Pretoria - The question on whether the police failed in their constitutional duty towards a woman who was brutally raped near Kings Beach in Port Elizabeth came under the spotlight yesterday in the Constitutional Court.
In December 2010, Andy Kawa was abducted and brutally gang raped for an entire night on the beach. She documented the life-changing ordeal in her memoir, Kwanele, Enough!: My Battle with the South African Police Service to get Justice for Women.
Kawa spent years pushing for the police to investigate the crimes committed against her, but was failed time and again by those who were meant to protect her.
She said the police did not do enough to find her that night, nor did they promptly obtain physical evidence, interview potential suspects and witnesses, or pursue video evidence, among other things.
Kawa turned to the courts in an attempt to hold the police accountable for these failures. The high court earlier ruled in her favour, granting damages against the police. This judgment was, however, subsequently overturned by the Supreme Court of Appeal.
Kawa has taken the matter on appeal to the Constitutional Court, arguing that it raises important constitutional issues.
The Centre for Applied Legal Studies, admitted as a friend of the court in the matter, focussed its arguments on the duty of care that police have towards victims of crime, particularly sexual offences.
It also highlighted the importance of taking a victim-centred approach to cases of gender-based violence, and the secondary trauma and victimisation that might result from failure to investigate.
The Centre for Applied Legal Studies said the lack of professional, considerate, diligent policing might result in severe trauma to victims of sexual offences.
It said it might also have dire effects on the decision of other survivors to come forward and report crimes.
The treatment of victims in the criminal justice system, including by police, was one of the most often cited reasons that sexual offences were under reported, the Centre for Applied Legal Studies argued.
The primary issues before the apex court yesterday was whether the SAPS failed Kawa in not conducting a thorough search on the night when it became known that she went missing. The police did conduct a sniffer dog search as well as a helicopter search, but they did not search the entire area.
The search stopped at a certain point when the police could not locate her, while Kawa was all along being held captive and raped in the vicinity.
Part of Kawa’s case is also that the SAPS failed to conduct a thorough investigation later, especially in light of their constitutional obligations to eradicate gender-based violence.
Her ordeal started when she took a walk on the beach on December 9, 2010, while waiting for her flight from Port Elizabeth to Johannesburg.
She was attacked by a man wielding a knife and a broken bottle. He dragged her into bushes and repeatedly raped her for 15 hours before she managed to escape the next morning.
She suspected that there was more than one person involved in the rape.
Due to her failure to return to her mother’s home in Joburg, she was reported missing the previous evening and the SAPS found her car parked at the beach, where it was broken into.
The SAPS conducted searches along the beach on foot, while another officer drove along the shoreline for about 20 minutes. A dog handler was later called in and a helicopter also conducted a search. When they did not find her, the search was called off. This, while Kawa was repeatedly raped for several more hours in the vicinity and she could hear the helicopter.
Only one person was later arrested for being in possession of the stolen goods from her car. He could not be linked to the rape. Her assailants remain at large.
In granting her damages, the high court, among others, found that shoddy police work was at play. The Supreme Court, on the other hand, overturned the high court judgment and found the SAPS was not negligent.
Kawa said the case was a constitutional matter as it concerned her right to psychological and bodily integrity. The SAPS had an obligation to protect that right.
The SAPS said it it did all it could to search for her that night and to investigate the matter. It was argued on behalf of the SAPS that the case did not involve gender-based violence, but that it was a normal damages claim.
Pretoria News