A rape survivor has been left with a potentially huge lawyers’ bill after losing, on appeal by the State, a civil case she hoped would hold police accountable for failing to find her during her ordeal. File picture: Pexels
A rape survivor has been left with a potentially huge lawyers’ bill after losing, on appeal by the State, a civil case she hoped would hold police accountable for failing to find her during her ordeal. File picture: Pexels

Rape survivor left with huge legal bill after losing court case against cops

By Bongani Nkosi Time of article published May 8, 2020

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Johannesburg - A rape survivor has been left with a potentially huge lawyers’ bill after losing, on appeal by the State, a civil case she hoped would hold police accountable for failing to find her during her ordeal.

It was common cause that businesswoman and activist Andisiwe “Andy” Kawa endured a 15-hour rape ordeal in the bushes along King’s Beach, Port Elizabeth, on December 9, 2010. She was held captive overnight there by a man who had overpowered her while she took a walk along the beach.

Kawa has repeated publicly and in court her assailant held her at knifepoint, assaulted, robbed and threatened to kill her. He blindfolded her and raped her repeatedly overnight. She suspected she was raped by more than one man.

No one was ever arrested for the rape.

Kawa found fault in the police’s failure to locate her during their search that included use of K9 dogs and a helicopter. She sued for negligence, failure of police to conduct proper search for her and aggravation of her psychopathology.

The victory she achieved in 2018 at the Port Elizabeth High Court, where Acting Judge Sarah Sephton ordered police to pay 40% of her damage claims, has been set aside by the Supreme Court of Appeal (SCA).

In a unanimous judgment, Judge Dumisani Zondi ruled in favour of the appeal brought by the Bheki Cele-headed ministry. Judge Zondi set aside Judge Sephton’s orders, and found against submissions that police failed to properly execute their job when searching for Kawa. The SCA ruling referred to Kawa as Ms K.

“The steps taken by the police to find Ms K are, in my view, reasonable,” said Judge Zondi. 

“They took all reasonably practicable and appropriate precautions to carry out an effective search for Ms K. No negligence concerning the search was proved. A well-trained search and rescue dog was used and (Warrant Officer) Gerber called for a helicopter search.”

Judge Zondi also shot down Kawa’s claim for aggravated psychological damages as a result of police’s failure to find her.

“The high court’s finding that Ms K would have been saved from suffering further trauma had she been found earlier is inconsistent with the opinion of the experts,” said Judge Zondi.

“Their evidence made it clear that no quantifiable psychiatric loss or contribution to her psychopathology could be attributed specifically to whether she should or could have been found earlier.”

Judge Zondi also found in favour of the Police Ministry’s argument that Judge Sephton’s judgment would open a floodgate of lawsuits against police over probes without results. Such cases included the killing of Orlando Pirates goalkeeper, Senzo Meyiwa.

Said Judge Zondi: “To impose liability for the harm for which Ms K sued would make it difficult for the police to conduct their investigations in the future and would expose them to the potential risk of civil litigation in every case where any rescue search or their investigations are negligent, even if only to a slight degree, and a successful arrest and conviction of the perpetrators of serious crimes do not ensue.”

Judge Zondi slapped Kawa with legal costs of both the SCA and high court proceedings.

These are fees for two counsels that represented her and the Police Ministry at the SCA, and further fees for two counsels for the parties at the high court.

She also had to foot the bill for the costs in obtaining medico-legal reports from two doctors, “as well as their reasonable qualifying, travelling and accommodation expenses (if any) in connection with the trial”, Judge Zondi ruled.

Kawa declined to comment.

@BonganiNkosi87

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