Picture: THINKSTOCK
Picture: THINKSTOCK

THE right of a child not to be detained except as a measure of last resort have been confirmed by the Constitutional Court‚ which ruled on Thursday that a Johannesburg teenager could go ahead with a claim for damages against the state.

Joyce Raduvha wants damages from the Minister of Safety and Security after she was arrested without a warrant. She was 15 years old at the time.

The police officers were responding to a complaint of assault and resultant breach of a protection order against her mother in April 2008. When her mother was arrested‚ the teen physically intervened and was ultimately arrested for obstructing the police officers.

She and her mother were detained together in a cell at Brixton Police Station for a period of 19 hours. Both were released on warning the next day. The Public Prosecutor later declined to press charges.

Raduvha instituted an action in the South Gauteng High Court for damages arising from her arrest and detention. But the High Court dismissed her claim on the grounds that her arrest and detention were lawful. An appeal to the Full Court was unsuccessful and the Supreme Court of Appeal refused to grant her leave to appeal. She then took her case to the Constitutional Court.

In the highest court of the land‚ she argued that her right as a child was violated.

The fact that her father was present throughout the arrest and went to the police station and requested her to be released into his custody meant that the decision to arrest her was irrational‚ and that her continued detention could also not be justified. She argued that the police should have considered all possible alternatives when arresting and detaining her and that arrest should have been a last resort.

The Centre for Child Law‚ having been admitted as a friend of the Court‚ argued that the constitutional right of children "not to be detained except as a measure of last resort" should‚ in the light of international legal instruments‚ be interpreted broadly so as to include an arrest as well as detention. It argued that the police officers failed to exercise their power of arrest properly.

During the hearing‚ the Minister conceded that the arrest and detention of the applicant were unlawful. It was also conceded that the police officers had failed to prove that the applicant had acted wilfully. The police officers also failed to consider the applicant’s best interests in terms of section 28(2) of the Constitution in exercising their discretion to arrest her. It was also conceded that the applicant’s detention was not a measure of last resort as required by section 28(1)(g) of the Constitution.

In a unanimous judgment on Thursday‚ handed down by Judge Lebotsang Bosielo‚ the Constitutional Court upheld the appeal and found that the arrest and detention were unlawful.

The Constitutional Court stated that while police officers have a discretion to arrest‚ this discretion must be properly exercised in accordance with the facts of the case and the dictates of the Bill of Rights.

Since the police officers failed to consider her best interests as a child in exercising their discretion to arrest her‚ the arrest was unlawful. The court also held that her detention was unlawful. Her father was at the station and willing to take her home. As a result‚ the police officers’ decision to detain her was not a measure of last resort and was, as a result, inconsistent with the Constitution and invalid.

Judge Bosielo commented that 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".

"Given the importance which our Constitution places on the rights of children‚ this means that an arrest of a child should be resorted to when the facts are such that there is no other less invasive way of securing the attendance of such a child before a court. This requires police officers to consider and weigh all the facts carefully and exercise a value-judgment whether an arrest can be justified…

"Does this mean that children shall‚ under no circumstances‚ be arrested or detained? The answer is no. For it is a fact that children do commit crimes. Even heinous crimes, for that matter. Statistics can attest to this. Sad as it might be‚ it is a reality of our times.

"All that the Constitution requires is that‚ unlike pre-1994‚ and in line with our solemn undertaking as a nation to create a new and caring society‚ children should be treated as children – with care‚ compassion‚ empathy and understanding of their vulnerability and inherent frailties. Even when they are in conflict with the law‚ we should not permit the hand of the law to fall hard on them like a sledgehammer, lest we destroy them. The Constitution demands that our criminal justice system should be child-sensitive."

In the Raduvha case‚ the judge said of the police: "… They did not consider the crucial facts that she was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home; and‚ importantly, that her father was present with them … If the police officers had considered (a child’s) best interests‚ there would have been no reason for them to arrest her. They could have resorted to section 38 of the Criminal Procedures Act‚ by either issuing a summons‚ a written notice or‚ as her father was present‚ leaving her in his custody with instructions for him to bring her to court. It follows that (her) arrest is inconsistent with the Constitution and therefore unlawful."

The Constitutional Court ordered that the matter be remitted to the High Court in Johannesburg‚ for determination of the amount of damages payable to Raduvha.

Her mother has since died. Her father is a pensioner and she is a student.

TMG Digital