In December 2010, businesswoman Andy Kawa was abducted and gang raped for more than 10 hours on the beach while visiting her home town to finalise the purchase of a house for her mother in Gqeberha.
For many years she pushed the police to investigate the matter but was failed by those who were meant to protect her. She blamed the police for not doing enough to find her on the night she was brutally raped, that they did not also obtain physical evidence in time, interview suspects and witnesses and failed to view video footage on time.
On Tuesday, 12 years since her ordeal, the Constitutional Court in a landmark ruling asserted her rights and those of many victims of crime in finding that the police minister can be held liable for the shoddy police work in the case. The apex court noted that had Kawa been found sooner, she would have been spared a significant number of hours of the rape.
The judgment further stated that the SA Police Service (SAPS) breached its statutory and constitutional duties owed to Kawa because the mistakes in the search and investigation were significant and therefore should be actionable.
The justices of the court said not imposing liability would have a chilling effect on the ability of survivors of gender-based violence to vindicate their rights. This judgment is significant and has been hailed as a victory not just for Kawa but all victims of crime in that, firstly, it affirms citizens' rights in holding the government to account in so far what it is mandated to do constitutionally, a sentiment we share wholeheartedly.
Secondly, the apex court has again demonstrated why it is our last line of defence against government incompetence by placing responsibility to the management of the police to ensure rank and file officers are well trained, held to higher standards and do right by the victims of crime.
The judgment found that the police investigation in Kawa's case was negligent in fundamental respects and that the omissions of the SAPS were both the factual and legal cause of the harm sustained by the victim.
This is a welcome ruling that allows not just Kawa but all victims of crime to litigate, albeit with taxpayers footing the bill, to hold the state to higher standard when it comes to protection of citizens' rights as enshrined in the constitution.
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