Swanvest 11 (Pty) Ltd v Western Cape Provincial Minister of Transport and Public Works

The applicant, a pregnant 15-year-old girl, was arrested and detained for the murder of her newborn child. The child was born alive but died shortly after birth due to asphyxia, likely caused by the applicant placing the baby in a plastic bag. The applicant was charged with murder, but the charge was later changed to concealment of birth. The applicant was arrested on a Friday and appeared in court the following Monday, where she was released into the care of her mother. This resulted in the applicant being detained for two nights over the weekend. The applicant challenged the lawfulness of her arrest and detention, arguing that the police had failed to consider the best interests of the child as required by section 28 of the Constitution of the Republic of South Africa, 1996.

• Whether the arrest and detention of the applicant were lawful?
• Whether the police officers had a duty to consider the best interests of the applicant as a child when deciding whether to arrest and detain her?
• Whether the detention of the applicant was in breach of her constitutional rights to freedom and security of the person and to dignity?
• Whether the detention of the applicant was in breach of the Child Justice Act 75 of 2008?

The court declared that the arrest and detention of the applicant were unlawful and a violation of the applicant's constitutional rights. The court awarded the applicant damages in the amount of R120,000 for the unlawful arrest and detention.

When considering the arrest and detention of a child, the best interests of the child are of paramount importance, as mandated by section 28 of the Constitution. This duty requires police officers to consider alternatives to arrest and detention, and to ensure that detention is used only as a measure of last resort, in accordance with the Child Justice Act. Failure to consider the best interests of the child renders the arrest and detention unlawful.

The court noted that it is regrettable that the police officers were not properly trained on the provisions of the Child Justice Act and the constitutional obligations placed on them when dealing with children. The court also noted that the police officers should have been aware of the applicant's vulnerability as a 15-year-old girl who had just given birth and was in a state of distress. The court expressed concern about the lack of proper training for police officers on the rights of children and the provisions of the Child Justice Act.

This case is significant because it confirms that the best interests of the child, as enshrined in section 28 of the Constitution, must be considered by police officers when deciding whether to arrest and detain a child. It reinforces the importance of the Child Justice Act and the need for proper training of police officers on the rights of children.