Pretoria - The Constitutional Court held that the 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.
Kawa has, after a legal fight of nearly 12 years, 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 brutally raped for nearly 15 hours near Kings Beach in December 2010. She had been abducted.
She documented the life-changing ordeal in a memoir Kwanele, Enough! My Battle with the SAPS to get Justice for Women.
Kawa spent years pushing for police to investigate the crimes committed against her, but was failed time and again by those 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 others.
Kawa turned to the courts in an attempt to hold the police accountable for their failures.
The high court ruled in her favour, granting damages against the police.
The high court held that the police were 40% liable for her damages.
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.
She then turned to the Constitutional Court, arguing that her case raised important constitutional issues.
The Centre for Applied Legal Studies 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 ruling in Kwawa’s favour, the Constitutional Court found that the police had been negligent in conducting their search and investigation, and that the failures contributed to the harm she experienced.
Not only was the police’s inaction negligent; it was also found to be wrongful,
and that the police breached their constitutional duties to victims of gender-based violence.
The Constitutional Court ruled that the high court’s initial ruling that the police was partially liable for her damages, was correct.
The primary issue before the apex court 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 and helicopter search, but they did not search the entire area, stopping at a certain point when the police could not locate her, while Kawa was 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.
The Constitutional Court found that there was no justifiable reason why the police officer, who conducted a search with his police dogs, stopped the search at a certain point.
It was found that if he allowed his dog to move 20m to 30m further, the dog would possibly have picked up the presence of the people who were in the area, including the victim.
There was no evidence that there were barriers that would have prevented him or his dog from going further.
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 court further noted that this incident demonstrated how women in this country were unable to enjoy their freedoms, enshrined in the Bill of Rights, free from gender-based violence.
“Unfortunately, this matter cannot be divorced from the horrific reality that this country has for far too long been, and continues to be, plagued by a scourge of gender-based violence to a degree that few countries in the world can compare,” the court said.
In commenting to the Pretoria News following 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.”
Pretoria News