TOP police officials regularly put their feet where their mouths should be when appearing in person 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 earlier this month in the high court, Johannesburg.

The police made a long list of admissions about Mothoa’s unlawful arrest and detention, so this was rather different from most matters in which outraged members of the public sue the police but must first prove every allegation.

They admit Mothoa’s arrest by three police officers as he walked home from work in August 2010 was unlawful. They stopped him and without identifying themselves they assaulted and body-searched him. They didn’t tell him he was being arrested or why they were taking him in to custody.

Police admit Mothoa was then unlawfully taken to the holding cells at the Johannesburg 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 he had to ‘sleep on a cold cement floor without a mattress and only one filthy, smelling blanket’. He was never taken to court – 22 hours later police simply told him to go home.

Acting Judge R Hutton said police conducted themselves in an ‘egregious manner’ and there was no conceivable reason for arresting Mothoa.

There’s a good reason why the law says anyone being arrested must be told why, said the judge: it stops police making arbitrary arrests. In this case police gave no reason because there was none, he added. Moreover, since they admitted Mothoa submitted to his arrest there was no reason to use force against him and the police had grossly abused their power.

The circumstances under which Mothoa was detained were appalling, said Judge Hutton. He endured 22 hours of detention for no cause whatsoever. The ‘disgraceful manner’ in which he was treated was exemplified by the fact that he was simply told to go home, rather than being charged. ‘This,’ said the judge, ‘demonstrates that there was never any intention to bring charges of any nature’ against Mothoa, and that he was being subjected to ‘unlawful punishment’ by the police for an unknown reason.

The judge said the conditions under which Mothoa was held violated his rights – the constitution says anyone who is ‘detained’ has the right to conditions ‘consistent with human dignity’ but the conditions under which Mothoa was held were ‘entirely inconsistent’ with these rights.

Reading the judgment I found the response of police legal representative, Thabo Higa, almost as offensive as the police behaviour in the first place. He argued that the right of detainees to be held under conditions consistent with human dignity – including food and exercise – didn’t apply to holding cells, a submission to which the judge took strong exception.

As to Mothoa’s appalling experience in the cells, Higa told the court: arrested persons ‘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 – 45 000 would be enough. But even though it’s rare for a court to grant the full amount claimed, Judge Hutton did not hesitate to award the R150 000 plus costs that Mothoa’s lawyers urged.

I want to know – and I’m sure you do too – 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, namely that a detained person couldn’t expect to be ‘put up in a hotel’, is officially sanctioned sarcasm.

As tax payers whose money will compensate Mothoa for his appalling experience we want to know if there’s been any official inquiry into this incident. When a judge concludes police acted from ‘improper motives’, from ‘malice’ and simply to ‘harrass’ a member of the public, we are entitled to know what action will be taken against the guilty police. Or have the police forgotten this is a constitutional state?


* Retired constitutional court justice Laurie Ackermann has a new book out called Human Dignity: Lodestar for Equality in South AfricaPublished by Juta it will be officially launched at the Constitutional Court on 30 April. Perhaps someone can organise a copy for the police?


Mothoa v Minister of Police