First published in the Daily Maverick 168 weekly newspaper.

As businessperson Andy Kawa continues her fight for justice following her gang rape, the Constitutional Court has heard that a heightened duty of care should be placed on the police to investigate gender-based violence cases diligently and carefully and to avoid secondary trauma.

“The ineffectiveness of the criminal justice system … sends an unmistakable message to the whole of society that the daily trauma of vast numbers of women counts for little.”

Quoting former Constitutional Court Justice Albie Sachs in her argument before the Constitutional Court, Nazreen Rajab-Budlender, counsel for the Centre for Applied Legal Studies (CALS), started her argument in a case that lawyers hope will win improved police investigative services for the survivors of rape and sex crimes.

CALS and the NGO Wise4Afrika were at the Constitutional Court to support Kawa’s argument before the court that there should be a duty on the police to perform their investigations in gender-based violence cases with diligence and care – and that the police should be held accountable for damages if they fail to do so.

In 2018, Kawa won a landmark ruling in the high court in Port Elizabeth when the court found that she was entitled to damages from the police for the emotional trauma she suffered: first, when they did not find her during a search and, second, for a shoddy criminal investigation.

She was kidnapped when she was taking a walk on the beachfront, held against her will and raped.

In May last year, this ruling was overturned in the Supreme Court of Appeal (SCA).

This week Kawa asked the Constitutional Court for leave to appeal that ruling.

Kawa sued the police for R5.8-million in damages for the emotional trauma she suffered following her abduction and rape in the bushes at Port Elizabeth’s King’s Beach. Her attackers were never brought to justice.

The SCA held last year that she had not proved that the police’s alleged failures in searching for her and conducting the investigation to find her attackers 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.

The Constitutional Court hears bid opposition parties bid to impeach President Jacob Zuma on September 05, 2017 in Johannesburg, South Africa. The Economic Freedom Fighters (EFF) are seeking a declaratory order to direct Parliament to consider Zuma’s conduct and whether he is impeachable following the court’s ruling that he had broken his oath of office and the country’s Constitution. (Photo by Gallo Images / Beeld / Felix Dlangamandla)

Appeal court Judge Dumisani Zondi, writing on behalf of the court, 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 also ordered Kawa to pay the costs.

“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 wrote in his judgment.

Kawa has now asked the Constitutional Court to overturn that ruling.

“Our argument focuses on the duty of care that police have towards victims of crime and particularly sexual offences, the importance of taking a victim-centred approach to cases of gender-based violence, and the secondary trauma and victimisation that may result from failure to investigate.

“Lack of professional, considerate, diligent policing may result in tremendous trauma to victims of sexual offences, but it may also have dire effects on the decision of other survivors to come forward and report crimes,” Sheena Swemmer, head of the Gender Justice programme at CALS, said.

“The treatment of victims in the criminal justice system, including by police, is one of the most often cited reasons that sexual offences are under-reported. This limits access to justice.”

“The fact that Ms Kawa’s constitutional rights have been infringed upon is not in dispute,” Basetsana Koitsioe, also from CALS, said. “Failing to properly investigate limits a number of intersecting rights, including the rights to dignity, equality, bodily and psychological integrity and the right to be free from all forms of violence. We argue the failure of police to perform their duties in line with the Constitution could result in a valid damages claim against them.”

Rajab-Budlender argued that studies have shown that police unresponsiveness in investigations relating to gender-based violence resulted in secondary victimisation adding that victims’ rights are violated through negligent investigations.

“This also impacts on the decision of other victims to come forward and report sexual violence and case attrition.”

She quoted from the 2017 South African Medical Research Council’s study, reflecting that in rape cases only 57.8% of accused were arrested and charged and of the total reported cases only 34.5% were referred for prosecution.

“Effective policing is not a luxury but a must, because failure by the SAPS to conduct its duties with due care has a far-reaching consequence for victims of crime and society as a whole.

“This demand for effective reasonable policing, built on a victim-centred and human rights approach is in fact recognised by the State [including] the Victim’s Charter, the Minimum Standards for Services for Victims of Crime, the National Policy Guidelines for Victim Empowerment, and the National Strategic Plan on Gender-Based Violence and Femicide.

“A victim-centred approach is not about the availability of state resources. On the contrary, the state must always use the available resources reasonably, not negligently or with impunity.

“This is because on a proper interpretation of the law and policy, policing is an act of public administration,” she added.

Wise4Afrika has argued that the Constitutional Court must develop the common law test for wrongfulness to include a heightened duty of care owed by the police when handling crimes related to gender-based violence as this will promote the spirit, purport and object of the Bill of Rights. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.