Police must pay more than R400k after deceased's son wins negligence case

Police found to have demonstrated 'gross ineptitude bordering on base stupidity' after woman hanged herself with her shoelaces

03 February 2025 - 16:34
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The Western Cape High Court has ordered the police to pay out a damages claim made by a McGregor man whose mother committed suicide while in custody in 2011, the day after he turned 11. Stock photo.
The Western Cape High Court has ordered the police to pay out a damages claim made by a McGregor man whose mother committed suicide while in custody in 2011, the day after he turned 11. Stock photo.
Image: 123RF

The Western Cape High Court has ordered police to pay more than R400,000 to a man whose mother committed suicide in police custody. 

Marius Otto, 24, from McGregor in the Western Cape, was awarded the payout along with his legal costs and future medical expenses for post-traumatic stress disorder after the court found the police accountable for his mother taking her own life.

Judge Patrick Gamble said an actuarial report calculating the deceased's contributions towards her son's upbringing recommended a fair damage claim of R96,600 for seven years.

General damages — such as the psychiatric injury Marius suffered on learning of his mother's death by suicide — amounted to R300,000. 

In terms of future costs, Gamble said Marius should be admitted as an inpatient to The Pines in Worcester for 21 days at a total cost of R75,000. During his admission he was to receive daily psychotherapy at the rate of R3,300 and then be given a further 80 sessions of psychotherapy at R2,000/session over 24 months after his discharge. After this, he would be granted R2,000 a month for medication for the “remainder of his anticipated lifespan”. 

The case dates back 16 years ago when Kaliema Otto was arrested for “riotous behaviour” in 2011.

Within an hour of her arrest, she hanged herself with her own shoelaces — an item that should have been taken away from her. 

“In clear breach of the standing orders, the police demonstrated what can only be termed gross ineptitude bordering on base stupidity,” the court held. 

Otto committed suicide after she was arrested at her home in McGregor, a village about 150km east of Cape Town. 

Six years later her mother Emily, acting on behalf of her grandson Marius, who had turned 11 the day before his mother's suicide, issued a claim against the police. When he turned 18, Marius became the claimant in the matter.

Marius sought damages, claiming police were negligent in the way in which they had detained his mother. He asked for the support he lost due to his mother's death, as well as future medical expenses and general damages “for shock, past and future pain, suffering, discomfort, disablement and loss of amenities of life”. 

Though it was the deceased who had earlier suggested to Sgt Page that she intended to do harm to her partner, common sense should have alerted the police to the fact that she might just as well turn that harm on herself or others
Judge Patrick Gamble

In deciding the matter, Gamble looked at the events as they unfolded, noting that Otto had been well-known to McGregor police due to repeated “incidents of domestic strife” between her and her partner, “a certain Ms Willemse”. 

After her arrest, she was instructed to hand over her belongings and in particular her shoelaces but refused. With no female officer on duty that night to conduct a physical search of the deceased, police phoned a nearby police station about 25km away seeking a female officer to be sent to McGregor.

An arrangement was made for “a halfway” — a police term — for a Robertson police vehicle to drive the female officer to a midway point, while McGregor police would take Otto through to be searched by the female officer and bring her back to the station. 

Robertson police sent Const Sonia Rosenkrantz to carry out the “halfway” search, however, Otto was found in the cell hanging by her neck from the window bars. Marius told the court the police had been negligent on “three discrete causes of action”:

  • by detaining his mother;
  • by being in breach of prescribed statutory duties; and
  • for breaching her constitutional rights.

He argued that the police were obliged to:

  • protect his mother against harm or assault while in custody;
  • regularly check on her in the cells;
  • take all necessary steps to stop her harming herself; and
  • place a cell-guard at the door until she could be body searched. 

He said the police owed his mother and himself “a positive and proactive duty of care in such regard”. 

Marius argued that the arrest of his mother and subsequent failure to search her led to the “reasonably foreseeable” fatal consequences. 

“I agree. The deceased was intoxicated, she would not co-operate nor heed any warning, and her behaviour was volatile and unpredictable. Moreover, though it was the deceased who had earlier suggested to Sgt Page that she intended to do harm to her partner, common sense should have alerted the police to the fact that she might just as well turn that harm on herself or others,” said Gamble. 

The police argued that they had been “on the horns of a dilemma”, with male officers not being allowed to search a female detainee. Had they done so, they would have breached her rights to privacy and dignity, possibly giving her reason to claim damages. It had therefore been reasonable to detain the woman until she could be searched. 

Gamble disagreed, saying the “horns of a dilemma” were of their own making. 

“First, the police could have removed the deceased’s shoelaces with the minimum of invasion of her bodily integrity — no more of an invasion than holding the deceased by the arm to handcuff her or lead her away to the patrol van.

“Second, they should have conducted the ‘halfway’ in accordance with the established practice by placing her in the rear of the patrol van and driving her to be searched by Const Rosenkrantz before being driven back to McGregor and incarcerated.” 

Alternatively Otto could have been cuffed to an immovable object such as a burglar bar in the charge office until she could be searched. 

TimesLIVE


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