Cape Town – Witzenberg Municipality has lost an appeal in the Supreme Court of Appeal over damages awarded to a family, after the rape and assault of their disabled daughter at the Pine Forest Resort in Ceres in 2009.
Yesterday, the municipality was ordered to pay damages to the family of R630 780, together with interest accumulated from the date of the original award in 2017.
The judgment comes as the world marked International Day of Persons with Disabilities yesterday, and the 16 Days of Activism for No Violence against Women and Children Campaign.
The victim was born in Bulgaria and diagnosed with spastic hemiparesis in her lower limbs.
She also suffered from other chronic illnesses from the age of five months. When her adoptive parents, a South African couple who were Christian missionaries stationed in Bulgaria, met her in 1998 she was in a badly neglected, passive and apathetic state.
Her head was shaved and her impermanent teeth were decayed.
She had no spontaneity of movement, could not communicate verbally and could not crawl, roll or perform any significant movements.
In 1999, a local couple were granted permission to transport the girl to South Africa on a hospital permit for a year, and in 2001 they formally adopted her.
They arranged for her to see a range of professionals. She underwent physiotherapy, occupational therapy and speech therapy. After months of treatment, she began to walk when held by the hand.
On January 16, 2009, the victim, her adoptive parents and their biological daughter were admitted as residential guests at the Pine Forest Resort in Ceres. She was about 18 at the time.
On January 20, 2009 she asked her parents if she could go out and play on her own in the playground close to their unit.
She was given permission to do so in line with the advice the parents had received that they should encourage her independence.
While on the playground, she was forcefully led away by three minors aged 15, 14, and 11, who had gained access to the resort via an external staircase leading to the entrance of a squash court.
They brutally sexually assaulted and raped the girl.
One of the boys apparently kept a lookout while the other two raped her.
The two boys were convicted and sentenced.
In the initial high court judgment, the court held that no fault could be attributed to the victim’s parents in allowing her to play on her own in the play area at the resort, and that the municipality was negligent in terms of security, and liable.
“In essence, the court held that if there had been four guards in total with two guards doing hourly patrols, and if the rest of the staff at the resort had been in place and if there had been proper access controls in relation to the squash court and more visible and pronounced access control, the opportunity for wrongdoing would have diminished.
"It was more likely than not that the rape would not have occurred. It had occurred because of the failure of the municipality to take the steps as outlined above," Judge Mahomed Navsa found.
Moreover, in light of previous experiences, there ought to have been a greater awareness by the security service and the employees of the possibility of criminal conduct,” Judge Navsa said.
This, as Ceres Alarms, the security services provider at the resort at the time, had been appointed on an emergency basis after a predecessor’s contract had been summarily terminated for poor performance. Ceres alarms was appointed in the absence of a thorough security assessment.
Also, at the time of the incident almost all the municipal staff at the resort - a total of 18 out of 19 employees - had left to attend a staff meeting.
“I find the attitude of the municipality in this regard disturbing. The municipality had a duty to take appropriate steps to safeguard to the best of its ability the safety of visitors and residents. This it did not do.
“In the circumstances it was adding insult to injury to attempt to land (the parents) with liability,” the judge said.