The Centre for Child Law condemned the recent arrest and detention of a child suspected of being an undocumented migrant.
The centre said it is unlawful to arrest and detain a child simply on the basis that the child failed to identify him or herself as a citizen, resident or foreigner at the request of a law enforcement officer.
“It is not a criminally punishable offence for a child to fail to produce any form of identity document when requested to do so by an immigration officer or the police,” the centre said.
It reacted to a media report regarding the arrest and detention of a 15-year-old girl by the SAPS, in which the child detailed her harrowing ordeal.
It is said that she was approached by a group of female officers who asked her to produce her ID document.
According to the report, when she failed to produce the document, she was loaded into the back of a police van which already had other detainees in transit. She was taken to the Hillbrow police station where she was detained with other female detainees.
It is reported that the police told the group that “this is not your home, South Africa is only for its citizens, not you”.
The child was assisted by another detainee with a phone to call her parents to explain her ordeal. Her father rushed to the police station with her South African birth certificate and she was released.
The Centre for Child Law said it appears that the police relied on a section of the Immigration Act which requires any person at the request of an immigration officer or the police, to identify him or herself as a citizen, resident or a foreigner.
If the officer, on reasonable grounds, is not satisfied that the person is entitled to be in the country, they may detain the person.
Attorney Stanley Malematja at the centre said, it was important to note that in terms of the Children’s Amended Act, a child is in need of care and protection if the child is an unaccompanied migrant from another country.
The Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child.
He added that the Constitution provides that a child may not be detained unless as a measure of last resort. If a child has to be detained, the child must be kept separately from persons over 18.
“The police women, if they were acting bona fide, ought to have treated the child as a child in need of care protection as an unaccompanied migrant child and not in terms of the Immigration Act.”
Malematja said it appears that the arrest and detention of the child was unlawful and a gross violation of her constitutional rights.
“It is important to note that what the child in question was arrested and detained for is not a criminal offence. Those involved must be held accountable,” he said.
Pretoria News