Constitutional Court of South Africa
 ZAC 24
11 August 2016
Constitution of South Africa, Section 28(1)(g) – detention of children as a last resort
Constitution of South Africa, Section 28(2) – the best interests of the child
Criminal Procedure Act 51 of 1977
Police went to the house of a 15 year old girl, to investigate a complaint that her mother had contravened a protection order. When the police tried to arrest her mother the girl intervened, police arrested the mother and daughter and detained them at the nearest police station overnight before releasing them with a warning. The public prosecutor decided not to bring any charges, but the girl and her mother filed separate complaints alleging that they had been unlawfully arrested and detained. The High Court dismissed the claim and the Supreme Court of Appeal refused to hear an appeal. The girl appealed to the Constitutional Court.
Issue and resolution:
Arrest and detention; best interests of the child; detention as a last resort. The arrest violated the constitutional principle that the best interests of the child paramount importance in every matter concerning the child. The detention was unlawful as it had not been used as a last resort.
The court considered the arrest and detention of the girl as two separate issues. The court found that under national law, the police had a discretion as to whether they arrested a person who obstructs them in their duty and when considering whether to arrest a child, they must make this decision with reference to the Constitutional requirement that the best interests of the child must be paramount. Based on the evidence of the officer, the court found that he had not considered the best interests of the child in deciding whether to carry out the arrest and so the arrest was unconstitutional and unlawful.
The court interpreted the constitutional requirement that the detention of a child must be a last resort as requiring that it must only be used when all else has failed. The court decided that the alternatives to detention had not been considered and highlighted that the girl was arrested at her parent’s home, her father was available and willing to take her, nothing prevented the police officer from leaving the girl with her father with appropriate instructions to bring the girl to court if required and that the girl was not a flight risk.
The case was returned to the High Court to determine any damages.
Link to full judgement:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.