THE Constitutional Court on Thursday heard argument on whether the Constitution demanded that arrest should be the last resort when it came to children.
While the Constitution is clear that children should only be put in detention as a last resort, the court grappled with the question whether the same principle should apply to arrest.
Michell Raduvha was 15 when she was arrested and kept in custody for 19 hours for trying to intervene when the police were arresting her mother. Her counsel, Daniel Berger SC, said the way she was treated during her detention "sends a shiver down one’s spine".
He said both the detention and the arrest were unlawful because they were not the last resort available to the police. Her father was there throughout the incident and she could have been delivered into his custody.
Though the South African Police Service successfully defended the conduct of its officers in the high court and on appeal to the Supreme Court of Appeal, at the Constitutional Court the police conceded that both the arrest and the detention of Ms Raduvha were unlawful.
However, counsel for the police, Dawie Joubert SC, said arrest and detention should not be conflated conceptually. He said that, on arrest, the police had a duty to exercise discretion, so the police could still be held to account for an unlawful arrest.
But Mr Berger argued that an arrest was a "continuing act", and every arrest had a component of detention in it, he said. He said if an option other than arrest was available, police officers had no discretion; they had to take that option.
The bench asked Mr Berger why the Constitution seemed to make a distinction between arrest and detention in section 35, which deals with the rights of arrested and detained people.
Deputy Chief Justice Dikgang Moseneke suggested that arrest was different to detention because arrests were made "on the hop", with police officers on the ground having to make decisions quickly and sometimes in less than ideal circumstances. Detention was "slower" and done later, "with more time to consider".
Ann Skelton for the Centre for Child Law agreed with Mr Berger that the court should interpret the law to require arrest of a child as a last resort. She said this should not be seen as a requirement on its own, but as one of the factors a police officer must consider when exercising his discretion in arresting a child.
It was "not a very big step" for the court to take, as it was in line with international law and the existing police standing order.
Ms Skelton said the time between arrest and detention was a "dangerous time" for children. "Police vans are not safe places for children," she said.
Judgment was reserved.