About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2016
>>
[2016] ZACC 24
|
|
Raduvha v Minister of Safety and Security and Another (CCT151/15) [2016] ZACC 24; 2016 (10) BCLR 1326 (CC); 2016 (2) SACR 540 (CC) (11 August 2016)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 151/15
In the matter
between:
MICHELL JOYCE
RADUVHA
Applicant
and
MINISTER OF SAFETY
AND SECURITY
Respondent
and
CENTRE FOR CHILD
LAW
Amicus Curiae
Neutral citation:
Raduvha v Minister of Safety and Security and
Another
[2016] ZACC 24
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Nkabinde J and Zondo
J
Judgments:
Bosielo AJ (unanimous)
Heard on:
25 February 2016
Decided on:
11 August 2016
Summary:
arrest and detention of a child —
arrest under
section 40(1)(j)
of the
Criminal Procedure Act 51 of
1977
— rights of a child in section 28(1)(g) and 28(2) of the
Constitution — police discretion police did not consider
child’s
best interests — discretion to arrest must comply
with the Bill of Rights — detention of a child must be a
measure
of last resort — appeal upheld with costs
ORDER
On appeal from the Full
Court of the Gauteng Local Division of the High Court, Johannesburg:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld with costs, including
the costs of two counsel.
4.
The order of the trial Court is set aside
and replaced with the following:
“
a)
The Minister of Police is liable to Ms Raduvha for damages that may
be proved.
b)
The Minister of Police must pay Ms Raduvha’s costs.”
5.
The order of the Full Court is set aside.
6.
The Minister of Police must pay Ms
Raduvha’s costs in the Full Court and the Supreme Court of
Appeal.
7.
The matter is remitted to the Gauteng Local
Division of the High Court, Johannesburg for the determination of the
amount of damages
payable.
JUDGMENT
BOSIELO AJ
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Nkabinde J and Zondo
J concurring):
Introduction
[1]
At the heart of this matter is the alleged
wrongful arrest and detention of Ms Raduvha (applicant) who was
15 years old at
the time. The applicant instituted a claim for
damages in the South Gauteng High Court, Johannesburg (High Court)
[1]
against the respondent arising from her alleged unlawful arrest and
detention. The High Court dismissed her claim.
[2]
Her appeal to the Full Court
[3]
was unsuccessful. Her petition to the Supreme Court of Appeal
having failed, she now seeks leave to appeal to this Court
against
the decision of the Full Court that confirmed the decision of the
High Court that her arrest and detention were lawful.
[2]
The application brings into focus the
duties, powers and responsibilities of police officers to arrest
those who may find themselves
on the wrong side of the law and the
rights and interests of children in that situation.
[3]
Section 205(3) of the Constitution mandates
the police to “prevent, combat and investigate crime, to
maintain public order,
to protect and secure the inhabitants of the
Republic and their property, and to uphold and enforce the law”.
In short,
the police are there to ensure that we can live, go about
our daily business and sleep peacefully in our homes at night.
This is a constitutional mandate. To assist them to carry out
these onerous constitutional responsibilities for the safety
and
security of our people, the law grants them a variety of powers,
including the powers to arrest and detain suspects, and enter
and
search premises and people under certain circumscribed circumstances.
[4]
On a different side of the spectrum is
section 28(2) of the Constitution, which proclaims that “a
child’s best interests
are of paramount importance in every
matter concerning the child”. To the extent relevant,
section 28(1)(g) goes further
and proscribes the detention of a child
except in instances where it is a measure of last resort.
[4]
Even in that case, detention shall be for the shortest appropriate
period, with due cognisance of the rights embodied in sections
12
[5]
and 35
[6]
of the Constitution.
[5]
Two crucial questions call out for an
answer: first, what does the best interests of the child mean?
Intricately allied to
this question is: what does it mean that these
best interests be accorded paramount importance? Second, what
does this require
of police officers who have to confront children in
conflict with the law in real life situations? In other words,
how does
section 28(2) impact on the power of police officers to
arrest under section 40 of the Criminal Procedure Act
[7]
(CPA)? Does this mean that police officers may never arrest and
detain children, even when they are in conflict with the
law?
This is what this appeal is about.
Background
[6]
The facts of this case might appear
prosaic. And yet they present us with an opportunity to
interrogate some constitutional
provisions which are crucial to our
fledgling constitutionalism and evolving culture of respect for human
rights. This is
important given our dark and painful history –
which we all committed ourselves to eradicate 22 years ago when we
ushered
in our fledgling constitutional democracy – a past
characterised by oppression and repression, abuse of State power and
a
wholesale denial of human rights to the majority of the people of
our country. A time where there was no place for the rule
of
law. Arrest and detention played a key role in the resolve of
the government of the day to maintain its much maligned
apartheid
regime. The police played a central role in maintaining that
regime. In facilitating this, the police resorted
to brute
force to arrest and detain. This was a culture within the
police force. This is the culture which our Constitution
aspires to eradicate and replace with a culture of human rights
permeating through all facets of our lives.
[7]
On 6 April 2008, two members of the South
African Police Service (SAPS) were sent to the house of Mrs Raduvha
to investigate a complaint
of contravention of a protection order
which had been issued against Mrs Raduvha. Upon arrival at her
home, the police officers
found her in the company of her family.
When the police officers attempted to arrest her, her 15 year old
daughter, Ms Michell
Joyce Raduvha, intervened and interposed herself
between her mother and the police officers to stop them from
arresting her mother.
The police officers regarded this as an
unlawful obstruction of the execution of their lawful duties.
Relying on section
40(1)(j) of the CPA, the two police officers
arrested the applicant for interfering with them in the execution of
their duties.
They then forcibly put her in the police
vehicle. Mrs Raduvha was also arrested for a violation of
the protection order.
Both the applicant and Mrs Raduvha were
taken to the nearest police station, where they were detained until
the next day when they
were released on warning after approximately
19 hours. Subsequently, the Public Prosecutor declined to
prosecute them.
Litigation history
High
Court
[8]
Based on the events set out above and on
the refusal to prosecute, both Mrs Raduvha and the applicant
instituted separate civil
claims against the Minister of Safety and
Security
[8]
(respondent) in the High Court, for unlawful arrest and detention,
estimated future medical expenses, legal expenses, general damages
and
contumelia
(insult
and scorn).
[9]
The respondent denied liability.
Reduced to its bare essentials, the plea denied that the arrest and
detention of both Mrs
Raduvha and the applicant were unlawful.
Regarding Mrs Raduvha, the respondent relied on the allegation that
she had acted
in breach of a valid warrant issued in terms of section
384(1) of the CPA. Concerning the applicant, the respondent
relied
on section 40(1)(j) of the CPA in that the applicant
obstructed the police officers wilfully whilst effecting a lawful
arrest.
[10]
Although the respondent denied during the
trial through the two arresting officers that he knew that the
applicant was a child during
the arrest, he conceded during the
hearing of the appeal that the two arresting officers knew that she
was 15 years old when
they ultimately booked her in at the
police station. Furthermore, the evidence of both police
officers was that even if they
knew that she was a child when they
arrested her, they would still have arrested her.
[11]
Concerning her detention, their explanation
is that notwithstanding that they knew that she was a child, they had
no authority to
release her. Only the commanding officer or
investigating officer could release her.
[12]
Regarding Mrs Raduvha, the High Court found
that both the arrest and subsequent detention were justified and thus
lawful as the
two police officers arrested her on the strength of a
valid warrant for contravening a protection order. Thus, they
were
protected by section 40(1)(b) of the CPA. Concerning the
applicant, the High Court found that her arrest and detention
were lawful as she wilfully obstructed the two police officers whilst
trying to arrest Mrs Raduvha, this being a contravention
of section
40(1)(j) of the CPA. As a result, the High Court accepted the
respondent’s version. In rejecting the
applicant’s
case, the High Court reasoned as follows:
“
Having
traversed the evidence, I am unable to find that [the two police
officers] exercised their powers in terms of section 40(1)(b)
and (j)
beyond the powers of the section. The jurisdictional facts set
out in the section are present in this case and the
Plaintiffs have
not alleged that such powers were exercised for any purpose other
than to bring the Plaintiffs before a court of
law. Had they
alleged that these powers were exercised for an ulterior purpose or
that the police officers were inspired
by mala fides or malicious
intent, the onus would have shifted and rested upon them to prove
such motive.”
[9]
Also in the judgment,
the High Court concludes that “[t]herefore, according to
Sekhoto
,
[10]
a police officer is entitled to act as empowered by section 40(1)(b)
without any further consideration
”.
[11]
[13]
Dissatisfied with the High Court’s
judgment, the applicant and Mrs Raduvha appealed to the Full Court.
In essence, the
Full Court endorsed the findings of the High Court
that, once the arresting officers were satisfied that all four
jurisdictional
requirements embedded in sections 40(1)(b) and
40(1)(j) of the CPA had been met, they were entitled to arrest them
without any
further consideration. The Full Court found that
there was no evidence to suggest that the arresting officers arrested
them
“for ulterior purposes, mala fide or arbitrarily”.
Like the High Court, the Full Court also relied on
Sekhoto
and dismissed the appeal with costs. In dismissing the appeal,
the Full Court held:
“
In
Sekhoto
the
court was faced with the question of whether or not an arresting
officer was obliged to consider not arresting a suspect (whom
he or
she was otherwise entitled to arrest) on the basis that there may be
other ways of getting the suspect to court. At
paragraph 22
Harms DP said: ‘I am unable to find anything in the provision
which leads to the conclusion that there is, somewhere
in the words,
a hidden fifth jurisdictional fact.’
In paragraphs 28-41,
the learned Deputy President discussed the nature of the discretion
exercised by the arresting officer.
He concluded that the
discretion must be exercised in good faith, rationally and not
arbitrarily. In the present case it
cannot be said that the
police officers arrested either mother or daughter other than
lawfully. There was neither pleading
nor evidence to the effect
that the police had effected the arrests for ulterior purposes, mala
fide or arbitrarily.”
[12]
Before this Court
[14]
Aggrieved by the judgment of the Full
Court, the applicant applied for special leave to appeal to the
Supreme Court of Appeal, but
the application was dismissed.
This prompted her to apply to this Court for leave to appeal against
the judgment of the Supreme
Court of Appeal. Hence this
application.
[15]
I interpose to state that Mrs Raduvha died
before the appeal was heard in the Full Court. The executor of
Mrs Raduvha’s
estate also applied for leave to appeal to this
Court. That application was dismissed on 16 September 2015 on
the basis that
it lacked prospects of success.
[16]
The applicant waged a two-pronged frontal
attack against her arrest and detention. Regarding her arrest,
the main thrust of
her contention was that, even if the police
officers were authorised by section 40(1) to arrest her, they acted
unlawfully and
irrationally in arresting her. This is because
section 40(1) gives them a discretion whether to arrest her or not.
This is based on the fact that the section uses “
may
”,
which is permissive and not “
must
”
or “
shall
”
which are peremptory. The contention was that the police
officers were required to consider the prevailing circumstances
and
to decide if they justified a summary arrest. The police
officers failed to exercise their discretion. It was submitted
that if the police officers had considered the facts they would have
come to the conclusion that an arrest was neither necessary
nor
justified, as they could have still secured her attendance in court
by other less invasive albeit efficient alternative methods.
[17]
For her second leg of attack, the applicant
placed strong reliance on section 28(2) of the Constitution
which provides that
in all matters concerning a child, a child’s
best interests are of paramount importance. The contention was
that, as
the applicant was a child, the police officers were obliged
to consider and accord her best interests as of paramount
importance.
The submission was that the police officers failed
to give effect to the constitutional injunction in section 28(2).
[18]
Furthermore, we were also urged to
interpret section 40(1) purposefully and to incorporate section
28(1)(g) and 28(2) as additional
requirements to section 40(1) of the
CPA, in line with South Africa’s constitutional values.
[19]
Her detention was impugned on the basis
that it was in conflict with section 28(1)(g) of the
Constitution, which demands that
a child should not be detained
except as a measure of last resort. It was submitted that on
the facts her detention was not
a measure of last resort, as she
could have been left in the care and custody of her father who was
present both during her arrest
at her home and her detention later at
the police cells.
[20]
The Centre for Child Law, whose main
objective is to promote the best interests of children, was admitted
as amicus curiae.
It has an interest in child justice related
matters, and particularly children who are arrested and detained.
In the main,
it presented an overview of instruments on juvenile
justice. These included the Convention of the Rights of the
Child,
[13]
the International Covenant on Civil and Political Rights,
[14]
the United Nations General Assembly’s Standard Minimum Rules on
the Administration of Juvenile Justice (Beijing Rules)
[15]
and the African Charter on Human and People’s Rights,
[16]
all of which advocate for and promote the best interests of the child
as an important consideration in all matters affecting a
child.
It submitted that section 28(2) of the Constitution seeks to align
itself with these instruments in according the
best interests of a
child paramount importance. The upshot of all this is that the
applicant’s arrest was unlawful
as it was in violation of
section 28(2) of the Constitution. It contended further that
the applicant’s arrest was unlawful
as it was against the
Police Standing Order (G)341 which declares explicitly that arrest
should be used as a last resort.
[17]
[21]
The applicant’s detention was
impugned on the basis that it was in violation of section 28(1)(g),
as the evidence proved that
it was not a measure of last resort.
[22]
I pause to observe that an important event
occurred a night before the hearing. The respondent had
initially filed heads of
argument defending the arrest and detention
of the applicant as being lawful. The argument was that the
police officers acted
strictly in terms of section 40(1) read with
40(1)(j) of the CPA. However, on the night preceding the
hearing, the respondent
appointed new counsel who abandoned the
previous heads of argument and filed a new set. He conceded
that both the arrest
and subsequent detention of the applicant were
unlawful. In essence, the respondent’s new counsel
expressly jettisoned
any defence to the appeal before us.
[23]
The respondent’s counsel commenced
his submissions by conceding that on the facts, the police officers
knew that the applicant
was a child. He submitted that an
arrest in terms of section 40(1)(j) requires the police officers to
prove that the applicant
acted wilfully. He contended that, as
she was a child, the police officers had to tender evidence that she
acted with intent.
He submitted that, as the police officers
failed to prove such intent, it could not be said that all the
jurisdictional requirements
necessary to justify an arrest under
section 40(1)(j) were met. Hence her arrest was unlawful.
[24]
In developing his argument further,
respondent’s counsel submitted, in line with his concession,
that section 40(1) does not
mean that once its jurisdictional
requirements have been met, the applicant had to be arrested. He
submitted that section
40(1) gave the police officers a discretion
whether to arrest or not. This required the police officers to
consider the prevailing
circumstances and decide if an arrest was
necessary. The discretion must be exercised properly, so he
submitted. He
contended further that every arrest, whether it
is of an adult or a child, must be objectively justifiable to be
lawful.
Crucially, he conceded that, in arresting the
applicant, the police officers failed to exercise their discretion,
with the result
that her arrest was unlawful.
[25]
He furthermore conceded that the police
officers failed to accord primacy to the applicant’s best
interests as commanded by
section 28(2) of the Constitution. As
this was not done her arrest was unlawful, so went his submission.
[26]
Concerning the applicant’s detention,
the respondent’s counsel conceded that her detention was in
violation of section
28(1)(g) of the Constitution, as she was a child
and further that it was not a measure of last resort.
[27]
Understood in their proper context, the
concessions made by the respondent’s counsel are tantamount to
an abandonment of the
merits of the appeal in the applicant’s
favour. All the essential elements constituting unlawful arrest
and detention
were conceded. As nothing was placed before us to
suggest that counsel did not have a mandate to make such concessions,
we
have no reason not to accept them.
[18]
Issues
[28]
Apart from the preliminary issues regarding
condonation and leave to appeal, the issues are:
(a)
Whether the detention as referred to in
section 28(1)(g) of the Constitution includes arrest.
(b)
Whether the applicant’s arrest and
detention were lawful.
(c)
Does section 28(2) of the Constitution
create an additional jurisdictional requirement for a lawful arrest
under section 40(1) of
the CPA?
(d)
If the applicant is successful on the
merits, should this Court determine quantum?
Condonation
[29]
The applicant’s petition to the
Supreme Court of Appeal was dismissed on 29 June 2015. The
application for leave
to appeal to this Court was filed on 18 August
2015. This application is late by almost a month. This
delay warrants
an explanation.
[30]
In a nutshell, the applicant ascribed her
delay to financial constraints and family difficulties brought about
by the passing away
of her mother. She avers that her financial
woes were exacerbated by the fact that her father is a pensioner
whilst she is
still a student. The delay is not inordinate and
the explanation appears to be reasonable. Furthermore, there is
no
suggestion that the respondent has suffered any prejudice.
[31]
Undoubtedly, this matter raises important
constitutional issues affecting the right to liberty, the right to
dignity and the rights
of children. The interests of justice
militate for the granting of condonation. Condonation is
granted.
Leave to appeal
[32]
This case pits the constitutional duty of
the police to prevent, combat and investigate crime as set out in
section 205 of the Constitution
against the rights of children in
conflict with the law, seen through the prism of section 28 of the
Constitution. This it
does in the context of the police power
to arrest and detain suspects in terms of section 40 of the CPA.
A number of constitutional
rights are at play. These are the
rights of people to their freedom,
[19]
dignity,
[20]
and the rights of children
[21]
contrasted with the duties of the police to safeguard society by
investigating, combating and preventing crime, and essentially
to
uphold and enforce the law.
[22]
The importance of the case to the general public is beyond question.
Furthermore, except for criminal matters involving
sentencing of
child offenders,
[23]
this Court has never had an opportunity to deal expressly with a case
involving the arrest and detention of a child in conflict
with the
law against the backdrop of section 28 of the Constitution.
To my mind, this case meets the threshold of the
interests of
justice. Moreover, there are reasonable prospects of success.
Leave to appeal is granted.
Discussion
Does
detention in section 28(1)(g) include arrest?
[33]
Counsel for the applicant urged us to find
that read purposively, and in the context of section 28(1)(g) of the
Constitution, there
is no distinction between an arrest and
detention. If there is any, he contended that it is merely
artificial as the effect
of both is the same in that they result in
interference with a person’s liberty.
[34]
The amicus argued that, although the two
processes are separate, in the context of section 28(1)(g) of the
Constitution, detention
can be interpreted to include an arrest.
[35]
For his part, counsel for the respondent
contended that an arrest is a pre-trial process. He submitted
that after an arrest,
police officers have a discretion whether to
detain or not. He urged us to find that these are two separate
processes.
[36]
A direct answer to this question must be
sought in the Constitution. Section 35 of the Constitution
treats arrest and detention
differently and in two separate
subsections. To the extent relevant, section 35(1) reads that
“everyone who is
arrested
for allegedly committing an offence” has specific rights.
[24]
Subsection (2), in turn, relates to “everyone who is
detained
,
including every sentenced prisoner” and recognises its own set
of rights.
[25]
Evidently, section 35(1) and (2) draws a bright line between
arrested and detained persons. Yacoob J articulated this
distinction clearly in
Thebus
as
follows:
“
The
three subsections intersect, complement each other and demonstrate a
logical pattern when viewed from the point of view of the
criminal
justice process that might unfold in relation to a person who is
suspected of having committed an offence. The first
step
envisaged is the arrest of a person for allegedly having committed an
offence. That person is not yet an accused and
the arrest
itself does not render him a detainee entitled to the right set out
in subsection (2). The rights in subsection
(1) and (2) will be
applicable to everyone who is arrested and thereafter detained.
Every person arrested for allegedly committing
an offence has
the right, at the first court appearance, to be charged, to be
informed of the reason for the detention to continue,
or to be
released. If she or he is released the process is at an end.
Presumably the person may be detained further
and informed that
the matter is under further investigation. In that event, the
person concerned remains a detainee and is
entitled to the rights
described in subsections (1) and (2). It is only if the person
is charged that he or she becomes an
accused and has the right to a
fair trial in terms of subsection (3).”
[26]
[37]
The CPA is aligned with section 35 of the
Constitution. It treats arrest as different and separate from
detention. The
authority of police officers to arrest resorts
under sections 40 and 41 of the CPA. Section 40(1) authorises
police officers
to arrest persons who commit or are suspected, on
reasonable grounds, of committing certain specified offences.
Section 41
authorises a police officer to arrest forthwith and
without a warrant any person who is reasonably suspected of having
committed
or of having attempted to commit an offence or who, in the
opinion of such a police officer, furnishes to the police officer a
name or address which the police officer suspects to be false.
[38]
Section 50 deals with the procedure after
arrest. Section 50(1) requires that any person who is arrested
with or without a
warrant for allegedly committing an offence or for
any other reason must be brought to a police station for detention as
soon as
possible. Any person who is arrested on a warrant shall
be taken as soon as possible to the place mentioned in the warrant
for detention.
[39]
As a result, I find that arrest and
detention are separate legal processes. The fact that both
result in someone being deprived
of his or her liberty, does not make
them one legal process.
Lawfulness of the arrest
[40]
The applicant launched a two-legged attack
against her arrest. First, she submitted that it was unlawful
as the police officers
failed to exercise their discretion in section
40(1). In essence, she argued that the police officers acted
irrationally.
Second, she contended that her arrest was
unconstitutional, as it was in violation of her rights enshrined in
section 28(2) of
the Constitution as the police officers failed to
give her best interests paramount importance.
[41]
The applicant was arrested for a
contravention of section 40(1)(j) of the CPA. This section
provides that “a police
officer may without a warrant arrest
any person who . . . wilfully obstructs him in the execution of his
duty”. It
is not in dispute that she interposed herself
between the police officers and her mother whilst the police officers
were trying
to arrest her mother. This led to the police
officers arresting and putting her in their vehicle. Crucially,
the police
officers conceded that she posed no threat to them; she
could be subdued with ease; there was no fear that, left free, she
might
commit another offence and she was not a flight risk.
Given these facts, did the police officers have to arrest her?
Put simply, was it a must that she be arrested?
[42]
Section 40(1) of the CPA states that a
police officer “may” and not “must” or
“shall” arrest
without a warrant any person who commits
or is reasonably suspected of having committed any of the offences
specified therein.
In its ordinary and grammatical use, the
word “may” suggests that police officers have a
discretion whether to arrest
or not. It is permissive and not
peremptory or mandatory. This requires police officers to weigh
and consider the prevailing
circumstances and decide whether an
arrest is necessary. No doubt this is a fact-specific enquiry.
As the police officers
are confronted with different facts each time
they effect an arrest, a measure of flexibility is necessary in their
approach to
individual cases. Therefore, it is neither prudent
nor practical to try to lay down a general rule and circumscribe the
circumstances
under which police officers may or may not exercise
their discretion. Such an attempt might have the unintended
consequence
of interfering with their discretion and, in the process,
stymie them in the exercise of their powers in pursuit of their
constitutional
duty to combat crime.
[43]
As section 40(1) grants police officers a
discretion whether to arrest, the two courts should have gone further
in their evaluation
of the evidence to determine whether the facts
justified an arrest.
[27]
This is so because an arrest is a drastic invasion of a person’s
liberty and an impairment of their rights to dignity,
both of which
are enshrined in the Bill of Rights.
[28]
[44]
In other words the courts should enquire
whether in effecting an arrest, the police officers exercised their
discretion at all.
And if they did, whether they exercised it
properly as propounded in
Duncan
[29]
or as per
Sekhoto
where
the court, cognisant of the importance which the Constitution
attaches to the right to liberty and one’s own dignity
in our
constitutional democracy, held that the discretion conferred in
section 40(1) must be exercised “in light of
the Bill of
Rights”.
[45]
Although both the High Court and Full Court
traversed the discretion embedded in section 40(1), as it was
elucidated in
Sekhoto
,
in their respective judgments – they did not appropriately
evaluate the facts to determine if the arrest was justified.
[46]
As far back as 1986, the Appellate Division
(now the Supreme Court of Appeal) enunciated the correct legal
approach in
Duncan
as follows:
“
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i.e. he may
arrest the
suspect. In other words he then has a discretion as to whether
or not to exercise that power. . . . No doubt
the discretion
must be properly exercised.”
[30]
This salutary
approach was confirmed in
Sekhoto
as follows:
“
Once
the jurisdictional facts for an arrest . . . in terms of any
paragraph of section 40(1) . . . are present, a discretion
arises. The question whether there are any constraints on the
exercise of discretionary powers is essentially a matter of
construction of the empowering statute in a manner that is consistent
with the Constitution.
In other
words, once the required jurisdictional facts are present the
discretion whether to arrest or not arises. The officer,
it
should be emphasised, is not obliged to effect an arrest
.”
[31]
[47]
Having established that police officers are
not obliged to effect an arrest, despite all the jurisdictional facts
being present,
the next questions arise: what amounts to a proper
exercise of discretion? Does the Bill of Rights have an impact
on the
common law understanding of how police discretion should be
exercised? These are the questions that the paragraphs which
follow seek to address.
[48]
As already indicated, the second attack was
based on the failure of the police officers to give the applicant’s
best interests
paramount importance as she is a child.
Section 28(2) demands, in peremptory terms, that in all matters
affecting a
child, her best interests are of paramount importance.
In the context of an arrest of a child, this requires of the police
officers, notwithstanding the fact that they are satisfied that the
jurisdictional facts in section 40 of the CPA have been met,
to go
further and not merely consider but accord the best interests of such
a child paramount importance. The following extracts
from the
evidence by the police officers clearly show that they did not care
if she was a child or not:
“
Counsel:
Could you not see . . . [that] you are dealing with a young girl, a
school girl?
Du
Plessis: It is not for me to decide what age she is.
Counsel:
I am not asking what age, or putting it to you.
Du
Plessis: It is not for me to determine what age she is.”
[49]
The following exchange and the responses by
Sergeant du Plessis, one of the arresting officers, is even more
telling:
“
Counsel:
You are telling us . . . [that] once you [effect] the arrest, it does
not make [a] difference whether [the arrestee] is
a minor or not . .
. your job is done, somebody else [must] make the decision?
Du
Plessis: My job [is] done there.
. . .
Counsel:
Had you known that [the applicant] was a minor, how would you have
dealt with her?
Du
Plessis: No she definitely would have been arrested.”
[50]
This indifferent and nonchalant attitude by
the police officers persisted throughout the arrest, as is
demonstrated by the responses
given by Sergeant du Plessis during his
cross-examination:
“
Counsel:
You did not ask her for any explanation, right? She was a young girl
against two really large police officers, she was
not any danger to
you is that correct?
Du
Plessis: That is correct.
Counsel:
You could have handled her with ease?
Du
Plessis: That is correct.
Counsel:
She never tried to run away or abscond from your presence is that
correct?
Du
Plessis: She was busy.
Counsel:
Did she run away or try and abscond from you or Constable Govender,
yes or no?
Du
Plessis: No.
Counsel:
She was not causing any physical harm to you or Constable Govender?
Du
Plessis: No.
Counsel:
She was not in any way threatening the complainant or harming the
complainant in your presence?
Du
Plessis: I cannot remember.
Counsel:
Well I put it to you she gives evidence she will say not at all, she
did not even deal with the complainant in your presence.
Du
Plessis: I would not remember that.
Counsel:
You would not remember that. Right, her father was present on the
scene. He was the driver of the car. He is
also 36 years
in the police, ex-policeman. He was there he was the driver of
the car, Mr Phinias Raduvha. You did not
speak to him?
Du
Plessis: No
Counsel:
You are not disputing that he was there and he was driving the car?
Du
Plessis: I do not dispute that he was there.
Counsel:
Right, her sister who was carrying a small baby, small baby boy, she
was also present on the scene, you did not arrest
her?
Du
Plessis: I could not remember that she was.”
[51]
It is against this backdrop that we have to
ask: why then did the police officers have to arrest the applicant?
The answers
by Sergeant du Plessis prove that there was no reason to
arrest her. What is more disconcerting is that the above
extracts
of the evidence reveal a lack of knowledge and appreciation
by the police officers of their constitutional obligation when
arresting
a child to consider her best interests as demanded by
section 28(2). They demonstrate that the police officers did
not care
whether the applicant was a minor or not. Sergeant du
Plessis said it expressly, that even if he knew that the applicant
was a minor, he would still have arrested her. This is because
he considers it to be his job to arrest. The fact that
the
arrestee is a minor would make no difference.
[52]
Furthermore, 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. No doubt such an approach to an
arrest of a minor
is incompatible with section 28(2). If the
police officers had considered the applicant’s best interests,
there would
have been no reason for them to arrest her. They
could have resorted to section 38 of the CPA, 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 the applicant’s arrest is inconsistent with the
Constitution and therefore unlawful.
[53]
Section 39(1)
[32]
commands a court, tribunal or forum, when interpreting the Bill of
Rights, to promote the values that underlie an open and democratic
society based on human dignity, equality and freedom. This is a
constitutional injunction. Both the High Court and
the Full
Court were constitutionally obliged to consider the evidence through
the lens of section 28(2) to determine if the police
officers
considered the applicant’s best interests, and if they did,
whether they accorded them paramount importance. However,
it
does not appear from the judgments of either Court that there was
compliance with this constitutional injunction.
[54]
Our courts are enjoined by section 39(1)
when interpreting any legislation to promote the values that underlie
an open and democratic
society based on human dignity, equality and
freedom. This requires of our courts to play a crucial role in
giving content
and meaning to the fundamental rights enshrined in the
Bill of Rights. Therefore the courts are the guardians of the
Constitution
and the values it espouses. In interpreting the
law they must infuse it with values of our Constitution. Courts
must
never shirk this constitutional responsibility.
[33]
[55]
Over two decades ago, we adopted our
Constitution. In doing so we signalled a decisive break with
our past – a ringing
rejection of a history of denial of human
rights to our people. We started an ambitious and laudable
project to develop,
nurture and infuse a culture of respect for human
rights in all aspects of our lives. We all committed ourselves
to a new
and egalitarian society founded on values of human dignity,
equality and freedom for all. Section 2 proclaims the
Constitution
to be the supreme law of the country. Importantly,
it declares that law or conduct inconsistent with it is invalid, and
further
that the obligations it imposes must be fulfilled. This
Constitution is underpinned by a Bill of Rights that, according to
section 7, is declared a cornerstone of our democracy. Section
7(2) commands the State, including the Judiciary, to respect,
protect, promote and fulfil the rights in the Bill of Rights subject
to the limitations in section 36 or elsewhere in the Bill.
[56]
However, this responsibility is not
confined to the courts. Section 7(2) talks of the State.
The Executive is also required
to honour the obligation to respect,
protect, promote and fulfil the rights in the Bill of Rights.
This is crucial as the
police are, in the daily execution of their
duties, involved in instances that have the potential to affect
people’s rights
to dignity, equality and freedom – which
are foundational to our democracy. Our people deserve a police
service which
is steeped in a culture of respect for human rights.
This requires them in all their dealings with society whilst
executing
their constitutional duties to be guided by respect for
human rights and strict observance of the rights to human dignity,
equality
and freedom.
[57]
It is trite that an arrest is an invasive
curtailment of a person’s freedom. Under any
circumstances an arrest is a
traumatising event. Its impact and
consequences on children might be long-lasting if not permanent.
The need for our
society to be sensitive to a child’s inherent
vulnerability is behind section 28(2) of the Constitution.
Section 28(2)
is broadly worded. The interests of children are
multifarious. However, in the context of arrests of children,
section
28(2) seeks to insulate them 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.
[58]
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. Invariably this puts them in an
invidious position. A question might be asked: how do they
execute their
constitutional mandate to prevent and combat crime
without falling foul of section 28(2)? 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.
[59]
Does the fact that section 28(2) demands
that the best interests of children be accorded paramount importance
mean that children’s
rights trump all other rights?
Certainly not. 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.
[60]
Reflecting on how our pre-1994 justice
system treated children, Ponnan AJA remarked poignantly in
Brandt
:
“
Historically,
the South African justice system has never had a separate,
self-contained and compartmentalised system for dealing
with child
offenders. Our justice system has generally treated child
offenders as smaller versions of adult offenders.
In
S
v Williams and Others
[1995] ZACC 6
;
1995 (3) SA 632
(CC) paragraph 74 the Constitutional Court in abolishing whipping
sounded ‘a timely challenge to the State to ensure the
provision and execution of an effective juvenile justice
system’.”
[34]
[61]
Contrary to the position pre-1994, our
constitutional dispensation has ushered in a new era – an era
where the best interests
of a child must be accorded paramount
importance in all matters affecting the child – an era where
we, as society, are committed
to raising, developing and nurturing
our children in an environment that conduces to their well-being.
This resolve was captured
admirably by Khampepe J in
Teddy
Bear Clinic
:
“
Children
are precious members of our society and any law that affects them
must have due regard to their vulnerability and their
need for
guidance. We have a duty to ensure that they receive the
support and assistance that are necessary for their positive
growth
and development. Indeed, this Court has recognised that
children merit special protection through legislation that
guards and
enforces their rights and liberties. We must be careful,
however, to ensure that, in attempting to guide and protect
children,
our interventions do not expose them to harsh circumstances which can
only have adverse effects on their development.”
[35]
[62]
In line with their constitutional
obligation, both the High Court and the Full Court were obliged
to interpret section 40(1)
of the CPA through the prism of section
28(2) of the Constitution to determine if the police officers had
accorded the applicant’s
best interests paramount importance.
This is a constitutional obligation imposed on them by section 39(2)
of the Constitution.
Should section 28(2) be
made an additional jurisdictional requirement?
[63]
The amicus curiae urged this Court, in line
with its constitutional mandate to promote and protect the values and
ethos that underpin
our Constitution, to find that section 28(2)
constitutes an additional jurisdictional requirement to those
embodied in section
40 of the CPA. The thrust of the submission
is that, because an arrest constitutes an infringement of a person’s
rights
to his or her liberty and dignity, both of which are enshrined
in the Bill of Rights, any arrest must be justifiable according to
the dictates of the Bill of Rights. The contention went further
that, in line with our nascent human rights culture, before
every
arrest is executed, police officers must consider whether there are
no less invasive methods which may be used to bring the
suspect
before court. Reliance for this proposition was placed on
Louw
,
[36]
a judgment of a single Judge. This argument was dismissed by
the Supreme Court of Appeal in
Sekhoto
.
[37]
[64]
In my view the nub of the enquiry should
not be whether this should be added to section 40 as an additional
jurisdictional fact,
but whether this should be considered in the
exercise of their discretion in section 40. Section 39(2)
enjoins the courts,
in interpreting legislation, to promote the
spirit, purport and objects of the Bill of Rights. This
requires courts to interpret
section 40(1) in line with these
constitutional values. However, the constitutionality of
section 40(1) was not attacked.
In essence, what the applicant
seeks is for this Court to amend section 40(1) by including or
reading-in section 28(2) as
an additional requirement.
Absent a formal constitutional attack, it is not open to this Court
to do that, as doing so would
be tantamount to an impermissible
amendment of section 40.
[38]
[65]
There is no need to make section 28(2) an
additional jurisdictional requirement. It is sufficient that in
arresting a child,
police officers must do it through the lens of the
Bill of Rights and pay special attention to the paramount importance
of the
best interests of such a child. The Constitution demands
that of the police as a constitutive part of the State.
[39]
A failure to do this would render such an arrest inconsistent with
the Constitution and thus unlawful.
Lawfulness of the
detention
[66]
Following upon her arrest, the applicant
was taken to the local police station for detention. But before
she could be detained,
she had to be booked in at the charge office.
This procedure includes writing down her personal particulars which
includes
her date of birth, address, etc. It was during this
process that she disclosed that she was 15 years old. The
respondent
conceded this before the High Court. Notwithstanding
this, the police officers detained her with Mrs Raduvha in the police
cells until she was released the next day on warning.
[67]
Section 28(1)(g) demands that a child
should only be detained as a measure of last resort. In its
ordinary and grammatical
meaning, the expression “a measure of
last resort” means that the detention of a child should happen
when all else
has failed. This requires police officers to
investigate other less invasive methods which can satisfy their
legitimate purpose
without having to detain a child. This is
because, first, a detention constitutes a drastic curtailment of a
person’s
freedom which our Constitution guards jealously, and
should only be interfered with where there is a justifiable cause.
Second,
detention has traumatic, brutalising, dehumanising and
degrading effects on people.
[68]
It is a known fact that our detention
centres, be it police holding cells or correctional centres, are not
ideal places. They
are not homes. They are bereft of most
facilities which one requires for raising children. It is worse
for children.
The atmosphere is not conducive to their normal
growth, healthy psycho-emotional development and nurturing as
children. The
evidence by the applicant’s expert witness,
Dr Fine, demonstrates the harm which an ill-considered detention of a
child might
have on such a child. The applicant was seriously
traumatised by this experience. Her detention has left her with
serious
psycho-emotional problems. Wounds that are still
festering.
[40]
These are the deleterious effects of incarceration against which the
Constitution seeks to protect children. This is
the reason why,
even when a child has to be detained, section 28(1)(g) stipulates
that it should be for “the shortest appropriate
time”.
[69]
Similar to the discussion on arrest, does
the constitutional injunction to safeguard children’s rights
mean that children
will never be detained?
[41]
The answer is also no. The need to detain a child is
necessarily a fact based inquiry that requires a balancing of
interests. Cameron J eloquently explains this balance in
Centre
for Child Law
:
“
The
constitutional injunction that ‘[a] child’s best
interests are of paramount importance in every matter concerning
the
child’ does not preclude sending child offenders to jail. It
means that the child’s interests are ‘more important
than
anything else’, but not that everything else is unimportant:
the entire spectrum of considerations relating to the child
offender,
the offence and the interests of society may require incarceration as
the last resort of punishment.”
[42]
[70]
Was the applicant’s detention in the
circumstances of this case justifiable as a measure of last resort?
Certainly not.
This is because: the applicant was arrested at
her parental home in the presence of both her parents and,
importantly, her father
was available and willing to take her into
his custody; nothing prevented the police officers from leaving the
applicant in the
custody of her father with appropriate instructions
to ensure her appearance in court; and significantly, the police
officers conceded
that she was not a flight risk. There being
no evidence that they considered her circumstances to determine if
her detention
was a measure of last resort, it follows that her
detention was in flagrant violation of section 28(1)(g). It is
therefore
unlawful.
[71]
Based on the above exposition, I conclude
that both the applicant’s arrest and detention were in flagrant
violation of her
constitutional rights in section 28(2) and 28(1)(g)
and thus unlawful. The appeal is upheld.
Quantum
[72]
During the hearing, the parties indicated
their willingness to enter negotiations regarding a possible
settlement of quantum.
They were given until 29 March 2016 to
try and settle quantum. Regrettably, they were unable to.
[73]
Although the High Court briefly mentioned
quantum, neither it nor the Full Court granted judgment on
quantum. As a result,
there cannot be an appeal where there is
no judgment. Furthermore for this Court to deal with quantum,
it will be acting
as both a court of first instance and an appeal
court. Self-evidently, this is undesirable as it will deny the
parties the
right of appeal.
[43]
It follows that the correct procedure is to remit the case to the
High Court, where the parties can adduce whatever relevant
evidence
in order to determine quantum.
[74]
I cannot but add, when the matter was
argued, an indication was made on behalf of the applicant as to the
expected quantum.
Likewise, the respondent advised how much he
was prepared to pay. Rather than pursue a trial on quantum, it
is in the interests
of the parties again to consider settlement with
all earnestness. This is especially so, seeing that they were
not far apart
at all.
Costs
[75]
There is no reason or principle to justify
a departure from the general principles regarding costs. Costs
must follow the
results.
Order
[76]
The following order is made:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld with costs, including
the costs of two counsel.
4.
The order of the trial Court is set aside
and replaced with the following:
“
a)
The Minister of Police is liable to Ms Raduvha for damages that may
be proved.
b)
The Minister of Police must pay Ms Raduvha’s costs.”
5.
The order of the Full Court is set aside.
6.
The Minister of Police must pay Ms
Raduvha’s costs in the Full Court and the Supreme Court of
Appeal.
7.
The matter is remitted to the Gauteng Local
Division of the High Court, Johannesburg for the determination of the
amount of damages
payable.
For the
Applicant:
D Berger SC, M Witz and S Kazee
instructed by Jothi Govender Incorporated
For the
Respondent:
D Joubert SC instructed by the
State Attorney
For the Amicus
Curiae: A Skelton and
R M Courtenay instructed by Centre for Child
Law
[1]
Now known as the High Court of South Africa,
Gauteng Local Division, Johannesburg.
[2]
Raduvha and Another v Minister of Safety and
Security
, unreported judgment of the
South Gauteng High Court, Case no 41997/2008 and 41998/2008 (7
August 2013) (High Court judgment).
[3]
Raduvha and Another v Minister of Safety and
Security
, unreported judgment of the
South Gauteng High Court, Case no 41997/2008 and 41998/2008 (17
April 2015) (Full Court judgment).
[4]
Section 28(1)(g) of the Constitution provides:
“
Every
child has the right—
. . .
(g)
not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for the shortest appropriate
period of time, and has the right to be—
(i)
kept separately from detained persons over the age of 18 years;
and
(ii)
treated in a manner, and kept in conditions, that take account
of
the child’s age.”
[5]
Section 12(1), in relevant part, provides:
“
Everyone
has the right to freedom and security of the person, which includes
the right—
(a)
not to be deprived of freedom arbitrarily
or without just cause.”
[6]
Section 35 makes provision for the rights of
arrested, detained and accused persons.
[7]
51 of 1977.
[8]
Formerly the Minister of Safety and Security and
now known as the Minister of Police.
[9]
High Court judgment above n 2 at para 56. The
mention of section 40(1)(b) was related to the arrest of Mrs Raduvha
and is thus not relevant to the matter before us.
[10]
Minister of Safety and Security v Sekhoto and
Another
[2010] ZASCA 141
;
2011 (5) SA
367
(SCA) (
Sekhoto
).
[11]
High Court judgment above n 2 at para 44.
[12]
Full Court judgment above n 3 at paras 13-4.
[13]
Convention on the Rights of the Child, 20
November 1989.
[14]
International Covenant on Civil and Political
Rights, 16 December 1966.
[15]
United Nations Standard Minimum Rules on the
Administration of Juvenile Justice (The Beijing Rules), 29 November
1985.
[16]
African Charter on Human and People’s
Rights, 27 June 1981.
[17]
Police Standing Order (G)341, section 3(1)
provides:
“
There
are various methods by which an accused’s attendance at a
trial may be secured. Although arrest is one of these
methods,
it constitutes one of the most drastic infringements of the rights
of an individual and a member should therefore regard
it as a last
resort.”
[18]
See
Matatiele
Municipality and Others v President of the RSA and Others
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at paras 66-7.
[19]
Section 12(1) of the Constitution.
[20]
Section 10 of the Constitution.
[21]
Section 28 of the Constitution.
[22]
Section 205(3) of the Constitution.
[23]
See
Centre for Child
Law v Minister for Justice and Constitutional Development and Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) (
Centre for
Child Law
).
[24]
Section 35(1) provides:
“
Everyone
who is arrested for allegedly committing an offence has the right—
(a)
to remain silent;
(b)
to be informed promptly—
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(c)
not to be compelled to make any confession or admission that could
be used in evidence against that person;
(d)
to be brought before a court as soon as reasonably possible, but
not
later than—
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours,
if
the 48 hours expire outside ordinary court hours or on a day which
is not an ordinary court day;
(e)
at the first court appearance after being arrested, to be charged
or
to be informed of the reason for the detention to continue, or to be
released; and
(f)
to be released from detention if the interests of justice
permit,
subject to reasonable conditions.”
[25]
Section 35(2) provides:
“
Everyone
who is detained, including every sentenced prisoner, has the right—
(a)
to be informed promptly of the reason for being detained;
(b)
to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c)
to have a legal practitioner assigned to the detained person by
the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(d)
to challenge the lawfulness of the detention in person before a
court and, if the detention is unlawful, to be released;
(e)
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; and
(f)
to communicate with, and be visited by, that person’s—
(i)
spouse or partner;
(ii)
next of kin;
(iii)
chosen religious counsellor; and
(iv)
chosen medical practitioner.”
[26]
Thebus v S
[2003]
ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (
Thebus
)
at para 103.
[27]
Minister of Safety and Security v Van Niekerk
[2007] ZACC 15
;
2007 (10) BCLR 1102
(CC);
2008 (1) SACR 56
(CC) at paras 17 and 20.
[28]
Sekhoto
above n
10 at para 40.
[29]
Duncan v Minister of Law and Order
[1986]
ZASCA 24
;
1986 (2) SA 805
(A) at 818G-H.
[30]
Id.
[31]
Sekhoto
n 10
above at para 28.
[32]
Section 39(1) of the Constitution, in relevant
part, provides:
“
When
interpreting the Bill of Rights, a court, tribunal or forum—
(a)
must promote the values that underlie an
open and democratic society based on human dignity, equality and
freedom”.
[33]
As Moseneke DCJ stated in “Transformative
adjudication, the fourth Bram Fischer memorial lecture”
(2002)
18
SAJHR
309
at 318:
“
The
Constitution has reconfigured the way judges should do their work.
It invites us into a new plane of jurisprudential
creativity and
self-reflection about legal method, analysis and reasoning
consistent with transformative roles. The new
legal order
liberates the judicial function from the confines of the common law,
customary law, statutory law or any other law
to the extent of its
inconsistency with the Constitution. This is an epoch making
opportunity which only a few, in my view,
of the High Court judges
have cared to embrace or grasp. A substantive, deliberate and
speedy plan to achieve an appropriate
shift of legal culture at the
High Courts and Magistrates’ Courts is necessary. After
all, it is the Constitution
that confers substantial review powers
on the judiciary. However, without an appropriate legal
culture change the judiciary
may become an instrument of social
retrogression. In time the judiciary will lose its
constitutionally derived legitimacy.”
Froneman J, in
Kate v
MEC for the Department of Welfare, Eastern Cape
[2005] 1 All SA
745
(SE) at para 16, makes the following pointed observation:
“
All
courts, including the High Court, are enjoined by the Constitution
to uphold the rights of all, to ensure compliance with
constitutional values, and to do so by granting ‘appropriate
relief’,‘just and equitable orders’, and
by
developing the common law ‘taking into account the interests
of justice’. In a new constitutional democracy
such as
ours that means that courts have to devise means of protecting and
enforcing fundamental rights that were not recognized
under the
common law.”
[34]
Brandt v S
[2004]
ZASCA 120
;
2005 (2) All SA 1
(SCA) at para 14.
[35]
Teddy Bear Clinic for Abused Children and
Another v Minister of Justice and Constitutional Development and
Another
[2013] ZACC 35
;
2014 (2) SA
168
(CC);
2013 (12) BCLR 1429
(CC) (
Teddy
Bear Clinic
) at para 1.
[36]
Louw and Another v Minister of Safety and
Security and Others
2006 (2) SACR 178
(T) (
Louw
)
at 186A-187E.
[37]
Sekhoto
above n
10 at para 22.
[38]
See
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18, where Wallis JA held:
“
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used. To do so in regard to a statute or
statutory instrument is to cross the divide between interpretation
and legislation.”
[39]
See [56] above.
[40]
In the psychiatric medico-legal report, Dr Fine
states that four years and four months following upon the incident
in question:
“
[S]he
presents with ongoing residual features of a Post-Traumatic Stress
Disorder, where that incident, occurring when she was
young, had
been particularly humiliating and traumatic to her . . . having
effects upon her academically, socially and physically.”
[41]
Above at [58].
[42]
Centre for Child Law
above n 23 at para 29.
[43]
Bruce and Another v Fleecytex Johannesburg CC
and Others
[1998] ZACC 3
;
1998 (2) SA
1143
(CC);
1998 (4) BCLR 415
(CC) at para 8.