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2025
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[2025] ZANCHC 53
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KM v Minister of Police and Others (1471/2025) [2025] ZANCHC 53 (13 June 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1471/2025
Date heard: 11-06-2025
Date delivered:
13-06-2025
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
KM
Applicant
and
THE
MINISTER OF POLICE
1
st
Respondent
THE
NATIONAL COMMISSIONER OF SAPS
2
nd
Respondent
THE
STATION COMMANDER, SAPS KURUMAN
3
rd
Respondent
THE
INDEPENDENT POLICE INVESTIGATOR
4
th
Respondent
CORAM:
WILLIAMS J
JUDGMENT
WILLIAMS
J:
1.
The applicant Mr KM has brought an urgent
application in which he
seeks the following relief:
1.1
Dispensing with the forms, time limits and such further requirements
as may be applicable and prescribed by the Rules of this Honourable
Court, condoning the Applicants non-compliance therewith and
directing that this matter be heard as a matter of urgency as
contemplated in terms of Rule 6(12) of the Uniform Rules of Court.
1.2
Declaring the conduct of the state to be unlawful and unjust by
leaking personal information of the applicant to the media outlets
and to find the State to be in contravention of the constitutional
rights of the applicant
1.3
An order directing the respondents, jointly and severally, to:
a) Pay
to the applicant a once-off amount of R2 000 000 (Two
Million Rand) within 7 days of this order;
b) Such
payments to be used solely for the applicant’s relocation,
rental, security and living expenses
at a location of the applicant’s
choice, without being subjected to the Witness Protection Programme
as the applicant does
not trust the state anymore;
c)
Such amount to be paid into an account nominated by the applicant.
2.4
Leave to lead
viva voce
evidence at the hearing of this
matter.
2.5
An order allowing the applicant to only communicate with whoever that
is handling the murder case through
Teams or Zoom as he fears that
his location might be leaked.
2.6
Cost of this application not to be granted to any party.
2.
The application was initially brought
ex parte
on Monday 9
June 2025. On that day I ordered that the matter be removed
from the roll and that the applicant serve the application
on the
respondents, which he duly did.
3.
The matter was placed back on the roll on
11 June 2025 after the 1
st
to 3
rd
respondents had filed an answering affidavit to
which the applicant had replied.
4.
The background to this application can be
summarised as follows:
4.1
On 1 June 2025 the applicant witnessed the murder of his employer
in
Kuruman. It appears that he is the sole eye witness to the
incident.
4.2
The applicant made statements to the police investigating the
incident
expecting that his personal details would be kept
confidential.
4.3
He however subsequently discovered, on his family group whatsapp,
that a confidential internal police communication which contains his
name and the address where the incident occurred, which is
the
address of the applicant, had been leaked.
4.4
The above communication appears to have found its way to other social
media platforms as well.
4.5
As a result of the above and the subsequent reports of the killing
of
an alleged gangster, using the same
modus operandi
, just a few
days after the fatal shooting of his employer, which killings appear
to have been connected on the social media platform,
the applicant
now fears for his life.
4.6
The applicant alleges that he had confronted both junior and senior
police officers involved in the investigation with the publication of
his details. Although they expressed shock at the disclosure,
nothing has been done to protect him or to investigate the source of
such disclosure.
4.7
As a result of the above events the applicant has been shocked and
traumatised and had been booked off sick for a week. He has
also decided to temporarily move to a nearby town in an attempt
to
safeguard himself.
4.8
The applicant states that the police are aware of the address he
has
moved to and that he does not trust that they will keep this address
confidential in light of the previous leakage of information.
4.9
He states in his founding affidavit that the Witness Protection
Programme is not a viable option for him as it would remove his
autonomy, restrict his freedom and place him under the control of
the
very people (the police) whom he does not trust and have already
failed to protect him.
4.10
He therefore seeks monetary relief to enable him to relocate to a
place of his choice and
provide for his living expenses, security and
safety measures, therapeutic and medical support as well as loss of
earnings, for
5 years. It needs mentioning that the breakdown
of his expenses is a mere estimate and does not conform to the rules
relating
to the proof of quantum.
5.
In its opposing affidavit the 1
st
to 3
rd
respondents, the Commander in charge of the incident, Colonel
Kanakang who deposed to the affidavit, takes issue with the urgency
with which the application was brought, he seems to infer that the
urgency is of the applicant’s own making. I must
interject at this stage to mention that the application was brought
at the earliest opportunity after the applicant had been booked
off
sick by his medical practioner. There is no merit to this
allegation. He also denies that any private information
about
the applicant was disclosed by SAPS to the media or social media
platform. He questions how the applicant came to be
in
possession of an internal police communication.
6.
Colonel Kanakang confirmed that he had an
interview with the
applicant on 4 June 2025 to obtain information regarding the
deceased’s business and possible enemies.
During this
interview the Colonel states that he had enquired about the
applicant’s safety and had offered him witness protection.
The applicant declined as he did not want his freedom of movement
restricted, and informed that he will temporarily make his own
arrangements. They also agreed, if necessary, to meet at
pre-arranged venues. This apparent dispute of fact does not
take the matter any further.
7.
The Colonel states that the option of placing
the applicant in the
Witness Protection Programme is still available.
8.
The 1
st
to 3
rd
respondents deny that the
applicant has made out a case for the relief sought.
9.
In his replying affidavit the applicant denies
that the Colonel or
any of the police involved had offered him witness protection.
He states that he does not trust the police
and does not want them to
know of his location. That they have violated his
constitutional rights and put his life at risk
without displaying any
interest in investigating who within their ranks was responsible for
the leak of confidential information.
10.
In their answering affidavit the 1
st
to 3
rd
respondents referred to the official media statement released by the
police in this instance, but attached the incorrect media
statement.
I allowed Mr Visagie who appeared for the respondents an opportunity
to file a supplementary affidavit attaching
the proper media
statement, to which the applicant would have an opportunity to
respond. The respondents’ supplementary
affidavit was
filed and the attached media statement of 2 June 2025 makes no
mention of the applicant’s name, it does not
even name the
deceased. Whether this was the only media statement released is
however not clear. The applicant states
in his replying
affidavit that he has scoured the police media statements on their
Facebook pages from 1 to 3 June 2025, but that
none of the posts
reported on the shooting
in casu.
11.
Be that as it may, in my view, the only reasonable inference to be
made from the disclosure of the private police communication, is that
the leak came from within the police. How it spread
to other
social media platforms can at this stage only be speculated upon.
The police have in my view failed in their duty
to serve and protect
the applicant and at the very least have to investigate whom amongst
their ranks is/are responsible for such
a violation and deal with it
effectively.
12.
With regard to the merits of the application, the applicant has
confirmed that he has not received any threats from the police.
Though I have no doubt that the applicant’s fear is
real, there
is no real basis laid for the relief claimed.
13.
Mr Visagie has informed that the Witness Protection Programme is
not
under the control of the SAPS but of the National Prosecuting
Authority and that the applicant’s fear and distrust of
the
police, whether founded or unfounded, is misplaced as far as the
Witness Protection Programme is concerned. These submissions
made from the bar appear to be confirmed by the provisions of the
Witness Protection Act 112 of 1998 (the Act).
14.
In terms of the s 3(1) of the Act, the Minister of Justice, not the
Minister of Police, appoints the Director: Office for Witness
Protection, who exercises the powers, perform the functions and carry
out the duties conferred upon him/her under the Act subject to the
control and directions of the Minister (s3(2)) – in effect
the
NPA.
15.
In terms of s7(1) (a) (iv) and (v) of the Act, an application for
witness protection can be made to the Public Prosecutor or to any
member of the Office for Witness Protection (without involving
the
police).
16.
In terms of s17 of the Act, the Director of the Office for Witness
Protection and every member of the Office must, upon taking office,
take an oath or make an affirmation to honour the obligation
of
confidentiality imposed under the provisions of the Act.
17.
It is clear from the above that SAPS is not in control of the Witness
Protection Programme and that the applicant’s fears in this
regard are unfounded.
18.
There being a statutory remedy available to the applicant, which
does
not involve SAPS, the applicant has failed to make out a case for the
extraordinary relief sought. That being the case,
the
application must fail.
19.
As far as costs are concerned, this is not a case where costs should
follow the result. The application was brought by a layperson
who has been failed by SAPS. Their leaking of confidential
information has been the cause of this application. The
applicant should not be saddled with the costs of this application.
The following order is
made:
a)
The application is dismissed.
b)
There is no order as to costs.
CC
WILLIAMS
JUDGE
For
Applicant:
In
Person
For
Plaintiff:
Mr
Visagie
Office
of the State Attorney