Mother detained with baby for 72 hours awarded R180 000 in damages by Court

On the 7th of July 2015 Selina Moyo** was walking on Stasie Street heading towards Birchleigh train station, in Kempton Park. She was coming from her place of employment where she worked as a domestic worker. Upon her arrival at Birchleigh station she was stopped by two South African Police Services (SAPS) officials, little did she know that her refusal to pay a bribe will result in her spending 72 hours behind jail with her 8 month old baby.

Selina fled her country of origin due to political persecution in 2010 and duly applied for asylum at the Marabastad Refugee Reception Office. She was subsequently issued with a temporary asylum seeker permit in accordance with the Refugees Act 130 of 1998 (Refugees Act). She has renewed her asylum seeker permit periodically as required by the conditions of her permit.

When Selina was stopped by the SAPS officials she was asked where she was coming from and where she resides. She told them that she was coming from work and that she was returning to her home in Tembisa. They further requested that she identify herself and, she immediately produced a valid certified copy of her asylum seeker permit.

The police officials acknowledged that Selina’s permit was valid but alleged that the commissioner of oaths’ stamp on her permit had expired. Subsequently, Selina was arrested and informed that she was being charged for being an illegal foreigner. Selina was never informed of her rights during the the time of her arrest.

Selina’s arrest was unlawful and the police officials’ conduct in charging Selina with being an illegal foreigner after they had acknowledged her documentation was valid was unreasonable.

Whilst driving to the police station, one of the SAPS officials requested that Selina give her money to buy chickens. Selina informed the police officials that she did not have any money. The SAPS official responded by informing Selina, that if she had given her the money she would have been released.

When Selina arrived at the Tembisa police station, she informed the SAPS official on duty that she was currently breastfeeding her 8 (eight) months old baby and she was the child’s primary caregiver. She also informed the SAPS officials that the baby was at crèche waiting to be collected by her. The police officials responded by telling Selina to phone someone to bring the baby to her.

Selina’s husband arrived at Tembisa police station with her original asylum seeker permit and their 8 (eight) months old baby. Despite Selina’s husband producing her original asylum seeker permit she was not released. Instead, the police instructed her to care for her baby in the dusty unsanitary police cells, which were occupied by numerous other detainees.

The immigration official’s conduct was unlawful and amounted to a violation of the verification guidelines stipulated in section 37 of the Immigration Act 13 of 2002 (the Immigration Act).

As a result of the unnecessary and unlawful detention, Selina’s baby developed a terrible cough because of the large amount of dust and lack of ventilation in the holding cells. The cough was not attended to. Selina was not able to bath her child throughout the detention period. Even when she notified the SAPS officials that her child needed to go to the clinic, her cries fell on deaf ears.

On 10 July 2015, Lawyers for Human Rights approached the High court of South Africa (Gauteng Division, Pretoria) requesting that Selina and her baby be urgently released from Tembisa police station. Selina’s detention was declared unlawful and the request for her release was granted. As a result of the urgent application, Selina was released.

Selina and her baby were detained for a total period of 72 (seventy two) hours.

Despite charging Selina as an illegal foreigner, the police kept Selina and her baby detained for over 48 hours and failed to bring her before a Court. This highlights the importance of the latest ruling made by the Constitutional Court. The Court unanimously found that sections 34(1)(b) and (d) of the Immigration Act are inconsistent with the Constitution and therefore invalid. The Court ruled that the rights guaranteed in section 12 and 35 of the South African Constitution—the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial—apply to foreign nationals as well as South African citizens.

Subsequent to her release, Selina went to her place of employment on 13 July 2015 where she worked as a domestic worker earning R2 200, 00 per month. Her employer informed her that she was unable to continue employing her because she had been charged with a criminal offence and she could no longer trust the validity of Selina’s immigration documentation and the lawfulness of her stay in South Africa. Selina’s arrest and detention rendered her an untrustworthy person in the eyes of her employee.

Taking all of the above in account, on the 27^th of September 2017, the Pretoria Regional Court declared that Selina’s arrest and detention were unlawful and directed that theMinister of Police and National Commissioner of Police should pay Selina R180 000.00 in damages. The magistrate stated that this amount does not, in anyway measure the amount of pain and trauma suffered by Selina and her daughter.

The SAPS conceded to all the averments made by Selina including the allegations of corruption and bribery, , simply meaning they are aware of such incidents and are not doing enough to address such behaviour.

**Selina is not the real name our client, her identity was hidden because the case included a minor.

Written by Faith Munyati and Edited by Carol Mohlala