Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

South Africa: Constitutional Court Confirms Right of a Child not to be Detained Except as a Measure of Last Resort

(Aug. 26, 2016) On August 11, 2016, South Africa’s Constitutional Court found unconstitutional the arrest and detention of a 15-year-old child by the police and upheld her claim for damages for wrongful arrest and detention against the Minister of Safety and Security.  (The Right of a Child Not to Be Detained Prevails, BUSINESS DAY LIVE (Aug. 11, 2016); Michell Joyce Raduvha v. Minister of Safety and Security, CCT 151/15 (Aug. 11, 2016), Constitutional Court of South Africa website.)


The applicant was arrested without a warrant for obstruction of justice when she physically interfered with the police after they attempted to arrest her mother in the family home, while her father was also present, in response to “a complaint of contravention of a protection order” that had been issued against the mother.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 7.)  Both the applicant and her mother were subsequently arrested, detained for 19 hours at a nearby police station, and released with a warning.  (Id.)  While the government did not pursue any charges against them, they each instituted civil claims for “unlawful arrest and detention, estimated future medical expenses, legal expenses, general damages and contumelia (insult and scorn).”  (Id. at ¶ 8.)

All previous judicial venues had sided with the police.  The South Gauteng High Court, the court of first instance, found the arrest and detention legal and dismissed the child’s claim.  (Id. ¶ 1.)  The Court found that the arrest and detention of the applicant were justified given the fact that she intentionally obstructed the police, who were trying to arrest her mother, and that that action met the jurisdictional requirement under the Criminal Procedure Act, which states that “[a] peace officer may without warrant arrest any person … who wilfully obstructs him in the execution of his duty.”  (Id. ¶ 12; Criminal Procedure Act (CPA) 51 of 1977, § 40(1)(j) (May 6, 1977),  Pretoria University website.)  The girl’s appeal to the Full Court was unsuccessful, and the Supreme Court of Appeal declined to hear the case, in essence upholding the lower courts’ decisions.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 12.)  This prompted her to seek leave to appeal to the Constitutional Court.

The Constitutional Court Case

The applicant’s case was built on two main arguments.  The first noted that the power of the police under section 40(1) of the CPA is discretionary and that the police officers were “required to consider the prevailing circumstances and to decide if they justified a summary arrest.”  (Id. ¶ 16.)  The police failed to exercise their discretion and to recognize that “the arrest was neither necessary nor justified.”  (Id. ¶¶ 16 & 40.)

The second contended that the arrest was a violation of the applicant’s rights as a child under the 1996 Constitution.  The Constitution states, “[a] child’s best interests are of paramount importance in every matter concerning the child,” and the applicant argued that “the police officers failed to give effect to the constitutional injunction.”  (Id. ¶ 17; Constitution of the Republic of South Africa, No. 108 of 1996 (in force on Feb. 4, 1997), § 28(2), South African Government portal.)  In addition, the Constitution states, “[e]very child has the right … not to be detained except as a measure of last resort … .“  (Constitution of the Republic of South Africa, § 28(1)(g).)  The plaintiff argued that her arrest was not a measure of last resort because she could have been left in the custody of her father, and it was therefore a violation of the Constitution.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 19.)

The Court found that given that 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,” the lower courts should have evaluated the evidence before them to determine whether the facts justified the arrest, which they failed to do.  (Id. ¶¶ 43 & 45.)  The Court further found that, because the applicant was a child, in addition to meeting their jurisdictional standard under section 40 of the CPA, the police officers were required to give her best interest paramount importance.  (Id. ¶ 48.)  The Court stated that the police:

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.  (Id. ¶ 52.)

The Court further noted:

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.  (Id. ¶ 70.)

The Court held that “both the applicant’s arrest and detention were in flagrant violation of her constitutional rights in sections 28(2) and 28(1)(g) and thus unlawful.”  (Id. ¶ 71.)