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Court awards Durban child and mom R30,000 each for unlawful arrest and detention

A Durban mother and child have successfully sued the police minister for unlawful arrest and detention.
A Durban mother and child have successfully sued the police minister for unlawful arrest and detention.
Image: 123RF/skycinema

A child who was arrested with her mother to “lure” her father to a police station 11 years ago has successfully sued the minister of police.

The girl, who was seven at the time, and her mother have been awarded damages of R30,000 each for unlawful arrest and detention. Her father, who was arrested on what judges have described as “false charges”, has been awarded damages of R200,000 for the unlawful search of his home, unlawful arrest and detention, malicious prosecution and assault.

The matter came before judges Sharmaine Balton and Sidwell Mngadi in the Pietermaritzburg High Court on appeal from the Pinetown magistrate's court, where the magistrate had ruled in part against the family’s claim and ordered R5,000 in compensation to the mother and child and R25,000 to the father.

Father was not at home

Evidence was that the child was seven years old when police arrived at the family home in Mariannhill, outside Durban, in March 2009 while her father was attending to a domestic violence dispute as a member of the local community policing forum.

About six police officers entered and searched the house.

According to evidence from the mother, one of the police officers used her cellphone to call her husband and told him they were taking her and the child. They were put into a police van and driven to the local police station, but were kept inside the van, “which had a dog cage”, for about an hour.

Then one police officer told them “we have found the criminal” and took them back home.

There the child witnessed the police officers kicking and hitting her father and she started crying.

Items missing from home

A police officer told the mother to keep her child quiet so she left, taking the child to a nearby relative. When she returned, the police and her husband were gone. Her watch, cellphone, a teddy bear and other items were  missing.

Two police officers testified at the initial trial.

Sergeants Sabelo Mathonsi and Duduzi Nzama  said they had received a “tip off” that the man was in possession of an unlawful firearm. They claimed he was home alone and he let them in. They discovered a partly concealed firearm under a couch. They arrested him and took him to the police station.

The father was acquitted after standing trial.

The officer denied assaulting him, and denied taking his family away to lure him to the police station but the father said they were lying.

He said he was out and had received a call telling him the police were taking his wife and child. On his way to the police station he stopped at home, and this is when he was assaulted and arrested. After they handcuffed him, one officer used the police radio and said: “You can take them back because we have caught him.”

Father assaulted

The officers then demanded that he produce a firearm. In spite of repeatedly telling them he did not have one, the officers assaulted him several times. One said he would “have to go and buy one” while another said “he was stubborn because he was a boxer”, an apparent reference to photographs in his house which showed him boxing.

When he appeared in court on the first occasion, the magistrate noted his injuries and ordered that a doctor examine him. The doctor found his injuries to be consistent with “forceful blunt trauma”.

The judges found the magistrate had correctly found that he had been assaulted, but had been wrong in ruling that the search of his home and his arrest and detention were lawful.

“The invasion of a private residence (without permission and without the owner being present) at odd hours is a serious invasion of the privacy of a person which should be jealously guarded. It was motivated by an ulterior motive. Instead of being ashamed about what they had done, they pursued false charges against him,” they said.

“If not for the intervention of the magistrate, he would have received no medical attention.”

With regards to the treatment of the mother and child, the judges said they had done nothing wrong.

“The child was seven years old. The officers exposed her to their unbecoming behaviour and to trauma.”

The judges noted  the minister had not opposed the appeal, which was a “well-considered decision” given the circumstances, and said the roles of all officers involved should be investigated and “appropriate action taken against them”.



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