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March 21 2013 at 08:28
Top police officials regularly suffer from foot in mouth disease when
appearing at the Marikana inquiry, but even when their legal representatives
speak for them in court they don’t do much better.
Just ask Steven Mothoa, whose case against the Minister of Police was
finalised this month in the Johannesburg High Court.
The police made a long list of admissions about Mothoa’s unlawful arrest
and detention, so this was different from most matters in which outraged
members of the public sue the police.
They admitted Mothoa’s arrest by three officers as he walked home from
work in August 2010 was unlawful. They stopped Mothoa and without identifying
themselves. They assaulted and searched him. They didn’t tell him he was being
arrested or why they were taking him into custody.
Police admitted Mothoa was then unlawfully taken to the holding cells at
the Joburg Central police station, where he was given food and water only 14
hours later; he was locked up with many others in an “unhygienic, dirty,
stinking holding cell with only one open toilet that did not work, but in which
inmates relieved themselves in full view of others”; and that he had to “sleep
on a cold cement floor without a mattress and only one filthy, smelling
blanket”.
He was never taken to court. And 22 hours later police simply told him
to go home. Acting Judge R Hutton said police had conducted themselves in an
“egregious manner” and there had been no reason for arresting Mothoa. There was
a good reason why the law said anyone being arrested must be told why, said the
judge – it stopped police making arbitrary arrests. In this case police had
given no reason because there was none, he added. Moreover, since they had
admitted that Mothoa submitted to his arrest, there had been no reason to use
force and the police had abused their power.
The circumstances under which Mothoa had been detained were appalling,
said Judge Hutton. He had endured 22 hours of detention for no cause. The
“disgraceful manner” in which he was treated was exemplified by the fact that
he was simply told to go home. “This,” said the judge, “demonstrates that there
was never any intention to bring charges of any nature” against Mothoa, and
that he had been subjected to “unlawful punishment”.
The judge said the conditions under which Mothoa had been held violated
his rights: the constitution said anyone who was “detained” had the right to
conditions “consistent with human dignity” but the conditions under which
Mothoa had been held were “entirely inconsistent” with these rights. Reading
the judgment, I found the response of police legal representative Thabo Higa
offensive. He argued that the right of detainees to be held under conditions
consistent with human dignity didn’t apply to holding cells, a submission to
which the judge took exception. As to Mothoa’s appalling experience in the
cells, Higa told the court that arrested people “aren’t entitled to be put up
in a hotel”.
The court said this comment was “distasteful and unbecoming of counsel
representing a minister of state”, adding: “The state is obliged to take its
constitutional duties seriously and those representing the state in litigation
are required to act in accordance with that duty.”
Higa suggested compensation of |R40 000 to R45 000, but even though it
is rare for a court to grant the full amount claimed, Judge Hutton awarded the
R150 000 plus costs that Mothoa’s lawyers urged. We want to know whether it’s
now police policy to deny constitutional rights to people in holding cells.
Police officials should also say whether Higa’s comment on the disgusting
conditions in the holding cells – that a detained person couldn’t expect to be
“put up in a hotel” – is officially-sanctioned sarcasm. As taxpayers whose
money will compensate Mothoa for his experience, we want to know if there is an
official inquiry.
When a judge concludes police acted from “improper motives”, from
“malice” and simply to “harass” a member of the public, we are entitled to know
what action will be taken.
Or have the police forgotten that South Africa is a constitutional
state? |l Retired Constitutional Court Justice Laurie Ackermann has a new
book out called Human Dignity: Lodestar for Equality in South Africa. Published
by Juta, it will be launched at the Constitutional Court on April 30. Perhaps
someone can organise a copy for the police?
