The rights of a child not to be detained except as a measure of last resort have been confirmed by the Constitutional Court‚ which ruled yesterday (Thursday) that a teenager can go ahead with a claim for damages against the state, notes a BDlive report. Joyce Raduvha wants damages from the Minister of Safety and Security after she was arrested without a warrant. She was 15 at the time.

The police officers were responding to a complaint of assault and resultant breach of a protection order against her mother in April 2008. When her mother was arrested‚ the teen physically intervened and was ultimately arrested for obstructing police officers.

Both she and her mother were detained together in a cell at Brixton Police Station for 19 hours. Both were released on warning the next day. The prosecutors later declined to press charges.

Raduvha instituted an action in the Gauteng High Court (Johannesburg) for damages arising from her arrest and detention, but her claim was dismissed on the ground that her arrest and detention were lawful. An appeal to a full Bench was also dismissed and the SCA refused to grant her leave to appeal, following which she approached the Constitutional Court.

Full BDlive report

In a unanimous judgment handed down by Judge Lebotsang Bosielo‚ the Constitutional Court ruled that while police officers have a discretion to arrest‚ this discretion must be properly exercised in accordance with the facts of the case and the dictates of the Bill of Rights. Since the police officers failed to consider her best interests as a child in exercising their discretion to arrest her‚ the arrest was unlawful.

The court also held that her detention was unlawful, notes a TimesLIVE report. Her father was at the station and willing to take her home. As a result‚ the police officers’ decision to detain her was not a measure of last resort and was as a result inconsistent with the Constitution and invalid.

Bosielo commented that the Constitution ‘seeks to insulate (children) 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’.

‘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...’

Full TimesLIVE report

Raduvha v Minister of Safety and Security and Another