The rights of a child not to be detained except as a measure of last resort have been confirmed by the Constitutional Court‚ which ruled on Thursday that a young Johannesburg woman can go ahead with a claim for damages against the state.
Joyce Raduvha wants damages from the Minister of Safety and Security, David Mahlobo, after she was arrested without a warrant. She was 15 years old at the time.
Judge Bosielo commented that the constitution “seeks to insulate (children) from the trauma of an arrest by demanding in peremptory terms that‚ even when a child has to be arrested‚ his or her best interests must be accorded paramount importance”.
“Given the importance which our constitution places on the rights of children‚ this means that an arrest of a child should be resorted to when the facts are such that there is no other less invasive way of securing the attendance of such a child before a court. This requires police officers to consider and weigh all the facts carefully and exercise a value-judgement whether an arrest can be justified...”
“Does this mean that children shall‚ under no circumstances‚ be arrested or detained? The answer is no. For it is a fact that children do commit crimes. Even heinous crimes for that matter.
“Statistics can attest to this. Sad as it might be‚ it is a reality of our times.
“All that the constitution requires is that‚ unlike pre-1994‚ and in line with our solemn undertaking as a nation to create a new and caring society‚ children should be treated as children – with care‚ compassion‚ empathy and understanding of their vulnerability and inherent frailties. Even when they are in conflict with the law‚ we should not permit the hand of the law to fall hard on them like a sledgehammer lest we destroy them. The constitution demands that our criminal justice system should be child-sensitive.”
In the Raduvha case‚ the judge said of the police: “They did not consider the crucial facts that she was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home and‚ importantly; that her father was present with them ... If the police officers had considered best interests‚ there would have been no reason for them to arrest her. They could have resorted to section 38 of the Criminal Procedures Act‚ by either issuing a summons‚ a written notice or‚ as her father was present‚ leaving her in his custody with instructions for him to bring her to court. It follows that (her) arrest is inconsistent with the constitution and therefore unlawful.”
The Constitutional Court ordered that the matter be remitted to the High Court in Johannesburg for determination of the amount of damages payable to Raduvha.
Her mother has since died. Her father is a pensioner and she is a student. — Tiso Black Star Group Digital
Police may only jail kids as a last resort
Joyce Raduvha wants damages from the Minister of Safety and Security, David Mahlobo, after she was arrested without a warrant. She was 15 years old at the time.
Judge Bosielo commented that the constitution “seeks to insulate (children) from the trauma of an arrest by demanding in peremptory terms that‚ even when a child has to be arrested‚ his or her best interests must be accorded paramount importance”.
“Given the importance which our constitution places on the rights of children‚ this means that an arrest of a child should be resorted to when the facts are such that there is no other less invasive way of securing the attendance of such a child before a court. This requires police officers to consider and weigh all the facts carefully and exercise a value-judgement whether an arrest can be justified...”
“Does this mean that children shall‚ under no circumstances‚ be arrested or detained? The answer is no. For it is a fact that children do commit crimes. Even heinous crimes for that matter.
“Statistics can attest to this. Sad as it might be‚ it is a reality of our times.
“All that the constitution requires is that‚ unlike pre-1994‚ and in line with our solemn undertaking as a nation to create a new and caring society‚ children should be treated as children – with care‚ compassion‚ empathy and understanding of their vulnerability and inherent frailties. Even when they are in conflict with the law‚ we should not permit the hand of the law to fall hard on them like a sledgehammer lest we destroy them. The constitution demands that our criminal justice system should be child-sensitive.”
In the Raduvha case‚ the judge said of the police: “They did not consider the crucial facts that she was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home and‚ importantly; that her father was present with them ... If the police officers had considered best interests‚ there would have been no reason for them to arrest her. They could have resorted to section 38 of the Criminal Procedures Act‚ by either issuing a summons‚ a written notice or‚ as her father was present‚ leaving her in his custody with instructions for him to bring her to court. It follows that (her) arrest is inconsistent with the constitution and therefore unlawful.”
The Constitutional Court ordered that the matter be remitted to the High Court in Johannesburg for determination of the amount of damages payable to Raduvha.
Her mother has since died. Her father is a pensioner and she is a student. — Tiso Black Star Group Digital
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