The successful lawsuit against police minister Bheki Cele over his officers’ negligence in stopping and investigating the rape of a businessperson will help assert the rights of many crime victims who are failed by shoddy police work.
This is according to a relieved Andy Kawa and civil organisations which backed her after she successfully dragged Cele to the Constitutional Court on appeal over her 2010 ordeal when she was abducted, robbed and gang-raped for more than 15 hours.
Her horror occurred in the bushes and dunes while walking at King’s Beach in Gqeberha, Eastern Cape.
“I am relieved the court ruled in my favour but that will never take back the 12 years of life I have lost because of depression and not being able to work and support my family,” Kawa said.
Kawa sued the police for R5.8m in damages in the Gqeberha high court in 2013 for the emotional trauma she suffered due to police negligence and their failure to find the perpetrators. At the time, the court said police were liable for 40% of the damages.
The Supreme Court of Appeal (SCA) overturned the case on appeal by the police.
While police used dogs and a helicopter to look for her on the day of the attack, the court found the search had been terminated prematurely and the area where she was being kept captive remained unsearched.
The high court also found several flaws in the collection by police of potential DNA evidence, including failure to process the DNA of would-be perpetrators for more than seven years.
On Tuesday, Kawa viewed the landmark ruling as an overdue recourse for her and as a deterrent to the shoddy work by police who often fail victims of sexual violence.
“What the minister has to take out of this is that they need to overhaul their systems to ensure the police service is able to meet the basic standard of investigations and investigators are properly resourced,” she said.
Attorney for the Centre for Applied Legal Studies Sheena Swemmer said it was a milestone ruling as it helped factor the intersection between the constitutional rights of victims in how police investigations were conducted.
“This case is not an exception but rather a norm. Many similar victims have been treated in a very similar way. Now there is no doubt police have an obligation to do better. It is not about finding a perpetrator but being efficient and effective in what police do in investigating,” Swemmer said.
Acting justice Pule Tlaletsi found the police service had “breached its statutory and constitutional duties owed to the applicant”.
“This is because I do not accept the contention that the mistakes in the search and investigation were negligible. In my view, the omissions outlined above are serious and significant and should, for that reason, be actionable,” Tlaletsi said.
Tlaletsi dismissed the argument by Cele that it would be impossible to quantify damages.
Cele’s defence council had also argued that imposition of such liability on the police would “open the floodgates” as other victims of crime would also want to sue over their cases, which the court rejected.
“In the instant case, the fact that the police service’s shortcomings occurred in the context of the scourge of gender-based violence helps tip the scales in favour of imputing delictual liability,” Tlaletsi said.
Brenda Madumise, director of Wise4Afrika, an organisation that took part in the case as friends of the court, said they got involved to “bring into sharp focus the standard of care” by police members investigating rape cases.
She agreed the ConCourt judgment would open a floodgate of similar cases in which the police would be held to account for their actions or lack thereof.
“Police will from now on need to demonstrate they have done everything possible in investigating such cases. It’s unfortunate that it’s the taxpayer who’s paying, but we do need to get to a point where police officers are held liable as individuals,” Madumise said.
Mara Glennie, founder of Tears Foundation, a Sandton-based organisation assisting rape and sexual violence victims, said: “This ruling gives new hope to rape victims that there are consequences if their cases are not taken seriously.”
Kawa said her lawyers would calculate the quantum amount owed to her in damages.
Gender activist Lisa Vetten said: “I think this case ought to trigger some deep reflection on the quality of the training police receive and prompt the service to improve the quality of their investigations in stranger rape cases.”
Unreasonable to blame cops for Kawa’s harm — dissenting justices
While most of the Constitutional Court bench ruled in favour of Kawa’s lawsuit against the police, some justices dissented as they did not believe a legal duty had been established on the part of the police to prevent the harm she suffered.
Penning the minority ruling, acting justice Dhaya Pillay pointed out that wrongfulness could not be established due to omissions by the police.
“An omission will be wrongful if a legal duty rests on a defendant to act positively to prevent harm, the defendant fails to fulfil that duty, and such failure results in harm to a plaintiff. An omission alone is not wrongful. For liability to follow, a wrongful omission must also be culpable or blameworthy of harm,” Pillay said.
Agreeing with the SCA, Pillay highlighted that Kawa had not stated the failure by the police to conduct DNA analysis as part of grounds for establishing wrongfulness by police.
“Establishing a causal connection between this alleged omission and harm when the applicant was unaware of the omission would be like the searches and investigating the man in the park, a hard ask,” she said.
Pillay also pointed out that the chronology of the ordeal and its aftermath showed the police had “acted with remarkable alacrity and diligence”, especially after the media attention the case attracted.
“The applicant’s high profile, her commendable agency, her access to resources and social capital also kept the police on their toes. She had access to the deputy mayor, a representative of the community policing forum, the ministry of justice and People Opposed to Women Abuse to keep the pressure on the police,” she said.
She argued that Kawa had failed to prove material omissions on the part of the police and imposing liability on the police service would be unreasonable.
“This finding on wrongfulness is dispositive of all the elements for liability in delict. The applicant’s claim for compensation must fail,” she said.
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