R200 000 for refugee who is legally in SA but detained for 21 days
Pretoria News - 31 Mar 2022
Pretoria - The South African authorities failed to recognise the rights of a refugee who is legally in the country, the Pretoria Magistrate’s Court has found.
He had to spend 21 days in appalling conditions behind bars - simply because both the police and Home Affairs refused to look at his valid refugee permit.
Roy Kamushinda then instituted a R200 000 in damages claim against the police in the Pretoria Magistrate’s Court.
A magistrate this week ordered that Kamushinda was entitled to the damages and ruled that the State entities had to pay him accordingly for his unlawful arrest and detention.
Kamushinda was stopped on May 6, 2015 by police in Johannesburg during a stop-and-search crime prevention operation.
He was asked to produce valid documentation that he was legally in the country.
Kamushinda informed the police officer that he was a recognised refugee, but that he was not in possession of his permit, which he had accidentally left at his home that morning.
He explained that he could fetch it as his home was about 15 minutes from where he was stopped. However, he was arrested and subsequently detained at the Johannesburg Central police station.
Upon arrival at the police station, he explained to different people that he was a recognised refugee and had a valid permit at his home. No one from the SAPS listened to him or attempted to assist him.
Six days after his arrest, Kamushinda was interviewed by Home Affairs officials for verification of his immigration status in South Africa. During this interview, he repeatedly explained that he was documented and had a valid refugee permit at home.
The officials, however, refused to discuss his documentation status with him.
About a week later, Kamushinda was able to phone his landlord for the first time and request that he bring his refugee permit to the police station, which he did.
Kamushinda subsequently presented his valid refugee permit to police officers, but they informed him that it was too late and they could not help him.
Later that day, he was transferred to the Lindela Repatriation Centre to be detained pending his deportation. Upon arrival at Lindela, Kamushinda presented his valid refugee permit to different officials, but no one assisted him.
A few days later, he again presented his refugee permit to a Home Affairs official who made a copy of his permit. It was only on May 27, 2015 after spending 21 nights in appalling conditions of detention that Kamushinda was released from detention following a letter of demand sent by Lawyers for Human Rights.
The organisation represented him in his claim for damages against the Minister of Police, where the court was required to assess whether the SAPS had acted wrongfully, thereby giving rise to a claim for damages.
In coming to its conclusion, the court considered whether the arresting officer had the prerequisite reasonable suspicion to conduct a warrantless search of Kamushinda and eventually held that he did not.
The court concluded that the stop-and-search crime prevention operation was thus unlawful, and that Kamushinda deserved to be compensated for his nightmare ordeal.
Lawyers for Human Rights said it welcomed this decision, especially as the country marks Human Rights Day on March 21, which is a reminder that the Constitution and legislation promotes and demands that there be equitable and non-discriminatory policing and immigration services to all, including non-nationals.
Nyiko Manyusa, the attorney who led the court case, said the law requires law enforcement officials to discharge their duties with care and diligence, taking into consideration people’s human rights and dignity.
“In Mr Kamushinda’s case, although he is a refugee in South Africa, the law still required the police and immigration officers to discharge their duties in a responsible manner, and not unlawfully search and arrest him.”
Manyusa said it was hoped that Kamushinda’s victory would be a reminder to all, especially those in authority, that they had to respect people’s rights as no one was above the law.
“That is what the Constitution and democracy demands from us,” Manyusa said.