AK v Minister of Police
Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
Citation | 2023 (1) SACR 113 (CC) |
AK v Minister of Police
2023 (1) SACR 113 (CC)
2023 (1) SACR p113
Citation |
2023 (1) SACR 113 (CC) |
Case No |
CCT 94/20 |
Court |
Constitutional Court |
Judge |
Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J and Tlaletsi AJ |
Heard |
April 5, 2022 |
Judgment |
April 5, 2022 |
Counsel |
TJ Bruinders SC and N Lewis for the applicant. |
Flynote : Sleutelwoorde
Court — Constitutional Court — Jurisdiction — Constitutional matters — What constitutes — Whether negligently conducted police search and investigation in gender-based-violence case could be wrongful and could give rise to delictual liability — Question bore directly on ss 7(2) and 12 of Constitution and did raise constitutional issue.
Police — Powers and duties of — Investigation of crime — Search and investigation in gender-based domestic-violence matter — South Africa party to several treaties which enshrined rights of women, and European Court of Human Rights required high standard of professional conduct of police, consistent with positive obligation to combat gender-based violence — Police negligently conducting search and investigation, giving rise to delictual liability.
Headnote : Kopnota
The applicant had been assaulted, held captive and raped in a clearing between bushes in sand dunes near a beach. The police had conducted a search for her after they had received information that she was missing, and had searched the general area of the beach, but had missed seeing her despite having used a helicopter with a very bright light. She claimed damages from the police for their negligence in conducting the search and in the subsequent negligence in the carrying-out of the investigation. She contended that those failures had caused her to suffer additional psychopathology. The High Court upheld her claim and held the respondent liable for 40% of the damages that she would be able to prove. The respondent appealed to the Supreme Court of Appeal, which upheld the appeal, holding that no quantifiable psychiatric loss or contribution to her psychopathology could be attributed to her not having been found earlier, and that the decision to call off the helicopter search had been based on safety considerations and was reasonable. It also held that the police had mobilised all the available
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resources at their disposal and taken all reasonably practicable and appropriate precautions to carry out an effective search. It held that there had been no negligence in either the conducting of the search or of the subsequent investigation. It also held that the High Court had erred in failing to consider whether it was reasonable to impose liability on the police for the harm suffered by the applicant, and that to impose liability for such harm would make it difficult for the police to conduct their investigations in the future. The applicant applied for leave to appeal to the Constitutional Court.
Held (per Tlaletsi AJ for the majority), as to the jurisdiction of the court in the present matter, that the argument by the respondent that the applicant's case was not about gender-based violence, nor did it involve a constitutional issue, but was a normal delictual action, ignored the novel legal question whether a negligently conducted police search and investigation, which caused a person harm, could be wrongful and give rise to delictual liability. That question bore directly on ss 12 and 7(2) of the Constitution, and required that the court consider whether the police's 205(3) obligations to protect, combat and investigate crime should translate into private-law duties. That question certainly did raise a constitutional issue and the court accordingly had jurisdiction. (See [59] – [60].)
Held, further, as to the search and the interference with the factual finding of the High Court, that not even a basic footsearch had been conducted between the time the police discovered the applicant's vehicle and when the officer from the search-and-rescue section of the K9 unit arrived 75 minutes later, that factual finding could only be interfered with on appeal if the finding was clearly wrong, which was not the case in the matter at hand. Reasonable police officers would have conducted a basic footsearch of the area with or without torches and they could easily have found the applicant. The total failure to conduct the most basic of footsearches before the office's arrival was certainly negligent. (See [74].)
Held, further, that the search-and-rescue officer, who possessed expertise in searching, would have either included the further area in his plan when actually conducting the search or would have specifically instructed the helicopter to search that area. The appellate court had therefore erred when it held that the conduct of the police in respect of the search was not negligent merely because they mobilised all the resources available to them in the circumstances. (See [78] and [81].)
Held, further, that there were at least two fundamental omissions by the police that tainted the investigation. Although they knew on the morning after the applicant went missing that she was being kept in and around the vegetated sand-dune area populated by so-called 'bush dwellers', they had failed to immediately round up that community to search for possible suspects while the incident was fresh. Secondly, with full knowledge that the parking area at the beach was covered by CCTV cameras, the police should immediately have made plans to obtain and view the video footage for possible leads, but the investigating officer had only watched part of the footage three days later. The police had failed to take reasonable measures which were available to them in the circumstances and had failed to act promptly and expeditiously so as to follow up on any available leads. They had failed to act diligently and with the skill required of them by the Constitution. (See [82] – [83] and [86].)
Held, further, that it was trite that the duty to prohibit rape and other forms of gender-based violence was a customary norm of international law and South Africa was a party to several treaties which enshrined the rights of women. The European Court of Human Rights had imposed a high
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standard of professional conduct on the police, and the approach taken by it was far more strenuous than the relatively lax approach which the Supreme Court of Appeal took in the present matter. That standard was consistent with the positive obligation to combat gender-based violence established by the Constitutional Court. (See [88] and [94].)
Held, further, as to factual causation, that the applicant did not need to determine causation as a matter of mathematical certainty or science, but, rather, causation was established on a common-sense weighing-up of the evidence. Therefore, the Supreme Court of Appeal had misdirected itself in finding that no quantifiable psychiatric loss could be attributed specifically to whether the applicant could have been found earlier, and that there was no method of quantifying the psychopathological damage suffered because of the omission. (See [110].)
Held, further, as to legal causation, all that was required was for the police to cover a wider area than they had with the resources already employed, both in the search and investigations. Based on the Constitutional Court's strong pronouncements on the duty of all sectors of society to combat the scourge of gender-based violence, the omissions in this case invoked moral indignation and were not too remote to attract delictual liability. (See [114].)
Held, further, as to whether the finding by the High Court would have a 'chilling effect' on the police's ability to discharge its constitutional obligations, not imposing liability would have a 'chilling effect' on the ability of survivors of gender-based violence to vindicate their rights and hold the police liable for any secondary victimisation they had caused. The imposition of liability in those circumstances would not open the floodgates because any potential applicant would still have to satisfy all the elements of delictual liability, and this would be dependent on the facts of each case. In the instant case, the fact that the shortcomings of the police occurred in the context of the scourge of gender-based violence helped tip the scales in favour of imputing delictual liability. The conduct of the police was wrongful. (See [121], [123].)
Held, further, that, with regard to the order of costs against the applicant by the Supreme Court of Appeal, based on its finding that this was an ordinary delictual matter which did not raise a constitutional issue, the matter raised a genuine constitutional issue regarding the vindication of constitutional rights and the constitutional duties of the police. Public-policy considerations in relation to gender-based violence enjoined the court to apply the standard principle of costs in constitutional matters. (See [127].)
An order was accordingly made, (i) granting leave to appeal; (ii) upholding the appeal; (iii) setting aside the order of the Supreme Court of Appeal; and (iv) ordering the Police Minister to pay the applicant's costs in the Supreme Court of Appeal. (See [129].)
Theron J wrote a concurring judgment in which Majiedt J also concurred (see [130] – [148]). Pillay J wrote a dissenting judgment in which Mogoeng CJ and Jafta J concurred (see [149] – [287]). The dissenting judges felt that the applicant did not meet the threshold of proving material omissions on the part of the police, that imposing liability on the respondent was in the circumstances unreasonable and that the applicant's...
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