Unlawfully arrested woman kept in filthy police cell awarded R120k in damages

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A woman was awarded R120 000 in damages.
A woman was awarded R120 000 in damages.
PHOTO: Michele D'ottavio, EyeEm, Getty Images
  • A Gauteng woman was awarded R120 000 in damages for unlawful arrest. 
  • The woman was arrested in 2015 after being accused of throwing rubbish and stones through her first-floor window on top of another resident's carport.
  • The woman testified that when she was arrested she was kept in a filthy police cell. 

A Gauteng woman was awarded R120 000 in damages after the Supreme Court of Appeal (SCA) found she was arrested unlawfully seven years ago and kept in a filthy police cell.

Avril Edith Diljan was arrested after a Ms Goliath in Eldorado Park lodged a complaint with the Community Service Centre (CSC), accusing the woman of damaging her carport by throwing stones and rubbish through her first-floor window on top of her carport.

Two officers on patrol inspected the carport and apparently said that it was damaged. They agreed that Diljan had committed an offence of malicious damage to property.

They immediately arrested her and kept her at Eldorado Police Station. Both officers testified during the trial that they had no power to either release Diljan on warning or on bail.

Diljan testified in court that in September 2015, when she was arrested, the "officers asked her to accompany them to the police station under the pretext that they were to discuss the complaint lodged against her by Ms Goliath".

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When they arrived at CSC, she was arrested and detained. She said she was never advised of the reason for her arrest and detention.

Diljan was released four days later without appearing in court. She said the conditions under which she was detained were appalling.

But the magistrate found Diljan's detention was lawful. On appeal, the high court also confirmed the decision of the magistrate.

However, the SCA disagreed with the finding of both the lower courts. Acting Judge of the Appeal Court Mandela Makaula said what emerged from the record was that both officers who effected the arrest did not know they had discretion. 

"They laboured under the mistaken belief that their obligation was to arrest the appellant once it was reasonably suspected that she had committed a Schedule 1 offence. Thus, they could not have exercised a discretion they were unaware of. Constable Ntombela (the officer who arrested Diljan) testified that he could not have warned the appellant because he 'did not have powers' to do so."

"In the same vein, Constable Tsile stated the following: 'Unfortunately we do not have those powers because it is a different department'.

"Accordingly, that they did not exercise a discretion that they unquestionably enjoyed is beyond dispute. It must therefore follow axiomatically that both the arrest and subsequent detention of the appellant were unlawful. Indeed, counsel for the respondent was ultimately constrained to concede as much."

The judge also focused on the "appalling" circumstances under which Diljan was detained.  

Makaula said:

… the condition of the police cell in which she was detained was filthy with no hot water; the blankets were dirty and smelling; the toilet was blocked; she was not provided with toilet paper, and she was not allowed visitors. She could not eat the bread and peanut butter that was the only food provided to her. She was deprived of visitation rights by her family and that resulted in her not receiving medication for her heart condition.

"Furthermore, the humiliation she endured at the time of her arrest, exacerbated by the presence of the occupants of the neighbouring apartments (including her children and grandchildren); she was also deprived of her liberty for three days; her standing in the community as a community caregiver was impaired.

"As previously indicated, her compensation should be commensurate with the damages she suffered and also be a reasonable amount. Taking into account all relevant factors, I am satisfied that a fair and reasonable amount in the circumstances is R120 000."

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