SCA: State must compensate mentally disabled teen unlawfully held in adult prison

The Supreme Court of Appeal (SCA) has ordered the state to compensate a mentally disabled 17-year-old who was unlawfully arrested and detained as an adult for almost three months, finding that the criminal justice system failed him.

What happened

The teenager, identified in court papers as S Nene, was arrested on 12 February 2013 after being suspected of attempting to rob a woman of her handbag in Montana, Pretoria. He was released on 3 May 2013 after his aunt produced his birth certificate proving he was a minor.

During the period between his arrest and release, Nene was detained in adult correctional facilities despite clear indications that he had severely impaired mental capacity and was not fit to stand trial. The SCA found his detention unlawful from the date of his arrest until his release.

Warnings ignored

The court record shows several discrepancies and warning signs that, the SCA said, should have prompted closer investigation of Nene’s age and circumstances. Different names and ages were recorded for him; one police record reflected a date of birth that would have made him 27, while another recorded his age as 18. He was unable to provide a proper address, could not sign certain documents and used a thumbprint on one statement. He was described as visibly immature and having difficulty communicating.

Magistrate and medical findings

Nene appeared in court on 14 February 2013. The magistrate noted that he did not appear to be of sound mind and ordered an assessment by a district surgeon. The district surgeon’s report dated 18 February 2013 found that Nene was not orientated, spoke irrelevantly, had poor intelligence and could not understand the charges or the consequences of a conviction. The report concluded he was not fit to stand trial, could not give a statement or instruct counsel, and could not participate in trial proceedings.

Failures across the system

The SCA found failings by multiple authorities. The investigation officer, Detective Zulilwe Jack Thabethe, was criticised for failing to follow up instructions to obtain medical reports. Prosecutors did not properly interrogate the police docket or the medical findings. The court said safeguards required by the Child Justice Act including assessment by a probation officer and notification of a parent or guardian were not applied because Nene was incorrectly processed as an adult.

When Nene’s aunt discovered he was incarcerated after being told his location by a former inmate, she found him at Weskoppies on 28 April 2013 with swollen hands and drooling. She approached the prosecution on 30 April 2013 and informed officials that Nene was a minor and severely mentally disabled; he was not released until his birth certificate was produced on 3 May 2013. The charges against him were withdrawn in July 2013.

Conditions in detention

The SCA criticised the Department of Correctional Services for placing Nene in an ordinary cell despite his mental illness. His medical records documented serious deterioration, including episodes involving faeces, wetting his bed, incoherent behaviour, psychosis and instability. He required assistance with showering and eating. The court also found he had been assaulted while in detention and that injuries were consistent with the possibility of sexual assault; the question of rape was reserved for later determination.

Legal outcome and costs

The appeal succeeded. The SCA overturned a High Court judgment that had dismissed the damages claim brought by Lizelle Schreuder, an advocate appointed as Nene’s curator ad litem. The court ordered the Minister of Police to pay all proven damages arising from Nene’s unlawful arrest on 12 February 2013 and his detention from that date until 3 May 2013. The Minister of Police, Minister of Justice and Correctional Services and the National Director of Public Prosecutions were held jointly and severally liable for proven damages for the period from 14 February to 3 May 2013.

The SCA also upheld a punitive costs order, directing that the state pay the costs of the proceedings on an attorney-and-client scale. The court criticised officials for showing no proper regard for Nene’s needs or dignity and for failing to apologise. It said authorities had “closed ranks and tried to defend the indefensible.”

“The whole criminal justice system failed him,” the SCA found.

Responsibility

The court placed ultimate responsibility on the executive heads of the departments involved, finding that the failures of the police, prosecution and correctional authorities were interconnected and jointly contributed to Nene’s unlawful detention. Although the SCA criticised Detective Thabethe’s conduct, it did not hold her personally liable for damages.