The war of attrition against taxpayers continues, this week via the case of police who arrested and unlawfully detained "NM". Police sexually harassed the woman to the point where she began menstruating in shock. They then refused her any means of cleaning herself while they kept her in filthy cells for two nights.
A significant legal bill will result from this initial hearing that established her detention as unlawful, with two additional bills to come: a further hearing must decide the damages she should be awarded — her claim is for over R2m — and that hearing will also generate legal costs.
No-one would deny NM damages for such a terrifying, humiliating experience, but it sticks in the gut that the police responsible escape any financial penalty.
Another worrying problem is highlighted in this week’s judgment, namely that the legal teams on both sides were hopeless.
It sticks in the gut that the police responsible escape any financial penalty
Just last week I discussed judgment in another damages claim, from the supreme court of appeal, in which the court castigated the state’s legal representatives for their appalling performance.
The lawyers in NM’s case were just as bad.
NM told the court that after her husband’s death the man next door began making a nuisance of himself at her house. He was also violent towards his wife and NM often had to intervene.
Allegations by this very couple, however, were the sole basis of the police action against NM. They told the police that eight months earlier, NM had asked them for help in hiding two firearms, saying her broker had been shot dead and she might be a suspect and so needed to get rid of her guns.
On the basis of this dated interaction, two officers came to NM’s business. Instructed to "interview and arrest", they simply took her to the police station without interviewing her; in other words, without first forming the opinion that she should be arrested and detained.
She says that on the way to the police station, one of the officers who sat next to her on the back seat made sexual innuendos. He denied doing so.
She says that at the police station the same police officer took her to an ablution facility where she asked to use the toilet. When she came out of the cubicle, he instructed her to strip naked and perform oral sex on him. She refused, but he insisted that he search her. Without touching her, he "subjected her to other indignities", which he again denied. She began menstruating from the shock of it and also developed diarrhoea, but though she asked for toilet paper in her cell, she received none.
Gross inadequacies
Judge Dhaya Pillay pointed out a number of gross inadequacies in the work of both legal teams, like hopeless cross-examination and failure to call even the most obvious witnesses.
And then there were the detention conditions: NM shared a stinking cell, infested with faeces and rotting food, with two women and just one mattress and one blanket between them.
Pillay said it was a matter of public interest whether suspects were held under conditions amounting to "cruel and unusual" punishment but that she had found no SA case on this question despite the many actions involving torture in detention. Paying compensation for claims related to appalling prison conditions did not solve the problem of these public facilities.
In this case NM was not a convict. She should in any case not have been punished by being held, unlawfully, under conditions that amounted to "cruel and unusual treatment".
Reading her words, you can sense NM’s damages award
growing.
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