‘Arrests and detention are not measures our Constitution created to apply to juvenile offenders. While it is clear that children can still be arrested and detained, police officers should not be so quick to exercise these measures against minors,’ says Safura Abdool Karim, in an analysis of the Constitutional Court judgment in Raduvha v Minister of Safety and Security and Another on the GroundUp site.

She notes that the court was aware that it had to balance two rights: the child’s right to not be detained and the duty of the police to prevent, combat and investigate crime. However, the court said it was clear – in this case – that the child’s interests were not taken into consideration when the police officer arrested her. Judge Lebotsang Bosielo, in a unanimous judgment, found the police officer’s actions to be disconcerting.

Karim says the judgment highlights that the police actions ‘show a lack of understanding of their constitutional obligations, particularly with regard to minors. It is scathing about the officer’s conduct and emphasises the important role police officers play in protecting human rights in a democratic SA, particularly given the role police played in oppressing these rights during apartheid.’ While the court acknowledged that there are certain circumstances in which a child may need to be arrested, this should be a last resort.

The judgment said: ‘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.’

Full analysis on the GroundUp site

Raduvha v Minister of Safety and Security and Another