A High Court judge in the Western Cape has imposed punitive costs on a local authority for the way it dealt with a damages claim against it by a disabled orphan raped on holiday there six years ago.
South African missionaries rescued the orphan from near death in Bulgaria about a decade before the incident.
In the damages action, the orphan wanted the municipality to be held liable after she was raped and sexually assaulted on holiday at Pine Forest resort in Ceres in 2009.
The Witzenberg Municipality owns, controls and manages the resort.
Two teenagers later pleaded guilty to rape allegations in a separate criminal case.
In the civil action, however, the municipality wanted the orphan to prove the incident took place and was only prepared to admit the two teenagers had pleaded guilty to the allegations.
The orphan, now 24, may not be identified. Court papers showed she had an extremely difficult childhood.
The papers said she was born paralysed and brain damaged and ended up in an orphanage in Bulgaria when she was two days old after her biological parents abandoned her.
She spent 18 months there before she was transferred to a children’s home in Sofia - the capital of Bulgaria.
In 1998, when she was 7 years old, South African missionaries working in Bulgaria found her on the brink of death, bed-ridden, neglected and severely malnourished.
At the time she weighed just 7kg - the average weight of a four-month-old baby.
The couple noticed her using her skinny arms to try to swat flies off her body and it appeared to them that she was the only one at the home who still had some spirit.
They adopted her and brought her to South Africa, where she received speech, physical and occupational therapy.
Several years later, in 2009 when the girl was a teenager, they took her on a family holiday to the popular Ceres resort Pine Forest.
She decided to go to the park and, when her parents looked for her, she had disappeared. Only her shoes and backpack were found near the trampoline.
After a search, her family found her at the squash courts. She said she had been raped.
Two teenagers pleaded guilty to criminal charges in the Paarl Regional Court in 2010.
Through city advocate Murray Bridgman, who was appointed to take legal action on her behalf, she instituted a R1.4 million damages action against the Witzenberg Municipality
Summons was issued against the municipality in 2012 and in August 2013.
More than two years ago the parties confirmed neither was considering applying to have the merits of the case decided separately from the amount of damages.
Four months later new attorneys were appointed to represent the municipality and they indicated an application for the separation of the issues was being considered.
The matter was scheduled to be heard in February last year and the municipality then said it would bring the separation application on that day.
However, this was not lodged.
Instead, the municipality appointed a clinical psychologist to assess the orphan, amended their response to the allegations and joined the adoptive parents as third parties, effectively alleging they contributed by also being negligent.
In February this year, before it applied earlier this month to have the merits decided separately, the municipality indicated the orphan would have to prove she had been raped, despite the accused having pleaded guilty in a criminal trial.
It then launched an application to have the merits and amount of damages decided separately.
However, in a judgment, Judge Nathan Erasmus said he found it disturbing the application was brought at this stage and his view was “the issues cannot sensibly be separated”.
He described the history of the case as “unlucky and unfortunate” and found Bridgman (in his representative capacity) and the orphan’s adoptive parents were correct to resist the separation of the application.
However, he did not stop there.
“Firstly, because of the displeasure I want to show in the way the application was brought and secondly, I believe it is in the interests of justice that (the orphan) and (the adoptive parents) not be out of pocket.
“The (municipality is ordered to pay the costs of this application on an attorney and own client scale (punitive scale),” Erasmus said.
Altus Joubert, the attorney acting on behalf of the orphan and her parents, welcomed the judgment and the punitive cost order against the municipality.
The action is set to commence in February, next year.
Sunday Argus