THE ARREST AND DETENTION OF A CHILD BASED ON THE FAILURE TO PRODUCE AN IDENTIFYING DOCUMENT IS PRIMA FACIE UNLAWFUL

FOR IMMEDIATE RELEASE

28 February 2024
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The Centre for Child Law (CCL) vehemently condemns the arrest and detention of a child suspected of being an undocumented irregular migrant. It is prima facie unlawful to arrest and detain a child merely on the basis that the child failed to identify himself or herself as a citizen, resident or foreigner at the request of the law enforcement officer. It is not a criminally punishable offence for a child to fail to produce any form of identity document when requested to do so by an immigration officer or police officer.
The CCL learnt of the unlawful arrest and detention of a 15-year-old girl child by members of the South African Police Services (SAPS) on an unfounded and baseless belief that the child is an undocumented irregular migrant. In an article published by Sowetan Live on 26 February 2024 titled “Teen tells of the horror of arrest for looking like a foreigner”, the child detailed how she was circled by a group of policewomen who touched her inappropriately and requested her to produce an identity document.
According to the newspaper article, the child’s failure to produce an identity document resulted in her being loaded into the back of a police van which already had other detainees in transit. The child was then transported to Hillbrow Police Station. Upon arrival at the police station, the police separated the detainees according to gender and the child was detained in a police cell with other female detainees. It is reported that the child was denied access to a telephone call at the police station.
The police further told the group of detainees which the child formed part of, that “this is not your home, SA is only for South African citizens, not you”. The child informed Sowetan Live that she was assisted by a fellow detainee who happened to have a cell phone with her in the police cells to call her parents to explain her ordeal. Her father rushed to the police station with her South African birth certificate and the child was released from custody.
It appears that the police women relied on section 41 of the Immigration Act 13 of 2002 which requires any person, at the request of an immigration officer or police officer to identify herself or himself as a citizen, resident or foreigner. If the immigration officer or police officer, on reasonable grounds, is not satisfied that the person is entitled to be in the Republic, the officer may detain such a person in a prescribed manner.
It is important to note that in terms of section 150(6)(d) of Children’s Amendment Act 17 of 2022, a child is in need of care and protection if that child “is an unaccompanied migrant child from another country”. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. Furthermore, section 28(1)(g) of the Constitution provides that a child may not be detained unless as a measure of last resort and if so detained, the child must be kept separately from persons over the age of 18 years and to be treated in the manner and kept in conditions that consider his or her age.
The policewomen, if they at all, were acting bona fide ought to treat the child as a child in need of care protection as “an unaccompanied migrant child”, and not in terms of the Immigration Act. In light of the latter, the arrest and detention of the child were unlawful and a gross violation of the child’s constitutional rights.
It is important to reiterate that what the child in question was arrested and detained for is not a criminal offence. The arrest is utterly unlawful and those involved must be held accountable.

Ends.

For more information, please contact:
Stanley Malematja
stanley.malematja@up.ac.za
084 906 5773
The Centre for Child Law
Tel: 012 420 4502 │ Email: centreforchildlaw@up.ac.za

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