CAPE TOWN - In a landmark judgment for gender-based violence (GBV) survivors who have been failed by the State, the Constitutional Court has held that police could have gone the extra mile to locate Andy Kawa, who was brutally raped for several hours on a beach in Gqeberha, known as Port Elizabeth at the time.
After a legal fight of nearly 12 years, Kawa scored a huge victory for survivors of gender-based violence when the apex court found that the police had a duty to perform their work with due diligence.
The court upheld Kawa’s appeal and found that the police were negligent in their investigation regarding her case, and that they failed in their constitutional duty towards her.
The landmark judgment was handed down on Tuesday.
Kawa was abducted and brutally raped for nearly 15 hours near Kings Beach in December 2010.
She subsequently documented the life-changing ordeal in a memoir Kwanele, Enough! My Battle with the SAPS to get Justice for Women.
She spent years pushing for police to investigate the crimes committed against her, but was let down time and again.
The high court held that the police were 40% liable for her damages, but the Supreme Court of Appeal, following an appeal by the minister, overturned the high court order.
It found that the elements of negligence, wrongfulness and causation could not be supported by the evidence, and Kawa’s claim was dismissed.
Kawa then turned to the Constitutional Court, arguing that her case raised important constitutional issues.
The court commented that “our law does not require perfection. It requires conduct in line with a diligent and reasonable person”.
It was found that a diligent search might have resulted in her being discovered earlier and spared hours of being raped further.
“The state has a duty to protect women against all forms of gender-based violence that impair their enjoyment of fundamental rights and freedoms. It has to take reasonable and appropriate measures to prevent the violation of those rights.
“The South African Police Service (SAPS) is one of the primary state agencies responsible for the protection of the public in general, in particular women and children, against the invasion of their fundamental rights by perpetrators of violent crimes.”
Commenting after her victory, Kawa said: “It comes as a relief that the Constitutional Court had ruled in my favour, but it is devastating that it has taken almost 12 years to achieve this outcome. The judgment finally acknowledges the police’s failures in my case and will hopefully send a strong message about the need for accountability. Gender-based violence remains pervasive in our country and victims and survivors deserve to have their cases investigated, and to be treated in a way that limits their trauma and re-victimisation.”
Enquiries to the police ministry had not been answered by deadline.
The Centre for Applied Legal Studies (CLAS) was admitted as a friend of the court and argued that the police had a duty of care towards victims of crime, particularly sexual offences.
In a statement, CALS said: “Kawa spent years pushing for the police to investigate the crimes committed against her, but was failed time and again by those meant to protect her. After years of fierce advocacy, she turned to the courts in an attempt to hold the police accountable for their failures.”
Reacting to the judgment, Sonke Gender Justice co-executive director, Bafana Khumalo, said: “We welcome the judgement as it sends a clear message that the police must be held liable when they dropped the ball against a victim of sexual violence. There are many survivors like Kawa who have not only been let down by the criminal justice system but have been re-victimised by those who are supposed to uphold the law.”
Cape Times