Widow unlawfully arrested and sexually harassed by police

2017-10-11 14:03

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Durban - It appears South Africans have become "resigned" to the appalling conditions of detention in police cells.

"It has become normal... but it should be elevated as a matter of a constitutional right, for which remedies have to be found," High Court Judge Dhaya Pillay said in a recent judgment.

The judge ruled that the office of the Minister of Police is liable to compensate a 42-year-old for her unlawful arrest, detention and "intolerable treatment" at the hands of the police at two Durban police stations.

She also found that the recently-widowed mother - arrested on suspicion of being involved in the murder of an insurance broker - had been sexually harassed by one of the police officers.

Evidence at the civil trial was that the woman had been arrested at her place of work in August 2011, and then taken by the police to arrest her brother. 

On the drive there, one of the officers sat next to her, put his hands on her knees and "passed sexual innuendos".

She was detained at the Phoenix police station - where she was again sexually harassed - and at the Tongaat police station, before being released without charge two days later.

'Filthy toilet, stench of rotting food'

Pillay said that there had been insufficient evidence to arrest the woman in the first place.

"She had not been interviewed before being arrested and, instead of interviewing her afterwards, she was interrogated. There was no attempt to verify any information she gave, and the only inference is that the purpose of her arrest and detention was to intimidate and harass her."

Turning to the conditions under which she was kept, the judge said it was unfortunate that neither side had invited the court to inspect the cells.

"The undisputed evidence of the plaintiff was she started menstruating after she was sexually harassed in the toilet. The police refused to provide her with a change of clothes. 

"At Phoenix, she said she was forced to share cell, a mattress and a blanket with two women. She slept next to a filthy toilet, breathing in the stench of rotting food and faeces which littered the cell. In her words, it was 'inhumane'.

"At Tongaat, she was detained alone in a small cell, in which there was nothing more than a concrete block and a filthy toilet. She asked for toilet paper, but received none. Her pants were soiled."

Pillay said she had searched for cases in which inhumane conditions of detention were found to be cruel and unusual punishment. However, "surprisingly", she could not find a South African case, "considering there are many reported cases of torture in detention" and the Constitution and Bill of Rights outlawed cruel and inhumane treatment.

'Inhumane and intolerable'

One explanation, she said, could be a weak knowledge of such rights.

"The quality of our detention facilities should be a matter of public interest. They are a projection of what we are as a nation and how we will deliver on our constitutional and international human rights obligations.

"Paying compensation does not resolve the problem of the appalling conditions. 

"In this instance, the plaintiff was not a convict and should not have been punished. But the conditions of her detention were tantamount to this. Her complaint is pitched at the most basic levels of hygiene, adequacy of beds, blankets and toilet paper.

"I find the intolerably unhygienic environment in the cells at both police stations were inhumane and intolerable."

Pillay said that these conditions - the sexual harassment and the failure to allow her access to her family - had impinged on her human dignity, amounted to cruel and unusual treatment, and denial of her rights as a detainee.

The amount of compensation will be determined either through negotiation or at a further trial.

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