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[2017] ZAKZDHC 38
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Maharaj v Minister of Safety and Security (11275/2012) [2017] ZAKZDHC 38 (5 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 11275/2012
In
the matter between:
NEELKA
MAHARAJ
PLAINTIFF
and
THE MINISTER OF SAFETY
AND SECURITY
DEFENDANT
Date of Hearing :
18-19 September 2017
Date of Judgment : 05
October 2017
ORDER
It is hereby ordered
that:
The
defendant is liable for the unlawful arrest, detention and treatment
of the plaintiff whilst she was in custody between 4-6
August 2011.
JUDGMENT
D.
Pillay J:
Introduction
[1]
The plaintiff is Ms Neelka Maharaj a widow
born on 8 March 1974 and residing at the time of the incident in
Clayfield, Phoenix,
KwaZulu-Natal. The defendant is the Minister of
Police. The plaintiff sues the defendant for R2 167 869 in
damages arising
from her unlawful arrest, detention and sexual
harassment whilst in police custody. Typically the defendant
delivered a bare denial
plea. In 2016 the defendant conceded the
arrest and detention of the plaintiff but denied the sexual
harassment. Despite undertaking
to amend its plea at the pre-trial
conference the defendant failed to do so. The trial proceeded on the
issue of liability only.
The
facts
[2]
On 4 August 2011 Detective Sergeant Nadasen
received instructions from Colonel Munien to interview and arrest the
plaintiff from
her workplace at the White House Shopping Mall in
Phoenix. Accompanied by Detective Sergeant Hurrinath, Detective
Nadasen took
the plaintiff from her workplace into custody as a
suspect in the murder of Mohan Juggath.
[3]
Later Detective Nadasen also took her
brother Pravesh Maharaj into custody from his workplace at the
Playhouse Theatre. The police
officers brought the plaintiff and her
brother to the Phoenix police station. The plaintiff remained in the
custody of Detective
Nadasen whilst her brother remained with
Detective Hurrinath. Whilst in his custody the plaintiff alleges that
he sexually harassed
her.
[4]
At about 15h26 Detective Nadasen informed
her that he was arresting her for the murder of Mr Juggath. She
was allowed to make
a telephone call to her domestic worker to
arrange the care for her daughter of seven years. Detective Nadasen
booked her into
a cell at Phoenix police station. He did not allow
her to keep her handbag, her cellular phone or her medication. She
was on medication
prescribed for arthritis and pain after undergoing
back surgery about two weeks earlier.
[5]
She was detained under appalling
conditions. The next morning many policemen came to look at her. They
offensively touched her lips
and her face. None checked on her needs
and her wellbeing. At some point she was taken to meet her erstwhile
attorney Vasie Chetty
and then returned to the cells.
[6]
She and her brother were handcuffed and
taken to Tongaat police station. There she was detained under
conditions worse than the
previous night at Phoenix. She received her
painkillers but not any other medication. The cold cell aggravated
her arthritis and
back pain.
[7]
In the absence of her attorney, Lieutenant
Naidoo and Captain Govender of Tongaat police station questioned her
about the nature
of her investments with Mohan Juggath. She answered
all the questions. She spent her second night in jail alone in a
cell.
[8]
The next day, Saturday, Lieutenant Naidoo
and Captain Govender took the plaintiff to her shop to search it.
They found nothing incriminating.
They proceeded to search her
vehicle and her house. There they collected two rifles belonging to
her late husband and her father.
They went to her brother’s
house where they took his licensed firearm for ballistic testing.
They returned to Tongaat police
station where they released her after
telling her that she could not be held for longer than 48 hours in
police custody. She was
not involved in any further investigation of
the murder.
The
plaintiff’s evidence
[9]
The plaintiff testified that Detectives
Nadasen and Hurrinath arrived at her store pretending to be
customers. Then they told her
that they were arresting her for the
murder of Mohan Juggath. They escorted her out of the store through
the mall to their vehicle
which was parked about half a kilometre
away despite there being parking in front of her store. Whilst
walking Detective Nadasen
announced to curious onlookers that he was
arresting her for murder.
[10]
In the car she sat in the back seat with
Detective Nadasen. Detective Hurrinath drove the vehicle. The police
questioned her about
the murder weapon and where her brother lived.
They proceeded to her brother’s house nearby. He was not at
home. Detective
Nadasen asked her to contact her brother on her
cellular phone. She did so. He spoke to her brother. They proceeded
to the Playhouse.
On the way Detective Nadasen put his hands on her
knees and passed sexual innuendos. After Detective Nadasen
arrested her
brother from the Playhouse he returned to the vehicle to
sit with the plaintiff in the back seat. On the way to Phoenix police
station Detective Nadasen screamed and shouted threats at her. She
had still not been advised of her rights to legal representation.
[11]
At the police station she informed
Detective Nadasen that he had arrested her for no reason and that he
should ask Vasie Chetty,
her attorney, and her broker, Robert
Baichan, about her claims against the deceased. Despite her pleas
Detective Nadasen did not
contact them. He insisted that he had two
statements from Omprakash Singh and his wife that implicated her.
[12]
Regarding the Singhs, after her husband had
passed away ten months earlier Mr Singh frequently made a nuisance of
himself at her
house. She would tell him to leave her alone but he
would become argumentative and bitter. In the past he had been
abusive and
violent towards his wife and the plaintiff had to
intervene often. Records at the Phoenix police station would bear her
out, she
told Detective Nadasen.
[13]
When she was alone with Detective Nadasen
he took her to an ablution facility where he sexually harassed her.
She was so traumatised
by the entire experience that she started
menstruating. When Detective Nadasen booked her into her cell she
asked him for her prescription
medication; he refused to give it to
her.
[14]
After their release her brother’s
wife picked them up from the police station. The following day, after
the
Sunday Tribune Herald
carried a headline implicating her brother in the murder, her
sister-in-law declared that she wanted to have nothing to do with
the
plaintiff. She testified about the pain and suffering that she
endured whilst in police custody, and the impact of the arrest
and
detention on her relationship with her family, friends and her mental
health. She had to seek psychiatric help initially and
currently
receives psychological therapy. Her business suffered and she closed
it down.
The
evidence for the defendant
[15]
Detective Sergeant Nadasen testified that
he is a police officer for twenty-two years, ten years of which has
been at Phoenix police
station. Colonel Munien instructed him to
interview and arrest the plaintiff. They parked their vehicle
next to the plaintiff’s
shop, entered the shop, introduced
themselves to the plaintiff, produced their appointment certificate
and informed her that they
were investigating the murder of Mohan
Jaggath under a Tongaat case number. The plaintiff became aggressive
and rude. Detective
Nadasen then informed her that he ‘would
appreciate it’ if she would accompany them. She agreed. She
walked the distance
of about four to five metres to their vehicle. He
denied that they had parked the vehicle half a kilometre away because
as
‘
fat guys’
they
would have taken the most convenient parking rather than walk a
distance. He denied being aggressive. Unconvincingly he began
narrating the alleged protocols for being careful when dealing with
an aggressive, rude suspect in a murder investigation, especially
if
she is a female.
[16]
After arresting Mr Maharaj he put him in
the back seat of the car before he took his seat next to the driver.
Again he narrated
how unethical it would be for him to sit next to a
female suspect in the backseat of a car if she did not look like a
flight risk.
He had no reason to sit with the plaintiff. He denied
touching her inappropriately and passing innuendos. As a person who
had been
‘
trained tactically’
he would not put a suspect next to the driver or
behind the driver. Hence he put her brother behind his seat and the
plaintiff behind
the driver’s seat as they proceeded to Phoenix
police station.
[17]
After questioning the plaintiff and her
brother, the police established a link between the Maharajs and
murder of Mr Jaggath. Based
on the statements of the Singhs, a
decision was taken to detain the plaintiff and her brother. Omprakash
Singh had approached the
branch commander Colonel Munien first.
Detective Nadasen, who had not met the Singhs previously, was not
aware of the Singhs’
daughter being friendly with his wife’s
family. He persisted that he took the statements from the Singhs
because Colonel
Munien instructed him to, not because they were
friends as the plaintiff alleged.
[18]
He denied that the plaintiff was under
arrest when he took her into custody; that he searched and harassed
her in a toilet or in
the car; that he would jeopardise his job by
refusing to give her medication to her if she had asked him.
[19]
Detective Hurrinath substantially
corroborated Detective Nadasen about the arrest of the plaintiff and
her brother, about where
she sat in the car, and about the toilets
being publicly accessible. He denied taking the plaintiff’s PIN
number from her
cellular phone or sending her text messages.
Evaluation
[20]
The quantity and quality of the evidence
for both sides was disappointingly inadequate. The plaintiff closed
her case before the
court adjourned for lunch. The defendant’s
witnesses completed their evidence by 16h15 on the first day of the
trial. The
brevity of the trial was due to a failure by both sides to
call relevant witnesses and to cross-examine effectively. Whether
these
omissions were deliberate, inadvertent or for some other
reason is hard to tell.
[21]
The plaintiff testified but called no other
witnesses. Her brother and other shop attendants in the mall were
material witnesses
who should have been subpoenaed if they were
unwilling to testify. Only Detectives Nadasen and Hurrinath testified
for the defendant.
As one who was keen to impress the court that he
was mindful of the ethics of managing female arrestees, he gave no
evidence of
the plaintiff ever being in the care of a policewoman at
any stage whilst she was in custody. Like Road Accident Fund claims,
actions
for damages against the police are so prone to corruption and
collusion that it compels the court to raise the bar on the quantity
and quality of the evidence. In the search for truth dependence on
the rules for admissibility and the tests for reliability of
the
evidence is ever greater.
[22]
Useful to the court in these cases would be
a report by the Independent Police Investigative Directorate (IPID).
Neither side mentioned
anything about an internal investigation into
the complaint against Detective Nadasen. The plaintiff should have,
but did not,
lodge a complaint with IPID. Neither did the defendant
take any interest in securing an independent investigation into
whether
the complaint has substance, at the very least from the
perspective of managing its risk going forward. It should be
mandatory
in actions for damages against this defendant that during
pre-trial, if not before, the parties must investigate, discuss and
report
to the court on any IPID investigation.
The
arrest and detention
[23]
The defendant’s witnesses insist that
they arrested the plaintiff only at 15h26 on 3 August 2011 after they
interviewed her
at the station. The reason Detective Nadasen gave for
removing her from her workplace was that she was aggressive, rude and
opposed
to accompanying them. Under these conditions it was not
conducive to interview her there. In contrast, Detective Hurrinath
testified
that when the detectives approached the plaintiff at her
workplace she was shocked and did not want to accompany them;
subsequently
she agreed to. It was not his evidence that she was
aggressive or rude.
[24]
Detective Nadasen denied that he arrested
the plaintiff when he took her into custody that morning from her
work place; he persisted
that she was free to leave. However this
contradicts his evidence that when he put her into the back seat of
the car he engaged
the child lock so that she could not escape. This
response emerged in another context when he was explaining that even
though he
did not sit with her in the back seat, he had secured her
sufficiently to know that she was not a flight risk. Another
contradiction
emerged when the reason he gave for not walking the
plaintiff through the mall was that she was not handcuffed and
therefore posed
a flight risk. Hence it was safer to park the vehicle
closest to her work place rather than walk her to a vehicle parked
half a
kilometre away. Contrary to Detective Nadasen’s evidence
that she had a choice not to accompany him, he ensured that she had
no means of escaping from custody. He recalled as an afterthought
that he informed her of her rights at her shop. What rights did
he
inform her of if he did not arrest her that morning?
[25]
In the circumstances I find that Detective
Nadasen did arrest the plaintiff that morning at about 10h00. The
question is why did
he deny doing so? The answer lies in whether the
arrest that morning was lawful.
[26]
The
arrest was without a warrant in terms of
s 40(1)(b)
of the
Criminal
Procedure Act, 1977
. The jurisdictional facts for such an arrest were
set out in
Duncan
v Minister of Law and Order
[1]
and confirmed by the Constitutional Court.
[2]
Of relevance to this case is the fourth requirement: the
suspicion must rest on reasonable grounds. Although the Supreme
Court
of Appeal held in
Minister
of Safety and Security v Sekhoto & another
that s 40(1)(b) does not embody ‘the fifth jurisdictional fact’
that requires the police to consider less invasive
options to bring a
suspect to court,
[3]
it
emphasised that the officer is not obliged to but ‘may’
effect an arrest.
[4]
Once
the jurisdictional facts are established then the arresting officer
has to exercise his discretion properly and
rationally in deciding
whether to arrest.
[5]
However,
the exercise of such discretion can be questioned only on narrowly
circumscribed grounds.
[6]
It is
a ‘fact specific enquiry,’ one that requires ‘a
measure of flexibility’ so as to avoid ‘the
unintended
consequence’ of interfering with the police officers’
discretion.
[7]
Such facts must
justify the arrest, which is ‘a drastic invasion of a person’s
liberty and an impairment of their rights
to dignity.’
[8]
[27]
The
discretion must be exercised ‘in the light of the Bill of
Rights’ in
the
Constitution of the Republic of South Africa, 1996;
police
officers must ‘weigh and consider the prevailing circumstances
and decide whether an arrest is necessary.’
[9]
For example an arrest without a warrant for a trivial offence would
be irrational.
[10]
So too
would the arrest of a child be if she does not pose a safety or
flight risk.
[11]
[28]
An
arrest is distinct from detention.
[12]
The discretion differs for each process with s 40 specifying the
requirements for a lawful arrest. However, an arrest leads to
detention. Consequently police officers must also exercise their
discretion as to whether the ensuing detention would be justified.
In
this regard the conditions and duration of the detention come into
focus. Detaining a child or any human being longer than is
necessary
or under inhumane hazardous conditions will be unjustified under
various sections of the Bill of Rights including the
rights to human
dignity in s 10, to freedom and security of person under s 12, to
freedom of movement under s 21, to a safe and
hygienic environment in
s 24 and to the protections afforded to arrestees and detainees under
s 35 of the Constitution. Whether
the detention is unduly
long or the conditions oppressive are questions of fact.
[29]
As
for the onus the defendant bears the onus of establishing the
jurisdictional facts
[13]
but
the plaintiff bears the onus of proving that the police exercised
their discretion improperly.
[14]
[30]
The only information on which Detective
Nadasen based his decision to arrest the plaintiff
was the statements of Mr and Mrs Singh. He had taken their statements
two days
earlier. He undertook no further investigations before he
arrested the plaintiff.
[31]
In his statement Mr Singh stated that in
November 2010, his wife reported to him that the plaintiff next door
had something wrapped
in a yellow towel to give to him. He unwrapped
the towel and saw a revolver, a pistol and ammunition. He asked the
plaintiff why
she wanted him to keep the weapons. She replied that
her broker had been found dead in a sugar cane field in Tongaat and
that she
might be the first suspect in his murder. She gave the
firearms to his wife as she was frightened. He asked her if she was
involved
in the death of the broker and she replied that ‘the
person who pulled the trigger was paid well enough and will not
implicate
anyone.’
He refused to keep
the weapon. The plaintiff then contacted her brother to whom she
handed the weapons. He undertook his own investigation
and discovered
at the end of July 2011 that a broker by the name of Mohan had been
shot. He proceeded to the charge office at Phoenix
police station
where he found Detective Nadasen. He and his wife made their
statements to Detective Nadasen. Detective Nadasen
questioned Mr
Singh about his delay in reporting the matter but did not record his
response, which was that Mr Singh had changed
his mind and decided to
report the matter then.
[32]
The statement contains sufficient
information for the police to form a reasonable suspicion that the
plaintiff might be involved
in the commission of a crime. The
jurisdictional requirements in s 40(1) were established. However, the
police then had to exercise
their discretion as to whether they
should arrest her and whether they should do so with or without a
warrant.
[33]
Detective Nadasen’s evidence was that
his instructions from Colonel Munien were to interview and to arrest
the plaintiff.
The interview was necessary considering the
inadequacies in the Singhs’ statements. At most their evidence
was circumstantial
about the murder. The delay in reporting to
the police raised the possibility of an ulterior motive for
reporting. That a
suspect would gratuitously volunteer incriminating
information of so serious a crime as murder is unusual.
[34]
The instructions to the plaintiff before
Detective Nadasen took her into custody did not amount to an
interview. Although the Singhs’
statements established a prima
facie case of possession of firearms possibly used in the commission
of murder, neither she nor
her premises were searched for weapons and
ammunition. She was not questioned about the whereabouts of the
weapons, their licences
or anything pertaining to the murder. In
short there was no rational connection between the grounds of
suspicion i.e. the alleged
possession of weapons and ammunition and
the arrest without a search or an interview. By arresting her without
interviewing her,
without following Colonel Munien’s
instructions, the detectives omitted to get further and better
information necessary to
justify the arrest that morning.
[35]
Eventually Detective Nadasen interrogated
the plaintiff at the Phoenix police station by shouting at her. The
defendant did not
dispute that the plaintiff advised Detective
Nadasen repeatedly that her attorney and her broker would assist the
police with whatever
information they required concerning her
involvement with the deceased. Without taking up her suggestion,
Detective Nadasen detained
the plaintiff in the police cells. He
offered no explanation as to what transpired during the interview,
what information he gleaned
from her, how it affected his discretion,
and most importantly, why he did not contact her attorney and her
broker. Even on his
version that he arrested her only at 15h26, his
discussions with her made no difference to his decision to arrest her
that morning.
[36]
Detective Nadasen had established that the
plaintiff was not a flight risk. She had fixed addresses and a
business. It was not apparent
from the statement that the police had
any reason to act urgently considering that the Singhs made their
statement more than six
months after the incident. If anything was
urgent at all it was a search for the firearms and ammunition.
[37]
The contents of the Singhs’
statements were insufficient to form a reasonable suspicion to effect
an arrest; Colonel Munien
recognised the need for the plaintiff to be
interviewed first. Detective Nadasen understood that the interview
was a prerequisite
to enable him to exercise his decision properly.
Failing to interview her before arresting her, interrogating instead
of
interviewing her and continuing to detain her without attempting
to verify information she gave results in the only reasonable
inference namely, that the purpose of the arrest and detention was to
intimidate and harass the plaintiff. Detective Nadasen’s
exercise of his discretion to arrest her without a warrant was
irrational, unreasonable and a disproportionate limitation of her
right to her freedom and security of her person under s 12 and her
right to freedom of movement under s 21 of the Constitution.
Furthermore her arrest and detention violated s 35 (1) (f) being the
right to be released from detention when the interests of
justice
permitted, subject to reasonable conditions if necessary.
The
conditions of custody
Sexual
harassment
[38]
The plaintiff testified that Detective
Nadasen took her to an ablution facility at Phoenix police station.
There she noticed
a toilet and asked to use it. When she emerged from
the toilet cubicle, Detective Nadasen instructed her to strip naked
and to
perform oral sex on him. She refused. He insisted that he had
to search her. Without touching her he subjected her to other
indignities.
She put on her underwear. He called a female officer to
search her handbag. That officer emptied the contents of her bag onto
the
floor of the ablution facility and moved the items about with her
feet laughing and joking with Detective Nadasen as she did so.
The
plaintiff did not know the name of female officer. Detective Nadasen
told her to dress and that he was arresting her. He was
upset that
she had not acceded to his sexual advances.
[39]
Detective Nadasen denied that he took the
plaintiff to a toilet, that he searched and harassed her in the
toilet, which is a public
place accessible to all the police officers
and members of the public. He persisted that he had a key to his
office, that he could
have strip-searched her in the privacy of his
office if he wanted to and therefore that her version was improbable.
[40]
However, counsel for the defendant did not
cross-examine the plaintiff to the effect that her version was
improbable because the
public had access to the toilets; that the
toilets were unlocked; and furthermore that Detective Nadasen had a
private office that
he could have locked if he wanted to harass her.
[41]
Counsel for the plaintiff did not assist
the court either. She also failed to cross-examine Detective Nadasen
about public access
to the toilet; the alleged privacy of his office
and who, if not Detective Nadasen, had searched the plaintiff. She
also failed
to clarify the exact location of the toilet. The
plaintiff’s evidence that she was in an ablution facility where
she found
a toilet suggests that she might not have been taken to the
usual staff and public toilets. The fact that the plaintiff was
unable
to say whether it was marked male or female fortifies this
possibility. Neither side invited the court to inspect the Phoenix
police
station; the court’s attempt to arrange an inspection in
the time available was unsuccessful. So the court has to look
elsewhere for the probabilities.
[42]
When the two detectives brought the
plaintiff and her brother to the police station, Detective Hurrinath
testified that Detective
Nadasen took the plaintiff away to be
searched. The defendant led no evidence of the police searching the
plaintiff. The only evidence
that the plaintiff was searched at all
emerged from the plaintiff herself. And that is the search in the
toilet when she was sexually
harassed.
[43]
The plaintiff had a handbag in which she
testified she
‘
carried her entire
life’.
Considering that the
allegations against her was that she might have had the murder
weapon, searching her person and her bag from
the moment she was
taken into custody should have been a priority. The defendant did not
lead any evidence that a female police
officer ever attended on the
plaintiff at any time during her arrest and detention to either
search her or to ensure that she was
physically comfortable.
[44]
Detective Nadasen, like the plaintiff, was
a single witness on this issue. The plaintiff bore the onus of
proving the harassment;
the defendant bore the overall onus of
proving the lawfulness of the conditions of her detention. At
first blush the plaintiff’s
version of the incident in the
toilet seemed improbable, not least because the alleged harassment
was so brazen. However, closer
scrutiny of all the evidence shores up
the porousness of the defendant’s case. The plaintiff could not
find corroboration
for her version. The defendant could. Its failure
to lead any evidence by a woman police officer about searching and
attending
to the plaintiff’s personal needs for the entire
duration of her detention is destructive of the defendant’s
case regarding
the complaint of sexual harassment in a toilet.
Accordingly, I find that Detective Nadasen sexually harassed the
plaintiff at Phoenix
police station.
[45]
As for the plaintiff’s allegations
that Detective Nadasen walked her through the mall and harassed her
in the car when he
took her into custody, the plaintiff failed to
call witnesses to corroborate her. Her brother should have testified
about where
Detective Nadasen had been seated and where in the
backseat she had been seated. Although Detective Nadasen was not a
credible
witness, and Detective Hurrinath was not an independent,
impartial witness, more was needed for the plaintiff to discharge her
onus. She could have subpoenaed her brother if he was unwilling to
testify. Her failure to adduce corroboration results in her failing
to discharge her onus on these aspects.
Conditions
in the cells
[46]
The undisputed evidence of the plaintiff
was that she started menstruating after Detective Nadasen harassed
her in the toilet. The
police refused to provide her with a change of
clothes. Detective Nadasen denied that he saw her pants soiled. He
did not deny
that she had no change of clothing and had not been
allowed any family visitors.
[47]
At Phoenix she was forced to share a cell,
a mattress and a blanket with two women. She slept next to a filthy
toilet, breathing
in the stench of rotting food and faeces, which
littered the cell. The conditions in the police cells were in her
words
‘
inhumane’.
[48]
At Tongaat police station, she was detained
alone in a small cell in which there was nothing more than a concrete
block and a filthy
toilet. She asked for toilet paper as she had
diarrhoea and was menstruating but received none. Her pants were
soiled.
[49]
In
the time available, I searched for cases in which inhumane conditions
of detention were found to be cruel and unusual punishment.
The U.S.
Supreme Court overturned a finding that ‘double celling’
i.e. prisoners sharing cells, amounted to cruel and
unusual
punishment.
[15]
Surprisingly,
I was unsuccessful in finding a South African case,
[16]
considering that there are many reported cases of torture in
detention,
[17]
and despite
rights being recognised in the Bill of Rights. Section 12 of the
Constitution entrenches the right of everyone to freedom
and security
of the person, including the right ‘not to be treated or
punished in a cruel, inhuman or degrading way’;
and s
35
(2) (e) prescribes for everyone who is detained the right:
‘
to
conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense,
of
adequate accommodation, nutrition, reading material and medical
treatment’.
[50]
One
explanation for this jurisprudential deficit probably lies in the
traditional practice of prosecuting damages claims as delict
under
the common law;
[18]
compensation awards increase or decrease depending on the conditions
of detention. Another explanation could be weak knowledge
of rights,
of access to justice or quite simply of being resigned to the
appalling conditions of detention as ‘normal’.
[51]
However,
the quality of our public facilities, in particular our detention
facilities should be a matter of public interest. They
are a
projection of what we are as a nation, and how we will execute on our
‘promissory note’ that is our Constitution
and the
international human rights instruments we ratify.
[19]
Elevated as a matter of constitutional rights the conditions of
detention are not merely matters of private delictual claims
for
compensation but issues of enormous public interest for which
remedies have to be found in institutional reforms. Quite
simply: by paying compensation to individuals for claims arising from
conditions of detention the defendant does not resolve the
problem of
the appalling conditions. This is at the heart of matters about
unlawful detention. Resolving this public interest aspect
of the
conditions of detention falls beyond the scope of this litigation.
[52]
In this instance, the plaintiff is not a
convict and therefore she should not have been punished. The
conditions of her detention
were tantamount to punishment. Her
complaint is pitched at the most basic levels of hygiene and adequacy
of beds, blankets and
toilet paper. The defendant must at the very
least provide these basic facilities.
[53]
Accordingly, I find that the intolerably
unhygienic environment in the cells in both police stations were
inhumane and intolerable.
These conditions, the sexual harassment at
Phoenix police station and the failure to allow her access to her
family impugned the
plaintiff’s human dignity in terms of 10,
amounts to cruel and unusual treatment in terms of s 12, a denial of
her rights
as a detainee under s 35 (2) (e) above, and a violation of
her environmental rights under s 24 of the Constitution. Denying her
the right to communicate with
her next of
kin violated s 35 (2)(f)(ii) (f) of the Constitution.
Order
[54]
The following order is granted:
The
defendant is liable for the unlawful arrest, detention and treatment
of the plaintiff whilst she was in custody between 4-6
August 2011.
_________________
D. Pillay J
APPEARANCES
Counsel
for the applicant : Omitted
Instructed
by : V Chetty Incorporated
Tel:
(031) 201 3191
Ref:
MS Rajkumar/mc/m7831
Counsel
for the respondent : Omitted
Instructed
by : The State Attorney, KwaZulu-Natal
Tel:
(031) 365 2560
Ref:
32/1475/12/M/P11/nhm
Date of Hearing : 18-19
September 2017
Date of Judgment : 05
October 2017
[1]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H. They were reiterated by the SCA in
Minister
of Safety and Security v Sekhoto &
another
2011 (5) SA 367
(SCA) para 6.
[2]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
2016
(10) BCLR 1326
(CC) para 44.
[3]
Minister
of Safety and Security v Sekhoto &
another
above para 23.
[4]
Minister
of Safety and Security v Sekhoto & another
para 28 applying
Groenewald
v Minister van Justisie
1973
(3) SA 877
(A) at 883G-884B.;
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para 41-43.
[5]
Minister
of Safety and Security v Sekhoto &
another
above para 28-29; 36-40;
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
44.
[6]
Minister
of Safety and Security v Sekhoto &
another
para 41.
[7]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
42.
[8]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
43.
[9]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
42.
[10]
Minister
of Safety and Security v Sekhoto &
another
para 44.
[11]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
52, 65.
[12]
Raduvha
v Minister of Safety and Security (Centre for Child Law as
amicus
curiae
)
para
39.
[13]
Minister
of Safety and Security v Sekhoto &
another
para 45.
[14]
Minister
of Safety and Security v Sekhoto &
another
para 46, 49.
[15]
Rhodes
v. Chapman
,
452 U.S. 337 (1981)
[16]
For
a historical account of the concept of cruel and unusual see
S
v Bull
&
another; S v Chavulla & others
2002
(1) SA 535
(SCA) para 11.
[17]
Truth
and Reconciliation Commission of South Africa Report
Volume
Five p 16-23 (accessed 1 October 2017
http://www.dhnet.org.br/verdade/mundo/africa/cv_africa_do_sul_volume_05.pdf.)
[18]
Minister
of Law and Order v Ebrahim
(97/1993)
[1994] ZASCA 163 (22 November 1994)
[19]
Kaunda
& others v President of the Republic of South Africa
&
others
2005
(4) SA 235 (CC);[2004] ZACC 5 (4 August 2004)
para
156-163.