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GBV ball firmly in SAPS’ court after ConCourt Andy Ka...

South Africa

GENDER-BASED VIOLENCE OP-ED

GBV battle ball firmly in SAPS’s court after landmark ConCourt judgment

General view during the Gender-Based Violence (GBV) protest march organised by the Office of The Premier in collaboration with Phepha Foundation on 26 April 2021 in Durban, South Africa. (Photo by Gallo Images/Darren Stewart)

The celebrated judgment emphasises the opportunity for the newly appointed National Police Commissioner Lieutenant-General Sehlahle Fannie Masemola, to fulfil his commitment to ensuring that police officers are sensitised to the realities of gender-based violence.

In 2010, Andy Kawa was abducted, robbed and brutally gang-raped in what was then Port Elizabeth. If her ordeal wasn’t enough, she then spent years trying to get the police to properly investigate these crimes, determined not to allow impunity to reign because of shoddy police work. Finally, she instituted an action in the high court in November 2013 to hold the minister of police liable for failing to conduct an effective search and investigation.

In spite of Police Minister Bheki Cele’s call for police to prioritise gender-based violence (GBV), the South African Police Services (SAPS) continues to fail in this regard, as highlighted by this case. On 5 April 2022, the Constitutional Court handed down its landmark judgment in AK v Minister of Police, finding that SAPS was negligent in its response to Kawa’s horrific experience.

This case has emphasised the existing institutional failures within SAPS in terms of the need for a gender perspective to be integrated into policing responses as well as police leadership. South African Minister of Justice and Correctional Services Ronald Lamola has echoed this, stating that government institutions should receive gender sensitivity training. This training is arguably more necessary given the patriarchal culture within police institutions and in its frontline response to GBV.

While South Africa has progressive laws on GBV there is a significant gap in implementation when it comes to the training of police officers. This was highlighted by the Western Cape Government’s Policing Needs and Priorities 2021/2 report, which noted that 74% of detectives at the province’s top 20 police stations still had not received training on the Domestic Violence Act.

In the court a quo, the high court ruled in favour of Kawa, finding the SAPS grossly negligent in the performance of their duties in relation to both search and investigation. With regard to the search, the SAPS failed to conduct a basic foot search in the immediate 75 minutes after the applicant’s car was discovered, they called off the search too soon and failed to communicate and coordinate the different units involved in the search.

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In the high court’s view, the SAPS went through the motions demonstrating “extreme indifference”. In terms of the investigation, SAPS failed to immediately search the crime scene once the crime was reported, DNA evidence was not evaluated timeously and the CCTV footage was only viewed a staggering eight years later.

These are basic police tasks and cast doubt on SAPS’s commitment to going back to the basics, let alone its prioritisation of GBV. This also undermines the National Strategic Plan on GBV and femicide which requires that police stations are capacitated to provide victim-friendly services.

The Supreme Court of Appeal then overturned the high court judgment and found that the SAPS had acted reasonably by mobilising the resources available to them in the circumstances. Ultimately, the Constitutional Court disagreed with the Supreme Court of Appeal finding that the police had failed to act diligently and with the skill required by the Constitution.

South African jurisprudence has recognised that GBV goes to the core of women’s subordination, and has developed the state’s positive duty to protect women against such violence. AK v Minister of Police is noteworthy for drawing on international law to further specify the duties of police officers when investigating GBV. The court held that:

  • The police must act promptly and expeditiously;
  • They must take all reasonable measures available to them in the circumstances;
  • They must deploy available resources diligently and effectively;
  • They must take appropriate steps to secure available evidence, including eyewitness accounts, potential leads and suspects, and they must subject evidence to forensic analysis; and
  • They must never act in a cavalier manner or display indifference to the plight of survivors of GBV.

While perfection is not expected, and delictual liability will always depend on the facts of the case, it is not enough that police simply respond to GBV — police officers must exemplify effective conduct in line with a diligent and reasonable person.

The celebrated judgment emphasises the opportunity for the newly appointed National Police Commissioner Lieutenant-General Sehlahle Fannie Masemola, to fulfil his commitment to ensuring that police officers are sensitised to the realities of GBV.

As the public strongly emphasises fairness and effectiveness as important elements determining their confidence in the police, failing to respond appropriately to GBV could undermine the legitimacy of the police and render their obligation to protect the public, hollow and meaningless. DM

Dr Tarryn Bannister is Project & Research Officer at the African Policing Civilian Oversight Forum.

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