is prima facie unlawful. Consequently, the person arresting and
detaining another must establish that his actions are authorized
by law. In Minister of Law and Order & Ors v Hurley & Anor 1986
(3) SA 568 (A), the court stated as follows:
“An arrest constitutes an interference with the liberty
of the individual concerned, and it therefore seems to
be fair and just to require that the person who
arrested or caused the arrest of another person
should bear the onus of proving that his action was
justified in law.”
9.5.1.3
In this complaint, Inspector Dhowa did not offer any justification
for the detention of the complainant in a place that is not legally
recognized as a detention place. It is not in dispute that
complainant was detained for 3 days. What is in dispute is the
reason for the detention. Complainant stated that he was at 4th
Respondent’s home for 3 days where he was kept as a prisoner.
However, the 3rd and 4th Respondents indicate that they kept
complainant at 4th Respondent’s home for safety reasons. This
however does not justify the detention as the 3 rd and 4th
Respondents knew that complainant was wanted by the police on
arson charges. The only reasonable thing that they ought to have
done was to hand the complainant over to the police. The ZHRC
therefore finds that the detention was unlawful and on that basis,
complainant’s right to personal liberty was violated.
10.
Whether complainant was subjected to torture, cruel, inhuman or
degrading treatment?
10.1
Section 53 of the Constitution provides that no person may be subjected
to physical or psychological torture or to cruel, inhuman and degrading
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