The Supreme Court of Appeal (SCA) has delivered a scathing judgment against several arms of government, finding that a minor with a mental disability was unlawfully arrested and detained in 2013.
The SCA on Tuesday upheld an appeal by the curator of the arrested minor and set aside the order of the Pretoria high court which had dismissed the curator’s application for damages for unlawful arrest and detention.
The SCA replaced it with an order declaring that the minister of police is liable to compensate the curator for all proven damages against the man as a result of his unlawful arrest and detention in February 2013.
The SCA also ordered that the ministers of police and justice and the National Director of Public Prosecutions are liable, jointly and severally, to compensate the curator for all the proved damages suffered by the person under curatorship as a result of his unlawful detention.
In the civil claim before the high court, the curator, an advocate, said the person under curatorship, a “visibly immature” minor, with a visibly severe intellectual disability, was arrested by members of the SAPS in Montana on February 12 2013, on suspicion of the attempted robbery of a handbag.
The curator said despite his age of 17 and his disability, the person under curatorship had been unlawfully detained by officials of the department of correctional services (DCS) in the adult section of Newlock Prison, Pretoria and Weskoppies Psychiatric Hospital from mid-February to May 3 2013.
The curator pleaded that while in detention and in the custody of the DCS, he had been physically and sexually assaulted and raped by inmates. During his detention, he was brought to court on several occasions, but on each occasion he was remanded in custody despite his age, disability and physical condition.
Although his aunt and legal guardian had approached the NDPP on April 30 2013 and requested his release into her custody on the basis that he was a minor with severe cognitive impairment, the senior prosecutor refused her request without the production of a birth certificate.
The curator pleaded that charges against him were only withdrawn on July 24 2013.
The curator argued that the relevant officials of the SAPS, the prosecution service and the DCS had failed in their legal duties, to investigate his age, to comply with the requirements of the Child Justice Act, to secure and safeguard his mental and physical well-being while in detention, to ensure that he was detained in a facility appropriate to his age and mental capacity and to ensure that he received appropriate care and supervision.
Consequently, she claimed R500,000 in damages from the defendants, jointly and severally, for his unlawful arrest and detention.
The high court dismissed the curator’s application with a punitive costs order. It found the person under curatorship had been lawfully arrested.
Though it was common he was 17, the high court said none of the parties, including his legal aid attorneys, had any reason to question that he was an adult. Consequently, they could not have treated him as a minor until his aunt produced his birth certificate on May 3 2013, establishing his age.
To make matters worse, the SAPS officers acted in circumstances where it must have been obvious to them that (he) had mental challenges. Their evidence to the contrary is simply not credible.
— Raylene Keightley, judge of SCA
The high court refused the curator’s application for leave to appeal and was granted on petition to the SCA.
Judge of appeal Raylene Keightley, in a unanimous judgment for the full bench, said all the officers testified in the high court that they had not noticed anything wrong with the minor.
She said this was astonishing because when he made his first appearance in court on February 14 2013, the magistrate immediately perceived and recorded that his mental capacity was atypical.
The magistrate postponed the matter for the arresting officer to testify as to his state of mind.
Keightley said section 5(2) of the CJA requires that a child over the age of 12 who is alleged to have committed an offence must, before their first appearance at a preliminary inquiry, be assessed by a probation officer.
“The assessment is designed to, among other things, establish whether the child may be a child in need of care; estimate the age of the child where this is uncertain; formulate recommendations regarding the release or detention of the child; and provide any other relevant information regarding the child which the probation officer may regard as being in his or her best interests.”
The judge said the fact that the arresting officers did not know that he was a minor was no justification and did not render his arrest lawful.
“To make matters worse, the SAPS officers acted in circumstances where it must have been obvious to them that (he) had mental challenges. Their evidence to the contrary is simply not credible.”
She said the presiding magistrate immediately noticed that something was amiss within two days of the minor’s arrest, and this was subsequently confirmed by the district surgeon four days later.
She said it was impossible that the SAPS officers could have missed these signs.
Keightley said the minor’s guardian had reported him missing on the day of his arrest.
“However, the SAPS officers concerned did not think to check missing persons reports. Faced with an arrestee who was obviously mentally compromised, this would have been the obvious first step to take.”
The judge said had they done so, they could have tracked down his guardian, with the result that, as a minor, he would have been released into her care, without being remanded in custody.
The judge said the conduct of all the officials concerned was reprehensible.
“He was simply processed through the criminal justice system with no regard to his individual needs and to his dignity.”
Keightley said none of the respondents offered any form of recognition that he had been badly treated at their hands, let alone to apologise for what he went through.
“Such conduct is thoroughly deserving of this court’s censure in the form of an attorney and client costs award.”
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