Pretoria - In a victory for children’s rights, the Constitutional Court has confirmed the principle that the best interests of children should always prevail and that the arrest and detention of a child by police should be an absolute last resort.
Eleven judges of the Constitutional Court last week confirmed that any SAPS officer who has a run-in with a child must comply with the Bill of Rights regarding children’s rights and they must thus think twice before they arrest and detain a child (under the age of 18).
The effect of the judgment is that any SAPS member who arrested and detained a child, while there were other avenues open to avoid this, could later face a damages claim instituted on behalf of the child.
This judgment comes as a victory for a woman who has tried for more than eight years to find justice.
The then 15-year-old - who is only identified as MR as she was under-age when she was arrested - tried for years to find justice.
Neither the high court nor the appeal court would entertain her plight, before the highest court in the land eventually came to her aid.
On April 6, 2008, two SAPS officers were sent to the home of the then teenager’s mother.
It was claimed that the mother had contravened a protection order that had been issued against her husband.
The police wanted to arrest the mother, but the 15-year-old stood between the police and her mother in a bid to stop them from arresting her.
She tried to explain that her mother in fact also had a protection order and the child wanted to fetch the document in the house to show the police.
They ignored her explanation and instead forcefully threw her and her mother in the back of a police van.
They were taken to a police station where both were locked up for 19 hours.
This was in spite of the police knowing at the time that she was only 15.
The court was told that if the police felt she had hampered them in the execution of their duties, they could have left her in the care of her father until she had to appear in court.
No charges were ever levelled against MR.
She subsequently instituted a damages claim against the police.
The High Court in Johannesburg turned down her claim and refused her application for leave to appeal.
The appeal court in Bloemfontein likewise refused her leave to appeal.
She eventually turned to the Constitutional Court, with the assistance of the Centre for Child Law.
The 11 judges all agreed that she should be compensated by the police.
It was found law enforcement officers had no right to treat a child in this manner.
Justice Ronnie Bosielo, who wrote the judgment, said the police had certain duties when arresting those they believed to be on the wrong side of the law.
However, they had to be extremely cautious when it came to children, as the Constitution regarded the rights of children as of paramount importance. He said the detention of a child should only be done in exceptional circumstances.
If a child is detained, it must be done for the shortest possible time.
The court found that the police failed to consider that MR was a child at the time of her arrest and that they violated her right to have her best interests considered as paramount.
Justice Bosielo urged the parties to try to settle the amount of damages which should be awarded to MR.
Both her lawyer, Jothi Govender, and Professor Ann Skelton of the centre for Child Law hailed the judgment as a victory for children’s rights.
They said this judgment made it clear that the police had a duty to find alternatives than to arrest and detain child offenders.
Pretoria News