Police liable for woman raped by male cellmate

UNLAWFUL arrest and detention cases were flooding the courts, but an arrest without intention to bring the accused to justice was unlawful and could not be taken lightly, an acting judge has said.

This was in relation to a case in the Gauteng High Court, Pretoria, where a woman was arrested and put in a cell with a man.

After the woman was slapped around by the police during her arrest and while being transported to a police station, her nightmare ordeal worsened when she was raped in the holding cell by her cellmate.

The plaintiff, identified only as MM, successfully turned to court to claim damages from the SAPS for unlawful arrest and detention.

She testified that the police came to her home and said they were looking for her boyfriend.

They searched the house for a firearm, but did not find one.

They then assaulted the plaintiff and her boyfriend, handcuffed them and put them in an SAPS vehicle and drove around with them, assaulting the pair.

While on their way to the police station, the police kept questioning her about the firearm and assaulting when she said she did not know.

The plaintiff testified that she was hit in the face.

She had a black eye, and an injured wrist from the handcuffs.

She was locked in a cell with a male who sexually assaulted her and pulled her hair. She said she was terrified of him and kept quiet while he raped and sexually assaulted her for about 20 minutes.

She then screamed and called out for help, and people in the adjacent cells heard her and called the police.

The plaintiff testified that she was “heartbroken” that the officers had allowed her to be violated in such a manner.

The plaintiff testified that the police, on arrival to rescue her, apologised and told her they would remove her from the cell and take her home.

When she asked to be taken to hospital, the officers swore at her and accused her of being “mad”.

After the sexual assault she was not taken for medical attention, but taken to another police station.

She was only taken for a medical examination after she laid charges of rape against her cellmate.

The woman said she had no idea why she was arrested and only heard later, when she was taken to court, that a neighbour said she had fired a shot at him.

Nothing came of the charges and she was told to go home.

It was argued on her behalf that the SAPS had a legal duty of care towards the plaintiff to ensure that she was not detained with a male.

The court was also told that the SAPS first had to make sure of their facts before they made an arrest.

The officers involved in her arrest said they did not need a warrant to arrest her as she posed a danger to her neighbours because she fired a shot between the legs of her neighbour during an altercation.

They were silent on the issue of placing her in a cell with a male.

Acting Judge MD Botsi-Thulare said she agreed that to use a firearm to shoot between someone’s legs was “regrettably not the means to communicate” if a disagreement ensued between parties.

“However, in this matter the arresting officer did not provide substantiated evidence of the alleged shooting, nor did he properly investigate the allegations against the woman before simply arresting her.

“They proceeded to arrest the plaintiff without evidence to back up the allegations. It is clear that the intention of the arrest was not to bring the plaintiff to justice,” Judge Botsi-Thulare said.

The court was of the view that the police were pursuing their own purposes.

The judge said their conduct was irresponsible and in contravention of their statutory duty. Thus, the judge said, the minister of police was vicariously liable for the sexual assault on the plaintiff.

The amount payable to the plaintiff is still to be decided by the court.