A landmark ruling that found in favour of a rape survivor who sued the police for aggravating the emotional trauma she suffered by not finding her during a search and for a shoddy criminal investigation was overturned in the Supreme Court of Appeal (SCA) on Wednesday 6 May.

The woman, identified by the judges as Ms K, sued the police for R5.8-million in damages following her abduction and rape in the bushes at Port Elizabeth’s King’s Beach.

The Supreme Court of Appeal on Wednesday said she had not proved that the police’s alleged failures in searching for her and conducting the investigation to find her attacker aggravated the psychological damage she suffered during the ordeal. 

The court further ruled that it would be debilitating if the police could be sued for damages for even the slightest amount of negligence in police investigations.

Appeal Court Judge Dumisani Zondo wrote the judgment on behalf of the court, with the Supreme Court of Appeal President Mandisa Maya, appeal court judge Daniel Dlodlo and acting judges of appeal Petrus Koen and  Trevor Gorven concurring. 

The court overturned a verdict by acting Port Elizabeth High Court Judge Sarah Sephton in the woman’s favour.

The woman said on Wednesday that she did not have any comment on the ruling.

In 2018, Acting Judge Sephton found in her favour and ruled that the police were liable for 40% of the damages she suffered. She ruled that the police had a duty to conduct a “reasonably effective” search and investigation into the case and failed in both. As a result, Sephton found, they had aggravated the psychological damage suffered by the woman.

The police appealed against this judgment.

In the SCA, Zondi found that the woman’s legal team had not proved that the psychological trauma and damage she suffered was aggravated when the police failed to find her in the bushes – even though this meant that she was raped again. Zondi further ruled that the police’s investigation had not been negligently handled and made a cost order against the woman.

Zondi said the high court had failed to consider whether it was reasonable, in the circumstances of this specific case, to impose liability on the police for the harm suffered by the woman. 

“To impose liability for the harm for which she sued would make it difficult for the police to conduct their investigations in the future and would expose them to the potential risk of civil litigation in every case where any rescue search or their investigations are negligent, even if only to a slight degree, and a successful arrest and conviction of the perpetrators of serious crimes do not ensue,” he said. 

He also dismissed an argument by the woman’s counsel that she should not be saddled with legal costs as she was asserting her constitutional right to freedom and security and that this would discourage others in future from doing the same. 

On 9 December 2010, the woman was taking a walk at Port Elizabeth’s King’s Beach when she was abducted, robbed and sexually assaulted. She was repeatedly raped by her attacker until 6am the next morning when she managed to escape.

At 7 pm the previous evening she was reported missing by a family member. After information about her vehicle was sent out by the police’s radio control room, her vehicle was discovered at the beach at 11.30pm. Someone had broken into the vehicle. A man who was found in possession of her belongings was arrested but he could not be linked to the kidnapping, assault or rape.

A police search was launched for the woman. This included the use of a trained search and rescue dog and a helicopter. The search produced nothing and was aborted in the early hours of the morning of 10 December. No arrests were made.

“There is no doubt that [she] suffered a great deal of trauma and stress following the highly severe traumatic events of that night,” Zondi said.

The woman then sued the police and specifically three officers who were involved in the search and investigation in her case in their individual capacity for R5.8-million in damages in 2013. Her lawsuit was based on allegations that the officers failed to conduct the search properly and also did not do a proper investigation to find the man who raped her.

Her case was that the alleged police failures aggravated the psychological damage she had suffered as a result of the crimes as they failed to find her before she was raped again.

The high court found that the police’s search was below standards reasonably expected of them and that they did not conduct foot searches or search the dunes to the right of the walkway.

However, Zondi wrote: “The High Court’s finding that [the woman] would have been saved from suffering further trauma, had she been found earlier, is inconsistent with the opinion of the experts. Their evidence made it clear that no quantifiable psychiatric loss or contribution to her psychopathology could be attributed specifically to whether she should or could have been found earlier during the morning of 10 December 2010.” 

He further found that a claim that the police investigation to find her attacker was of poor quality could also not be sustained. MC