The Star Late Edition

Rape survivor must pay costs after losing appeal

- BONGANI NKOSI bongani.nkosi@inl.co.za @BonganiNko­si87

A RAPE survivor has been left with a potentiall­y huge lawyers’ bill after losing, on appeal by the State, a civil case she hoped would hold police accountabl­e for failing to find her during her ordeal.

It was common cause that businesswo­man and activist Andisiwe “Andy” Kawa endured a 15-hour rape ordeal in the bushes along King’s Beach, Port Elizabeth, on December 9, 2010. She was held captive overnight there by a man who had overpowere­d her while she took a walk along the beach.

Kawa has repeated publicly and in court her assailant held her at knifepoint, assaulted, robbed and threatened to kill her. He blindfolde­d her and raped her repeatedly overnight. She suspected she was raped by more than one man.

No one was ever arrested for the rape.

Kawa found fault in the police’s failure to locate her during their search that included use of K9 dogs and a helicopter. She sued for negligence, failure of police to conduct proper search for her and aggravatio­n of her psychopath­ology.

The victory she achieved in 2018 at the Port Elizabeth High Court, where Acting Judge Sarah Sephton ordered police to pay 40% of her damage claims, has been set aside by the Supreme Court of Appeal (SCA).

In a unanimous judgment, Judge Dumisani Zondi ruled in favour of the appeal brought by the Bheki Celeheaded ministry. Judge Zondi set aside Judge Sephton’s orders, and found against submission­s that police failed to properly execute their job when searching for Kawa. The SCA ruling referred to Kawa as Ms K.

“The steps taken by the police to find Ms K are, in my view, reasonable,” said Judge Zondi. “They took all reasonably practicabl­e and appropriat­e precaution­s to carry out an effective search for Ms K. No negligence concerning the search was proved… A well-trained search and rescue dog was used and… (Warrant Officer) Gerber called for a helicopter search.”

Judge Zondi also shot down Kawa’s claim for aggravated psychologi­cal damages as a result of police’s failure to find her.

“The high court’s finding that Ms K would have been saved from suffering further trauma had she been found earlier is inconsiste­nt with the opinion of the experts,” said Judge Zondi.

“Their evidence made it clear that no quantifiab­le psychiatri­c loss or contributi­on to her psychopath­ology could be attributed specifical­ly to whether she should or could have been found earlier.”

Judge Zondi also found in favour of the Police Ministry’s argument that Judge Sephton’s judgment would open a floodgate of lawsuits against police over probes without results. Such cases included the killing of Orlando Pirates goalkeeper, Senzo Meyiwa.

Said Judge Zondi: “To impose liability for the harm for which Ms K sued would make it difficult for the police to conduct their investigat­ions in the future and would expose them to the potential risk of civil litigation in every case where any rescue search or their investigat­ions are negligent, even if only to a slight degree, and a successful arrest and conviction of the perpetrato­rs of serious crimes do not ensue.”

Judge Zondi slapped Kawa with legal costs of both the SCA and high court proceeding­s.

These are fees for two counsels that represente­d her and the Police Ministry at the SCA, and further fees for two counsels for the parties at the high court.

She also had to foot the bill for the costs in obtaining medico-legal reports from two doctors, “as well as their reasonable qualifying, travelling and accommodat­ion expenses (if any) in connection with the trial”, Judge Zondi ruled.

Kawa yesterday would not be drawn to comment.

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