Cops lashed for slamming mom and twins in cell
Damages for police misconduct runs into the billions. What has gone wrong?
A Soweto mother who was unlawfully arrested and held in a dank police cell with her 18-month-old twins – without food or a change of nappies – has won a costly victory over the police ministry.
The South Gauteng High Court has ordered that the police pay R450,000 in damages.
She and her husband had been accused of stealing a shack, and without a warrant or any just cause the pair and their children were arrested and held.
This comes as the police ministry grapples with the skyrocketing cost of the unlawful or inept actions of their officers, with misconduct claims costing the force nearly R1.5bn over the past five years. Judge Majake Mabesele found the heavy-handed move by the police was patently unlawful, while placing babies in a prison cell was worthy of condemnation.
“[This] clearly demonstrates that the arresting officer had no respect for human dignity. The arrest and detention were malicious. On the other hand, the baby twins were subjected to maltreatment, degradation and pain,” he said in his judgment handed down last month.
Elaine Afrika’s ordeal began on a chilly night in August 2014 while she was walking home from work.
Carrying a steaming packet of chips – bought with her weekly wage of R400 – Afrika snaked her way through the side-streets of Kliptown.
It was payday and she’d already told her family not to cook because she would be bringing home supper.
Before she reached her home she was stopped by a police van and when she was handcuffed and bundled into the police car, she found her husband inside.
“Her pleas of innocence were ignored, as were her desperate attempts to get the officers to allow her to go home and breastfeed her toddlers,” Mabesele found.
“When they arrived at the Kliptown police station she explained to the police that she did not steal a shack as alleged and that it was bought by her husband.
“She was locked in the holding cell for the whole night with her baby twins who had no extra clothes and napkins and were crying throughout the night. She was holding them in her arms and watched them cry but could not do anything because prison was not their home or her house where she could whisper into their ears in the usual manner which they are used to and plead with them to calm down and sleep. The children were restless. At times they stopped crying due to tiredness since they were not provided with a bed to sleep on,” Mabesele found.
“Considering the trauma and pain suffered by the first plaintiff [Afrika], not only as a result of her unlawful and malicious detention for 16 hours but also the pain of seeing her babies cry the whole night wearing wet napkins full of faeces, I am of the view that an award in an amount of R250,000 for her and R100,000 in respect of each baby is appropriate.”
Institute for Security Studies researcher Gareth Newham said police misconduct occurred on a grand scale and that the buck stopped with the taxpayer.
“In the most recent financial year the police paid out R343,395,00 as a result of police misconduct. In the past five years the police have paid out R1,518,479,000 to victims. The bulk of this is the result of unlawful arrests and detentions, and civil claims paid out by the police has increased 498% since 2008/9,” he said.
Newham said the root cause was a general lack of discipline and accountability within the rank and file of the SAPS.
“The police’s disciplinary system has deteriorated notably in recent years. Five years ago, 5,578 disciplinary hearings against police officers were held following investigations that found evidence of misconduct. Last year, the police only managed to hold 1,960 disciplinary hearings. This is a very serious decline of 65%.”
Most police officers who make unlawful arrests are never held accountable, he said.
Phelephelaphi Dube, of the Centre for Constitutional Rights, said that often when confronted with claims of unlawful arrest, the state adopted an adversarial approach.
“This leads to lengthy and drawn-out court cases in which the state, when found liable, is forced to pay not only substantive amounts as damages, but also to pay for the claimant’s legal costs. This is a cost borne by the South African taxpayer and is yet again an example of wasteful expenditure,” she said.
She said that the arresting officer was ignorant, not only of the law which he had to enforce, but also the rights of children.
“The disregard of the rights of the minor children and placing them in detention is a gross violation of the best interests of the child principle, which demands that the best interests of the child are given paramount importance in every matter involving children.
“While South Africa has astronomical rates of crime, it is vital that the SAPS, in responding to crime, performs a balancing act between the public interest in crime fighting and respecting the rights of suspects,” Dube said.