Police and NPA liable for murder by man out on bail

The Gqeberha High Court has ruled that the Minister of Police and National Director of Public Prosecutions are liable to pay damages for negligence to the family of a man murdered by a man out on bail. Illustration: Bronwyn Webb

• Clint Ovrenovitz was murdered by a man who was out on bail for another murder.
• The Gqeberha High Court has found the Minister of Police and National Director of Public Prosecutions liable for damages to Ovrenovitz’s family.
• Police and prosecutors failed to properly investigate Siphumele Phethelo’s criminal record and bail status, despite him being regarded as a “most wanted” criminal and having breached his bail conditions.
• The amount of compensation owed to Ovrenovitz’s widow and two children will be determined through negotiation or a separate trial.

In December 2014, 42-year-old plumber Clint Ovrenovitz was murdered while fishing at the Swartkops River in Gqeberha by two men, one of whom was out on bail for murder and was considered by police to be among their “most wanted” criminals.

Now the Gqeberha High Court has ruled that the Minister of Police and National Director of Public Prosecutions (NDPP) are liable to pay damages for negligence to Ovrenovitz’s widow and her two, now adult, children.

The amount to be paid is still to be determined, either through negotiation or at a separate trial.

Judge Bantubonke Tokota heard the family’s liability claim earlier this year and handed down his judgment, which only recently came to light, in July.

It examined the actions of Siphumelele Phethelo, who was eventually convicted of murder and other charges, and sentenced to life imprisonment.

Phethelo was 21 when he was arrested for the murder of Ovrenovitz. He and his co-accused “reeked of alcohol” and were found in possession of Ovrenovitz’s wallet, the criminal trial revealed.

It emerged during his bail hearing that he was, at the time, on bail in connection with another murder.

In 2016, Claire Ovrenovitz and her two children launched civil proceedings against the minister and the NDPP for negligence.

In her evidence before Judge Tokota, she said her husband, a plumber, was the breadwinner. He was a keen fisherman and they had been happily married. Had the authorities done their jobs properly, her husband would be alive, she said.

During the trial, the state defendants, who denied any liability, said Phethelo was arrested in June 2013 for the murder of a Mr Henry. He was released on bail later that month.

While on bail, he was again arrested for assault with intent to do grievous bodily harm.

In November 2013, he twice failed to appear in court for the Henry murder. His bail was cancelled and a warrant issued for his arrest. Later that month, he was convicted on the assault charge and given a suspended sentence.

On 14 January 2014, he was arrested for the Henry murder charge. He applied for bail the next day. His assault conviction from November 2013 had not yet been uploaded on the criminal record system (SAP69), although SAPS’s policy was that an investigating officer must submit the results of a trial to the criminal record centre within seven days.

He was granted bail for R300. He paid it in April 2014 and was released from custody.

The prosecutor who handled the matter said Phethelo had made an affidavit in support of bail, stating that he was going to plead not guilty and he had no previous convictions.

The investigating officer did not object to bail and according to the SAP69, which was in the docket, he had no previous convictions.

In December 2014, Phethelo robbed and murdered Ovrenovitz. He was convicted of the crime in 2016.

Judge Tokota said it was common cause that Phethelo was on bail in respect of the Henry murder charge and that he had lied when he stated he had no previous convictions.

The judge said it was also common cause that the defendants had a legal duty to the Ovrenovitz family to ensure that Phethelo was dealt with in terms of the law after he was arrested for breach of his conditions of bail in the Henry murder matter.

The prosecutor had a statutory duty to charge him criminally for failing to appear in court while he was on bail.

“When Phethelo was brought to court on a warrant of arrest on 14 January 2014, it was not enough for the prosecutor to merely hand over the warrant and accept the investigator’s opinion … He [the investigating officer] knew he was dealing with a ‘most wanted’ criminal.

“He knew Phethelo was a violent person, yet he failed to investigate whether or not he had any previous criminal records.

“Phethelo only paid bail on 22 April 2014. The records were updated on 24 January 2014 and therefore his criminal record was available before he was released.”

Judge Tokota said that, given that Phethelo was a “most wanted” criminal, he had skipped bail, and had committed a violent crime while on bail, the investigating officer and prosecutors had a legal duty to properly investigate the situation, especially in light of the fact that the SAP69 had been updated on 24 January 2014.

He ruled that the minister and the NDPP are liable to pay damages to the family and pay costs.

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