'Framed' farmer wins case

2007-01-29 09:16

Johannesburg - National police commissioner Jackie Selebi and an Alexandria policeman have been ordered by the Grahamstown High Court to pay at least R200 000 in damages and legal fees to an Alexandria lawyer and farmer for unlawful criminal prosecution relating to the shooting of a worker on a family member's farm.

The ruling in favour of Gustav Joubert follows a shooting incident near Alexandria on April 30 2002, The Herald Online reported on Monday.

On that day, Joubert - a director of the law firm De Jager and Lordan in Alexandria - was called to assist on the farm of neighbour Boetie Muller, who is also his wife's uncle, where a labourer had apparently been hit accidentally when someone shot at dogs with a hunting rifle.

Muller, his son Naat Muller and Joubert were charged with the attempted murder of Phunia Kitsana and defeating the ends of justice. They were later tried in the Port Alfred regional court, but all three were acquitted in 2004.

Court believed him

Joubert sued the police for damages relating to malicious prosecution on the grounds that sworn affidavits by the investigating officer, Gordon Hendricks, had been falsified to implicate him in covering up the shooting.

Hendricks said he had discussed the shooting with Joubert a few days after the incident and Joubert had said he had no knowledge of the victim's whereabouts.

Joubert said no such conversation had taken place because he had been in Cape Town for a medical procedure, and he had in fact taken the victim to Livingstone Hospital in his own vehicle shortly after the shooting. He had also, as an officer of the court, informed the police of the incident.

Judge Josh Jones agreed with Joubert's legal counsel that the police had made deliberately false allegations in the affidavits, which gave rise to his prosecution.

He also agreed that Joubert had proved he had been in Cape Town and could not have spoken to Hendricks at the court in Alexandria, as claimed in police reports.

"It follows that he has proved on a balance of probabilities that his prosecution was without reasonable and probable cause and was intentional and maliciously wrongful," Jones said.

A possible reason for the false allegations mentioned in the criminal trial was the fact that Joubert was instrumental in starting disciplinary action against a police officer's wife during a labour-related dispute in Alexandria.

Jones said the criminal action against Joubert could have had an effect on his feelings, reputation, professional integrity and position in society, but he had never testified about this.

He ruled that in the absence of testimony by Joubert about the effect of the unlawful prosecution on his life, Selebi and Hendricks should pay Joubert R75 000 in damages, with interest, within 14 days.

Jones also ordered payment of all legal costs in the criminal matter against Joubert. The police will also pay all the costs of the civil matter that followed the unlawful prosecution.

- SAPA