Unlawful arrest and detention cases are flooding the courts, and an arrest without the intention to bring the accused to justice is unlawful and cannot be taken lightly by the courts, an acting judge said.
This was in a case in the Gauteng High Court, Pretoria, where a woman, who was only identified by her initials, was arrested and thrown into a police cell, together with a mentally ill male patient.
After the woman was slapped around by the police during her arrest and while being transported to a police station, her nightmare ordeal worsened when she was raped in the holding cell by her mentally ill cellmate.
The plaintiff, only identified as MM, successfully turned to court to claim damages from the SAPS for unlawful arrest and detention.
She testified that the police came to her residence and said they were looking for her boyfriend. They then proceeded to search the house for a firearm but did not find one.
During the search they assaulted the plaintiff and her boyfriend and they handcuffed them. They then put them inside a SAPS vehicle and drove around with them, while assaulting the pair.
While on their way to the police station, the police kept questioning her about the firearm, and when she said she did not know, they kept assaulting her. The plaintiff testified that she was hit in the face. She had a blue eye and an injured wrist from the handcuffs.
She was taken to a cell where she was placed with a mentally ill male who sexually assaulted her and pulled her hair. She said she was terrified of him and kept quiet while he raped and sexually assaulted her for about 20 minutes.
She then screamed and called out for help, and people in the adjacent cells heard her and called the police. The plaintiff testified that she was “heartbroken” after the police officers did not protect her and allowed her to be violated in such a manner.
The plaintiff testified that the police on arrival to rescue her apologised and told her they would remove her from the cell and take her home. When she asked to be taken to hospital, the officers started swearing at her and accusing her of being mad.
After the sexual assault she was not taken for medical attention. Instead she was moved to another police station. She was only taken for a medical examination after she laid charges of rape against her cellmate.
According to the woman she had no idea why she was arrested and detained and only heard later, when she was taken to court, that a neighbour said she had fired a shot at him.
Nothing came of the charges and she was told to go home.
It was argued on her behalf that the SAPS had a legal duty of care towards the plaintiff to ensure that she was not detained with a male.
The court was also told that the SAPS first had to make sure of their facts before they simply arrested a person and threw them in a cell.
The officers who were involved in her arrest said they did not need a warrant to arrest her as she posed a danger to her neighbours as she allegedly fired a shot between the legs of her neighbour during an altercation.
They were, however, silent on the issue of placing her in a cell with a male.
Acting Judge MD Botsi-Thulare said she agreed that to use a firearm to shoot between someone’s legs was “regrettably not the means to communicate” if a disagreement ensued between parties.
However, in this matter the arresting officer did not provide substantiated evidence of the alleged shooting, nor did he properly investigate the allegations against the woman before simply arresting her.
“They proceeded to arrest the plaintiff without evidence to back up the intimidation and the shooting allegations. It is clear that the intention of the arrest was not to bring the plaintiff to justice,” the judge said.
The court was of the view that the police were pursuing their own purposes when they put the plaintiff, who is a woman, in the same cell with a male person.
“Had this not happened, the allegations of sexual assault would have been avoided. There was no valid reason for them to detain the plaintiff with a male detainee, who happens to be mentally ill.”
The judge said their conduct was irresponsible and in contravention of their statutory duty. Thus, the judge said, the minister of police was vicariously liable for the sexual assault on the plaintiff.
The amount payable to the plaintiff will be decided by the court during later proceedings.
Pretoria News