Johannesburg - Legal counsel for Johannesburg businesswoman Andisiwe Kawa, who laid charges against the police after she was robbed and gang-raped for 15 hours in 2010, have argued before the Constitutional Court the police had to be liable for their failure to bring the perpetrators to book.
The woman approached the apex court 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 police in the investigation.
According to court papers, Kawa had been on a business trip to Port Elizabeth when, while walking at Kings Beach, she was abducted, assaulted and raped in the sand dunes.
After the reporting of a missing person at the local police station on the night of the incident, the court heard that police undertook an investigation, which included a foot search along the beach, a search by the K9 Search and Rescue Unit as well as a helicopter search, but without finding her.
Kawa is suing the police for more than R5 million as she claims to have suffered depression and post-traumatic stress as a result of the incident.
Advocate Timothy Bruinders SC, for Kawa, argued the high court was right by ruling that the police’s failure to conduct a reasonable search had constituted a wrongful act in terms of its constitutional obligations to eradicate gender-based violence.
The high court, which said the police had pay 40% of the woman’s damages, had found the searches were below standard as it missed the spot where the woman was held hostage and that the subsequent investigation was negligent, but this was reversed by the SCA on appeal.
“The applicant contends that the SAPS were under the statutory and constitutional duty to take all measures, all reasonable measures available to them in the circumstances, to search for her during the night of 9 December 2010 … she says they negligently failed to discharge those duties,” Bruinders said.
At the heart of the accusations against the police is that they had failed to properly search the beachfront, an omission which resulted in Kawa’s ordeal being prolonged until she escaped in the morning.
The SCA had found that, by mobilising the K9 unit as well as a helicopter crew, as well as subsequent investigation, the police had not been negligent.