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Constitutional Court finds police negligent in gang rape case

- Lee-Anne Bruce

The Constitutional Court has made a historic finding, granting damages against the police for their failures in a case of kidnapping and rape

On Tuesday 5 April, the Constitutional Court handed down judgment in an appeal brought by activist and rape survivor Andy Kawa against the Minister of Police. The Court upheld Ms Kawa’s appeal with costs, finding that police were negligent in their investigation of the crimes of kidnapping and rape perpetrated against her. CALS intervened as a friend of the court and was permitted to present evidence in the matter.

In December 2010, author and entrepreneur Andy Kawa was abducted and brutally gang raped near King’s Beach in Port Elizabeth. Ms Kawa spent years pushing for the police to investigate the crimes committed against her, but was failed time and again by those meant to protect her. After years of fierce advocacy, Ms 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. This judgment was subsequently overturned by the Supreme Court of Appeal – with costs awarded against Ms Kawa.

Ms Kawa then took the matter on appeal to the Constitutional Court, arguing that it raises important constitutional issues. The Centre for Applied Legal Studies (CALS) was admitted as a friend of the court and applied to present evidence in the matter. We argued that the police have a duty of care towards victims of crime and particularly sexual offences, that a victim-centred approach is crucial in cases of gender-based violence, and that a failure to investigate these crimes may result in secondary trauma and victimisation. CALS was represented by advocate Nasreen Rajab-Budlender SC and in-house counsel Lerato Phasha.

Yesterday, the Court handed down judgment in Ms Kawa’s favour. Justice Tlaletsi found that the police had been negligent in conducting their search and investigation and that these failures contributed to the harm experienced by Ms Kawa. Not only was the police’s inaction negligent, it was also found to be wrongful: the police breached their constitutional duties to victims of gender-based violence in ways that were significant and actionable.

The Court further dismissed the Minister of Police’s claim that finding police liable in this case would have a “chilling effect” on their ability to fulfil their obligations, since this is at odds with the central value of accountability. If anything, the Court suggests, “not imposing liability would have a ‘chilling effect’ on the ability of survivors of gender-based violence to vindicate their rights and hold the SAPS liable for any secondary victimisation it has caused.” The Supreme Court’s order is thus set aside and the High Court’s judgment awarding damages stands. 

Justice Tlaletsi further granted CALS’ application to present new evidence, finding our submissions were relevant and of assistance to the Court. He concludes that the evidence brought by CALS “demonstrates how when the SAPS fail to act with empathy and compassion or engage in victim-blaming behaviour, this results in secondary victimisation” and that this “violates victims’ rights to equality, dignity and freedom from violence.”

“We are pleased with the outcome of this matter,” says Sheena Swemmer, head of the Gender Justice programme at CALS. “We hope that Ms Kawa finally has some sense of justice and closure after more than eleven years engaging with the legal system. This judgment is a step towards acknowledging victims’ rights and holding the police to a standard that is professional and compassionate in dealing with cases of gender-based violence. We continue to advocate for a charter of victims’ rights to guide norms and standards of policing.”

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