Johannesburg - The Constitutional Court will have to uphold the appeal application by a Johannesburg businesswoman who is suing the SA Police Service (SAPS) over their alleged failure to save her from a 15-hour gang rape ordeal more than ten years ago.
This is according to legal teams who argued before the court on Tuesday the SAPS had failed in their statutory and constitutional duty to rescue the woman and apprehend her perpetrators.
According to court papers, the woman had been on a business trip to Port Elizabeth in 2010 when she was abducted, assaulted and eventually raped in sand dunes while walking at Kings Beach.
Her application came after the Supreme Court of Appeal (SCA) reversed an Eastern Cape High Court ruling that the Police Minister was liable for the negligent omissions of the SAPS in the investigation.
The High Court, which said the SAPS had to cough up 40% of the woman’s damages, had found that the searches were below standard as it missed the spot where the woman was held hostage and the subsequent investigation was negligent, but this was reversed by the SCA on appeal.
Advocate Timothy Bruinders SC, for the woman, said the SCA had erred as the SAPS’s failure had constituted a wrongful act in terms of its constitutional obligations to eradicate gender-based violence.
At the heart of the accusations against the police is they had failed to properly search the beach front, an omission which resulted in the woman’s ordeal being prolonged until she managed to escape in the morning.
“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 fail to discharge those duties,” Bruinders said.
The SCA had however found that, by mobilising the K9 unit as well as a helicopter crew, as well as subsequent investigation, the SAPS had not been negligent in discharging its constitutional obligations.
Advocate Nasreen Rajab-Budlender, representing the Centre for Applied Legal Studies, said the organisation had joined the matter due to the denial by the Police Minister there was a causal link between the woman’s suffering and the handling of the matter by the police.
She pointed out SA was enjoined by international law obligations to take measures to protect women and children against violence.
Rajab-Budlender said the police had failed to take reasonable steps to secure the evidence in the form of eyewitness testimony and forensic testimony and this made their probe below standard.
“Effective policing is not a luxury. It is a necessity because failure by the SAPS to conduct its constitutional duties with due care has far-reaching consequences for victims of crime and for society as a whole.”
Representing the Police Minister, advocate Chris Mouton SC, called for the appeal application to be dismissed and disputed claims that the policemen did not search the close vicinity on foot before the K9 unit arrived.
“We have evidence which we will call out if necessary, that there was a search in the immediate vicinity.” He said police officials who had visited the area had wielded torch lights as police looked for the woman before the dog unit had arrived.
“There is no substance to the finding by the High Court that these policemen who were the first responders sat on their hands for 55 minutes. Do not one’s natural instincts tell one that they would have looked into the immediate vicinity to see if they can find the occupant?”
Judgment has been reserved.
Political Bureau