to a close.

Instead, they were gunned down in the dirt alongside a taxi rank by

the man they feared – and had ­secured two protection orders against.

And with a gun the police had

confiscated and locked away, and then, inexplicably, returned.

Her three desperately poor sons were this week awarded R700 000 in

damages after police were found to have acted

negligently.

The Pretoria Magistrates Court heard argument from lawyers

representing the three surviving children of Rosina Chaba on why the police, and the ministry of safety and security, should

pay for unlawfully handing Jim Thathana back his gun.

It was meant to be in police

safekeeping in terms of the provisions of the protection order granted ­under

the Domestic Violence Act.

Ironically, the case was heard in the same week SA Police Service (SAPS) brass appeared on television

heralding the successes of the latest firearms amnesty.

Though Thathana’s gun was ­licensed and legal, he would never have

got it back were it not for the ‘goodwill’ of a police captain at the Tembisa Police Station.

Without asking for documentary evidence, or calling the court, the

captain accepted the man’s explanation that the case against him had been

“finalised”, that his wife was on her way back to her ancestral village, and

that he needed the gun back for “protection” on Tembisa’s mean streets.

In court Thathana’s lawyers said he only handed the gun over for

“safekeeping” after being told it would improve his position to ­reconcile with

his wife.

Instead, he used it to lie in wait for the two women, who had dared

to sue him for financial support.

Thathana later claimed that a man accompanying his wife from the

court had opened fire on him first, though both ballistics and eyewitness

accounts did not support his claim. He was convicted in 2006 to 18 years’

imprisonment.

With both parents gone, the three sons of Rosina Chaba had no means

of financial support, and social workers packed them off to their maternal

grandmother in Maditse village outside Polokwane.

The family of seven – including three unemployed aunts – survive on

the grandmother’s pension of R1 000.

The court papers paint a bleak picture of a mother and daughter

failed by a system dedicated to protecting them. First there were the delays in

getting a protection order granted, a month after they fled their home and

sought refuge in a People Opposing Woman Abuse shelter. Then the maintenance

hearing was postponed because Thathana was “sick”.

Yet, ultimately, the deaths of the women were the result of the

negligence of the police – known in legal terms as

“vicarious liability”, in handing back the gun in breach of the terms of the

protection order.

In terms of the law, an employer, whether a state minister or

otherwise, will be held liable if the act of negligence was committed by the

employee while on duty.

Instructed by law firm Deneys Reitz, advocates Carol Steinberg and

Wim Trengove argued that that the wrongful and negligent conduct of the SAPS had

resulted in the double murders. In the circumstances, the police owed the dead women a duty of protection under

the Constitution.

Before the case could go to trial this week, the parties settled.

The three boys will be paid a sum of ­R700 000 for loss of support, emotional

trauma, and for current and ­future medical expenses.

The magistrate who granted the protection order against Thathana

told the court there was “very little sympathy and understanding on the side of

the police to the problems of women and children

who get abused”.

He concluded that whoever handed the gun back should be

disciplinary-liable, “because two people have paid the highest price for this action of the police”.



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