AK v Minister of Police (Centre for Applied Legal Studies and Wise4Afrika Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Mogoeng CJ and Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J and Pillay AJ and Theron J and Tlaletsi AJ
• Judgment Date: 05 April 2022
• Docket Number: CCT 94/20
• Hearing Date: 18 February 2022
• Court: Constitutional Court
• Citation: 2022 JDR 0612 (CC)

Tlaletsi AJ (Khampepe J, Madlanga J, Majiedt J, Mhlantla J and Theron J concurring):

Introduction:

[1]

What happened to the applicant is distressing. The applicant was attacked, robbed and held in captivity among the bushes and sand dunes abutting Kings Beach in Gqeberha (formerly Port Elizabeth) from 14h30 on 9 December 2010 until the following morning. She was, over this period, traumatised and repeatedly raped. The incident demonstrates how women in this country are unable to enjoy their freedoms,

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enshrined in the Bill of Rights, free from gender-based violence. Truly, few things can be more important to women than freedom from the threat of sexual violence. [1]

[2]

Unfortunately, this matter cannot be divorced from the horrific reality that this country has for far too long been, and continues to be, plagued by a scourge of gender-based violence to a degree that few countries in the world can compare. In Tshabalala, this Court observed:

"Hardly a day passes without any incident of gender-based violence being reported. This scourge has reached alarming proportions. It is sad and a bad reflection of our society that 25 years into our constitutional democracy, underpinned by a Bill of Rights, which places a premium on the right to equality and the right to human dignity, we are still grappling with what is a scourge in our nation." [2]

[3]

The state has a duty to protect women against all forms of gender-based violence that impair their enjoyment of fundamental rights and freedoms. It has to take reasonable and appropriate measures to prevent the violation of those rights. The South African Police Service (SAPS) is one of the primary state agencies responsible for the protection of the public in general, in particular women and children, against the invasion of their fundamental rights by perpetrators of violent crimes. The courts are also under a duty to send a clear message to perpetrators of gender-based violence that they are determined to protect the equality, dignity, and freedom of all women. [3] This matter is about whether the SAPS, in the execution of their duties, indeed took reasonable and appropriate measures in the circumstances to prevent the violation of the rights that the applicant should at all times enjoy.

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[4]

The applicant is applying for leave to appeal against the decision of the Supreme Court of Appeal, [4] which upheld an appeal against the decision of the High Court of South Africa, Eastern Cape Local Division, Gqeberha. The High Court held that the Minister of Police was delictually liable for the wrongful omissions of the SAPS, which negligently failed to protect the applicant from harm by not conducting a reasonably effective search to find her, or a reasonably effective investigation thereafter into the crimes committed against her. The nub of the applicant's complaint is that the failed search and investigation caused her to suffer serious psychological and psychiatric trauma.

Parties:

[5]

The applicant is AK, an adult woman living in Johannesburg. The respondent is the Minister of Police who is sued in his capacity as the Minister responsible for the conduct of members of the SAPS in executing their constitutional obligations to prevent, combat and investigate crime. As such, the Minister is vicariously liable for the delictual conduct, including omissions of members of the SAPS. There were other respondents cited, who were individual members of the SAPS connected to the investigation of the horrific incident. Claims against them were dismissed by the High Court.

[6]

The Centre for Applied Legal Studies (CALS) [5] was admitted as the first amicus curiae and WISE4AFRIKA [6] as the second amicus curiae.

Background:

[7]

On 9 December 2010, the applicant was in Gqeberha on a business trip and to visit her mother. She had a few hours to spare before her flight back to Johannesburg and so decided to take advantage of the perfect weather conditions and go for a walk at

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Kings Beach. She planned to return to her mother's house to fetch a friend before heading to the airport to catch a flight back to Johannesburg. She parked her motor vehicle in the parking area of the beach at around 14h30 and started her walk to the shoreline.

[8]

An unknown man accosted and assaulted the applicant and robbed her of her personal belongings. The man made her choose between death or accompanying him into the bushes. In desperate fear for her life, she surrendered and accompanied her assailant. She was taken into the bushes and dunes. She was instructed to take off her clothes and was blindfolded with a piece of her clothing. She was kept in captivity and raped repeatedly for a period of approximately 15 hours, until about 06h00 the next morning (10 December 2010). Although she was accosted by one man, it is not known how many assailants were involved in the rape and assault.

[9]

When she eventually managed to escape, on the morning of 10 December 2010, she came across a group of joggers and pleaded for assistance. One of the joggers escorted her to the Humewood Police Station, where she reported the incident. In the meantime, since she had not returned to her mother's house to fetch her friend, and having missed her flight back to Johannesburg, she was reported missing by her uncle on the night of 9 December 2010. Her motor vehicle was discovered by the SAPS at Kings Beach around 23h30 on the night of 9 December 2010. It had been broken into and some items had been removed. Members of the Humewood Police Station arrived at Kings Beach around midnight.

[10]

Warrant Officer (W/O) Gerber from the Search and Rescue section of the K9 unit attached to the Humewood Police Station was called to the scene to conduct a search for the applicant in the area. On arrival, he found at least two SAPS officers, W/O Rae and Sergeant Pretorius from the Drug Detection section of the K9 unit attached to the New Brighton Police Station, waiting for him next to the applicant's motor vehicle. Their attack dog (which was trained to detect drugs rather than for search and rescue) was kept in their police vehicle, as they could not use it. They briefed W/O Gerber of

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the situation. He started to plan his search. He drove his 4x4 vehicle along the shoreline to check whether there could be a person lying in the water. He activated the vehicle's blue light and intermittent siren sound to make the SAPS presence known in the area in case someone was stranded. He drove up to the harbour wall. He thereafter conducted a foot search with his dog in the area he had identified in his plan. His dog managed to spot three male "bush dwellers" among the bushes and the dunes. He asked them if they had seen anything out of the ordinary, or a person who might be lost. They said they had not. W/O Gerber could not find the applicant and the foot search was called off.

[11]

The police then called the helicopter unit to the scene for assistance. It arrived at around 01h45 on 10 December 2010. It conducted a search with a high powered "night sun" – a bright light used to enhance visibility at night – along the shoreline, dunes and bushes which lasted approximately 20 minutes. The "night sun" was operated by Mr Smith, a former W/O. Part of the area adjoining the nearby harbour was demarcated as a no-fly zone. The search yielded no positive results. In the circumstances, the applicant endured several more hours of rape, and trauma and only escaped in the early hours of the next morning.

[12]

Following the incident, the applicant's case was initially investigated by Detective W/O Andrews who was on standby duty on 10 December 2010. He arrested Mr Jakavula who was found in possession of some clothing items which had been in the applicant's motor vehicle. On Monday, 13 December 2010, the docket was handed to W/O Madubedube to take over the investigation. He is a detective attached to the Family Violence, Child Protection and Sexual Offences Unit. On the same day, W/O Madubedube arranged with the Humewood Fire Department to view the CCTV footage of the Kings Beach parking area with the applicant. He also sent Sergeant Solomons to the applicant to compile an identity kit of the suspect. On 15 December 2010, the applicant attended at St Albans Correctional Centre for an

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identity parade. She could, however, not identify anyone in the parade as her assailant. Mr Jakavula was part of the parade. [7]

[13]

Later that day, municipal officials rounded up the "bush dwellers" to relocate them as part of their festive period clean-up and invited W/O Madubedube to bring the applicant in for an informal identification parade. The applicant could not identify anyone as her assailant among the 25 to 30 "bush dwellers" paraded. On 23 May 2011, DNA tests excluded Mr Jakavula as the donor of the DNA material found in samples obtained from the applicant. Other suspects were similarly excluded as the rapists, and to this day, the applicant's assailants remain at large and no arrests have been made nor has a prosecution been instituted for the rape, abduction and assault the applicant endured.

[14]

In the applicant's view, the quality of the SAPS' search and investigation fell below the standard required of them by the Constitution. After two and a half years of attempting to coax the SAPS into conducting what she believed to be a proper investigation, the applicant...