The Mpumalanga High Court in Mbombela has ordered the Minister of Police to pay a total of R300,000 in damages to a mother and her child after finding that both were unlawfully arrested and detained in police cells for nearly three days.
Acting Judge H.F. Fourie ruled that the South African Police Service (SAPS) had failed to justify the arrest and detention of the woman, who was taken into custody following a domestic violence dispute on 8 March 2024, along with her six-month-old baby.
According to the uncontested evidence before the court, the woman was arrested at around 11pm after a domestic violence incident involving the father of her child. Police instructed her to gather clothing and blankets for the infant because the child would accompany her to the police station.
The mother and child were detained from approximately 2am on 9 March 2024 until about 2pm on 11 March 2024, when she was taken to court and released without ever standing trial or facing criminal charges. Throughout the detention, the baby remained with the mother in the police cells.
The woman testified that the holding cells were filthy and unhygienic, with dirty blankets provided to detainees. She and her baby shared the cell with another mother and child, as well as two additional detainees at one stage. The court accepted her evidence as truthful and unchallenged because the Minister of Police failed to defend the matter.
Although the State Attorney had attempted to contact the woman’s legal representatives on the day of the hearing, neither the Minister of Police nor any legal representative appeared before the court or sought a postponement. Judge Fourie held that the case therefore remained undefended and proceeded to hear the plaintiff’s evidence.
The court reiterated the well-established legal principle that every arrest and detention is presumed to be unlawful unless the state can justify it. Judge Fourie referred to several Constitutional Court decisions affirming that the rights to freedom, dignity and security of the person are fundamental constitutional protections.
The judge placed particular emphasis on the constitutional rights of children, noting that detention should only ever be used as a measure of last resort. He found there was no justification for detaining a six-month-old infant alongside the child’s mother.
“The detention of this young child was not a last resort but seems to have been standard practice,” the judge observed, noting that the plaintiff had shared a cell with another detained mother and child in similar circumstances.
In determining compensation, the court considered previous awards for unlawful arrest and detention and stressed that damages should compensate victims for the infringement of their constitutional rights rather than enrich them. Judge Fourie also acknowledged that no amount of money could fully compensate someone for the loss of personal liberty.
The court ultimately awarded R150,000 to the mother for her unlawful arrest and detention and a further R150,000 to the minor child. The child’s compensation must be placed in a trust established for the child’s sole benefit, with the funds to be invested until the trust is operational.
sinenhlanhla.masilela@iol.co.za
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