So­mali wins dam­ages over un­law­ful ar­rest

Pretoria News - - NEWS - ZELDA VENTER zelda.venter@inl.co.za

THE Gaut­eng High Court, Pre­to­ria, has once again con­firmed that the con­sti­tu­tion en­shrined the right to free­dom and no one may be ar­bi­trar­ily de­prived of their free­dom.

“It has long been firmly es­tab­lished in our com­mon law that ev­ery in­ter­fer­ence with phys­i­cal lib­erty is prima fa­cie (on the face of it) un­law­ful,” Act­ing Judge Maboku Man­gena said.

He made these re­marks dur­ing a judg­ment fol­low­ing a dam­ages claim by a So­mali cit­i­zen, Ayub Mo­hammed, who was ar­rested with­out any rea­son by the po­lice in his shop in Al­ber­tinia in the Western Cape.

The po­lice claimed that he bad­mouthed them when they wanted to search his shop, al­legedly say­ing “you f***ing po­lice are al­ways look­ing for pa­pers”. They claimed he was ar­rested for act­ing in a “ri­otous man­ner” as he was swear­ing at them. But the judge found the po­lice sim­ply looked for ex­cuses when they were con­fronted in court.

Mo­hammed said he would never bad­mouth a po­lice of­fi­cial as he knew, as a for­eigner, that one couldn’t an­noy the po­lice. He told the court that he was in his shop on April 16, 2012, when two of­fi­cers walked in at around 7pm.

They asked him about his per­mit to be in the coun­try which he pro­duced. When they no­ticed it was in or­der, they ques­tioned him whether he was sell­ing drugs or “il­le­gal stuff ”.

Mo­hammed de­nied that he was in­volved in il­le­gal deal­ings, but he nev­er­the­less al­lowed the po­lice to search his shop.

When the po­lice found noth­ing, the con­ver­sa­tion moved to the prof­itabil­ity of the busi­ness. The po­lice ques­tioned how it was pos­si­ble for him, as a 20-year-old, to own a shop.

Mo­hammed said he did not an­swer them as he feared that they may at­tack him.

The po­lice told him that they were of­fi­cers of the law and that when they ask ques­tions, he had to an­swer. He was also told that he was an im­mi­grant and could be ar­rested.

Mo­hammed said they sud­denly pulled him to­wards the po­lice van and drove around with him for a while, be­fore they took him to the po­lice sta­tion.

He was locked up in a cell for five hours with­out be­ing told why, be­fore he was told to go home.

Mo­hammed told the judge that he un­der­stood that be­ing an im­mi­grant, he needed po­lice pro­tec­tion and he un­der­stood that he should obey the laws of this coun­try. He said he had no rea­son to cre­ate a prob­lem for him­self by bad­mouthing the po­lice. He also said he un­der­stood that they needed to do their job, but he could not un­der­stand why he was ar­rested and de­prived of his lib­erty for no rea­son.

The po­lice had a dif­fer­ent story to tell. They said they left the shop when they saw that his pa­pers were in or­der. They were about to climb into their ve­hi­cle when Mo­hammed came into the street and hurled abuse at them, they claimed.

The judge said the po­lice ver­sion that Mo­hammed was “ri­otous” was far-fetched. It was clear that they “un­nec­es­sary demon­strated their power”. He ruled the po­lice min­is­ter li­able for his dam­ages. The amount due will be de­ter­mined later.

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