In a landmark for the rights of children, the Constitutional Court has ruled in favour for a child to claim damages from the State – because the police had not considered her best interests when they arrested her and kept her in a cell overnight.
The court upheld her right as a child to not be detained, except as a measure of last resort.
Constitutional Court Judge Lebotsang Bosielo, supported by other Concourt judges, ruled that the Johannesburg teenager, known as MR, could now go ahead with a claim for damages against the State.
MR was arrested without a warrant in April 2008. She was 15 years old at the time.
In the ruling, Judge Bosielo referred to a police officer who said he would arrest MR even if she was a child, because he considered it his job to make an arrest and her being a minor made no difference.
The judge also alluded to South Africa’s “dark and painful” history where oppression, abuse of state power and wholesale denial of people’s human rights was the order of the day and where police, in maintaining the regime, resorted to brute force to arrest and detain.
“This is a culture which our constitution aspires to eradicate and replace with a culture of human rights permeating through all facets of our lives.”
The Centre for Child Law (CCL) was part of the case as a friend of the court for MR and argued that the constitutional right of children “not to be detained, except as a measure of last resort”, should be interpreted broadly to include arrest as well as detention.
The CCL told the court the police officers had failed to exercise their power of arrest properly.
“There is a duty on each police officer to consider the best interest of the child whenever the police officer is confronted with having to make the decision whether to arrest the child or not,” said CCL director Ann Skelton.
She said police officers must consider if there are less severe methods than arrest, including other methods prescribed by the Child Justice Act.
In April 2008, police officers responded to a complaint of assault and resultant breach of a protection order against MR’s mother.
When her mother was arrested, MR allegedly intervened, prompting her arrest. She and her mother were detained at the Brixton police station for 19 hours before being released on a warning.
The public prosecutor declined to press charges, but MR lodged a complaint in the South Gauteng High Court for damages arising from her arrest and detention.
After the high court dismissed her claim, she appealed to the full Bench of the high court and then the Supreme Court of Appeal, before approaching the Concourt‚ where she argued that her rights as a child had been violated.
Skelton said the fact that her father was present throughout the arrest, and went to the police station and requested she be released into his custody, meant that the decision to arrest her was irrational.
During the hearing the State conceded the arrest and detention of the applicant was unlawful, and police officers had failed to prove that the applicant acted wilfully.
Judge Bosielo said the constitution “seeks to insulate (children) from the trauma of an arrest by demanding in peremptory terms that even when a child has to be arrested, his or her best interests must be accorded paramount importance”.
Children rights advocacy group Molo Songololo expressed concern that police authorities are not adhering to guidelines for dealing with minors in conflict with the law.
Molo Songololo director Patric Solomons said: “SA law is very clear and the guidelines for police and children in conflict with the law are upheld internationally. The concern is that these laws and guidelines are not being adhered to.”
Solomons said there are certain cases where police need to use force to deal with “violent children”.
Police spokesperson Mashadi Selepe said the SAPS have “specific guidelines” for the arrest of minors. “We have specially trained personnel to deal with special cases, but generally all officers are expected to follow procedure.”
– Cape Times