Police accused of failing rape survivor
THE Police Ministry has moved to reject allegations that the SA Police Service (SAPS) acted wrongfully and failed in their statutory and constitutional duty to rescue a Johannesburg businesswoman from a 15-hour gang rape ordeal more than 10 years ago.
Yesterday, the woman headed to the Constitutional Court on appeal after the Supreme Court of Appeal (SCA) reversed an Eastern Cape High Court ruling that the Police Minister was delictually liable for the negligent omissions of the SAPS in the matter.
According to court papers, the woman had been on a business trip to Port Elizabeth in 2010 when she was abducted, assaulted, and raped in sand dunes while walking at King’s Beach.
The high court ruled the SAPS had to cough up 40% of the woman’s damages. It found that the searches were below standard as the police missed the spot where the woman was being held hostage. Also, that the subsequent investigation was negligent. All this was reversed by the SCA on appeal.
Representing the Police Minister, advocate Chris Mouton SC, called for the appeal application to be dismissed and moved to dispute claims that the policemen did not search the close vicinity on foot before the K9 unit arrived.
“We have evidence which we will call out if necessary, that there was a search in the immediate vicinity,” he said.
Mouton said police officials who had visited the area had wielded torch lights as cops looked for the woman before the dog unit had arrived.
“There is no substance to the finding by the high court that these policemen, who were the first responders, sat on their hands for 55 minutes. Do not one’s natural instincts tell one that they would have looked in the immediate vicinity to see if they can find the occupant?” Mouton asked.
Advocate Timothy Bruinders SC, for the woman, said the SCA had erred as the SAPS’S failure had constituted a wrongful act in terms of its constitutional obligations to eradicate gender-based violence.
At the heart of the accusations against the police is that they had failed to properly search the beachfront, an omission which resulted in the woman’s ordeal prolonged until she managed to escape in the morning.
“The applicant contends that the SAPS were under the statutory and constitutional duty to take all reasonable measures available to them in the circumstances to search for her during the night of December 9, 2010 … She says they negligently failed to discharge those duties,” Bruinders said.
The SCA had, however, found that by mobilising the K9 unit and a helicopter crew, as well as conducting a subsequent investigation, the SAPS had not been negligent in discharging its constitutional obligations.
Advocate Nasreen Rajab-budlender, representing the Centre for Applied Legal Studies, said the organisation had joined the matter due to the denial by the Police Minister that there was a causal link between the woman’s suffering and the handling of the matter by the police.
Rajab-budlender pointed out that SA was enjoined by international law obligations to take measures to protect women and children against violence.
She said the police had failed to take reasonable steps to secure the evidence in the form of eyewitness testimony and forensic testimony and that this made their probe below a requisite standard of investigation.
“Effective policing is not a luxury. It is a necessity because failure by the SAPS to conduct its constitutional duties with due care has far-reaching consequences for victims of crime and for society as a whole,” Rajab-budlender said.