- A woman who was repeatedly raped in Port Elizabeth in 2010, has taken the police minister to court, arguing officers failed to conduct a reasonable search to find her and investigate the case.
- The Supreme Court of Appeal ruled last year that the police took reasonable steps to find her.
- The woman has now turned to the Constitutional Court to appeal that ruling.
A woman who was raped in Port Elizabeth over 10 years ago has dragged the police minister to the highest court in the land, arguing that police officers failed to conduct a reasonable search to find her when she was raped for a period of 15 hours.
She also said officers had failed to conduct a “reasonably effective investigation” to hold her attackers accountable.
The woman – identified as Ms K in court papers – said this was wrongful in terms of the law of delict. Her matter was heard in the Constitutional Court on Tuesday.
Ms K was attacked on 9 December 2010 and at the time of the incident, she was in Port Elizabeth on a business trip.
She had a few hours to spare before her flight back to Johannesburg. She then decided to go to Kings Beach.
“She was supposed to return to her mother’s home before heading to the airport to fetch her friend who would accompany her,” according to court documents.
Ms K had parked her vehicle at a parking area around 14:30 and walked to the beach, when suddenly she was attacked by a man with a knife and a broken bottle, the papers read.
When she tried to fight back, she was overpowered, assaulted, robbed of her personal belongings and dragged into the bushes.
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The woman complied with an instruction by her assailants to take her clothes off. She was raped repeatedly for 15 hours, until the next morning.
According to the court documents, the woman suspected that there might have been more than one person in the attack.
She was assisted by a group of joggers on a morning run. They escorted her to the police station where she reported the incident.
The woman’s family reported her missing at the police station at around 19:00.
Officers discovered her vehicle at the beach at about 23:30. Police officers conducted four searches, however, despite these searches, they were unable to find and rescue her. Her attackers were still at large.
The woman took the minister to the High Court to hold him liable for the alleged negligent omission by the SAPS to conduct an effective search and investigation. The court ruled in her favour in 2018.
It found that the “prolonged rape and assault which the applicant experienced as a result of the shoddy investigation contributed towards the trauma she later suffered”.
However, the minister appealed the decision successfully in the Supreme Court of Appeal.
The Appeal Court also said the steps taken by the officers who conducted the search were reasonable.
It said police used all available resources to search for the woman.
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On Tuesday, appearing for the woman in the Constitutional Court, advocate Timothy Bruinders SC, told the justices that the officers who conducted the search did not search the entire area.
The woman is appealing the ruling of the SCA before the apex court. Bruinders said the officers who arrived at the area failed to conduct a foot search before the dog handler arrived.
The dog handler had conceded to the fact that he did not search a certain area.
He said officers failed to take the effective measures available to them when conducting the dog and helicopter search.
The officer who had conducted the helicopter search had conceded that it was capable of searching the dunes and bushes that ran along the harbour wall in a certain area, and that they would have seen Ms K in the clearing in the bushes.
Turning to the SCA, Bruinders submitted that it failed to appreciate that police had failed to discharge the duty to prevent, combat and investigate crimes of gender violence against the applicant.
“It also failed to appreciate that the SAPS had failed to discharge their duty to take ‘reasonable and appropriate measures’ to uphold these rights when discharging their search and investigation duties.”
However, arguing for the minister, advocate CJ Mouton SC, said what happened to the woman was indeed gender-based violence.
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But, he questioned what else the officers could have done or how they could have changed the search.
In papers, Mouton said: “On the facts of the instant matter, however, the respondent [the police minister] disputes the contention that there was a direct relationship between the alleged failure in carrying out their duties by the police and the psychological damage suffered by the applicant [Ms K].
“This is not only an issue of factual and legal causation, but it also involves the traditional test as to whether the legal convictions of the community, infused with constitutional precepts, would require the police to be held liable on the facts of this matter.”
Mouton also said in this matter, the experts had said they could not say that if Ms K was found earlier she would have suffered less harm.
Judgment has been reserved.
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