The Constitutional Court has upheld a high court decision which found the minister of police liable for not conducting a proper search and investigation in the case of a woman who was attacked, raped and held captive in Gqeberha.
THE CONSTITUTIONAL Court has upheld a high court decision which found the minister of police liable for not conducting a proper search and investigation in the case of a woman who was attacked, raped and held captive in Gqeberha.
The judgment could have far-reaching implications for the quality of police investigations.
Andy Kawa was accosted by an unknown man at King’s Beach on December 9, 2010. She was assaulted, robbed of her belongings and later taken into the bushes and dunes where she was raped and held in captivity for over 15 hours.
She had been reported missing by her family members on the same day which prompted a search by police. They found her vehicle at the beach at around midnight on the very same night she had been attacked but were unable to locate her.
The next morning Kawa managed to escape her attacker and immediately reported the incident at a nearby police station.
The police conducted a search of the area, enlisting the help of the helicopter unit which stayed on the scene for 20 minutes. The foot search had been called off after bush dwellers informed police they hadn’t seen anything out of the ordinary.
DNA samples failed to link any of the suspects the police had identified and the person who attacked Kawa to this day remains at large. No arrests have been made, nor has a prosecution been instituted for the rape, abduction and assault that the applicant endured.
It was Kawa’s view that the quality of the SAPS search and investigation fell below the standard required of them by the Constitution.
After more than two years of no results, she turned to the high court in November 2013 to hold the minister of police “delictually” liable for negligent omission to conduct an effective search and investigation.
The high court found that had the police conducted a proper search, Kawa would have been found that evening, which would have spared her nearly four and half hours of the ordeal.
The court held that its failure to conduct a proper search and subsequent investigation exacerbated Kawa’s trauma. The court held that the minister of police was liable for 40% of Kawa’s damages.
The minister then appealed this decision in the Supreme Court of Appeal (SCA) where the court ruled in their favour. This led to Kawa’s appeal in the Constitutional Court where the SCA ruling was finally dismissed and the high court appeal upheld.
The court also ordered the minister of police to pay Kawa’s costs in the SCA and in the Constitutional Court, including the costs of two counsel.
“Having found that the search and investigation were negligent, I am of the view that the SAPS has breached its statutory and constitutional duties owed to the applicant (Kawa).
“To hold the SAPS to account for their below-par searches and investigations would improve the efficacy and quality of their work, as well as build public confidence in their ability and commitment to discharge their constitutional obligations.
“Preventing gender-based violence is a public policy consideration,” said Judge Pule Tlaletsi.
