South Africa bears international law obligations to take measures to protect women and children against violence, to prosecute acts of violence, and to prevent further acts of violence. The United Nations Convention on the Elimination of all Forms of Violence Against Women (“CEDAW”) obliges state parties to act to protect women against violence of any kind occurring within the family, at the workplace or in any other area of social life.
Section 5 of the South African Police Services Act[1] provides that SAPS members have the following duties:
- The maintenance of law and order;
- The investigation of an offence or alleged offence; and
- The prevention of crime.
Under section 7(2) of the Constitution, the SAPS have the duty to “respect, protect, promote and fulfil” the rights in the Bill of Rights. These include:
- The right to equality, under section 9 of the Constitution;
- The right to human dignity, under section 10 of the Constitution;
- The right to freedom and security of the person, which includes the right to be free from violence, under section 12(1)(c) of the Constitution.
In addition to this, Government policy provides that police have a heightened duty towards victims of sexual violence in our country[2]. In our experience, police officers fail to observe this duty of care towards victims of gender-based violence which ultimately leads to secondary victimisation. This was also the case for Ms K.
Ms K was abducted, robbed of her personal belongings, and sexually assaulted by an unknown man or men on 9 December 2010 at about 14h30 at King’s Beach, Port Elizabeth. Her assailant raped her repeatedly for the entire duration of her captivity, until 06h00 on 10 December 2010, when she managed to escape from him. Ms K ran to the beach in search of help. Eventually she got assistance from a group of men who were jogging along the beach. One of the joggers, Mr Britz, escorted her back to the parking lot and then to the Humewood police station, where she opened a case of abduction, assault, rape, and robbery arising from the incident.
Ms K was reported missing at the local police station at approximately 19h00 on 9 December. The police were provided with details of the vehicle she was driving when she left home on that day. That information was relayed to the South African Police Service (SAPS) radio control room, emergency number, 10111. Ms K’s vehicle was discovered by SAPS members at the parking area of the beach at about 23h30 that night. The vehicle had been broken into and its contents looted. Ms K was nowhere to be seen. A suspect who was found in possession of some of her belongings was arrested shortly thereafter, but he could not be linked to the crimes of abduction, assault and rape perpetrated against Ms K.
Ms K claimed for aggravated psychological damages suffered arising from alleged failure of police to conduct proper search for her and to conduct reasonably effective investigation into crimes perpetrated against her.
In short, her case is that: (a) had the police searched for her, or carried out a reasonably effective search, they would have found her and stopped the continuation of the rape shortly after 23h00 when they arrived at King’s Beach; and (b) had the police conducted a reasonably careful, diligent, and skilled investigation on the morning of 10 December and thereafter, she would not have suffered the full extent of the injury of which she complained.
The matter was heard by Sephton AJ, who found for Ms K. The learned judge found that the SAPS was under a legal duty to conduct a reasonably effective search for Ms K during the night of 9 to 10 December 2010, and to conduct a reasonably effective investigation into Ms K’s case to find her assailant/s. The high court concluded that the SAPS negligently breached these duties and that this caused Ms K to suffer additional psychopathology.
On appeal to the SCA, the court held that the findings by the high court that the elements of negligence, wrongfulness and causation were established could not be supported by the evidence proffered on behalf of Ms K and her claim should have been dismissed. The SCA held that the high court erred in making findings which flew directly in the face of the joint minute as well as the direct evidence by Ms K’s own expert witness, Professor Subramaney, regarding the issue of causation. Professor Subramaney, a psychiatrist, conceded that it did not matter what the correct diagnosis was relating to Ms K’s psychopathology, since that pathology flowed directly from the brutal assault and rape, and that the future treatment envisaged for her, whatever the correct diagnosis, would be similar. As causation was not established on a balance of probabilities, Ms K’s claim should have been dismissed. The SCA further held that:
“The High Court’s determination of the element of wrongfulness was flawed. It did not consider whether it was reasonable, in the circumstances of this case, to impose liability on the SAPS for the harm by by [the applicant]….To impose liability 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 to the slightest degree, and a successful arrest and conviction of the perpetrators of serious crimes do not ensue.”[3]
On Tuesday 9 February 2021, the Constitutional Court heard the appeal brough by Ms K. A recording of the court proceedings can be found here. The Centre for Applied Legal Studies (CALS) has been admitted as amicue in the matter. You can find CALS heads of argument to court here. Sheena Swemmer, head of the Gender Justice programme at CALS, holds that “the treatment of victims in the criminal justice system, including by police, is one of the most often cited reasons that sexual offences are under-reported. This limits access to justice.” This is certainly something we have seen in our own work. LvA will be following the court proceedings closely and writing a series of blog posts on this case.
[1] Act 68 of 1995.
[2] This includes the SAPS National Instruction 3/2008 on Sexual Offences, and the SAPS National Policy Guidelines for Victims of Sexual Offences, and the Victim Support Services, The Victim’s Charter, the Minimum Standards for Services for Victims of Crime, the National Policy Guidelines for Victim Empowerment, the National Strategic Plan on Gender-Based Violence and Femicide.
[3] AR/vol 18/page 2073, at [55]
