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Con Court to hear argument on police failures in gang rape case

- Lee-Anne Bruce

CALS is set to present argument on secondary trauma and the duty of care that police have towards victims of crime, particularly sexual offences

[UPDATE: The Court has reserved judgment in the matter. A recording of the hearing is available here.]

On Tuesday 9 February, the Constitutional Court is set to hear an appeal brought by activist and rape survivor Andy Kawa against the Minister of Police. The case centres on the police’s failure to properly investigate the crimes of kidnapping and rape perpetrated against Ms Kawa, and whether police should be forced to pay damages for their negligence. CALS has been admitted as a friend of the court in the matter. 

In December 2010, author and entrepreneur Andy Kawa was abducted and brutally gang raped near King’s Beach in Port Elizabeth, a life-changing ordeal she documents in her recent memoir Kwanele, Enough! Ms Kawa spent years pushing for the police to investigate the crimes committed against her, but was failed time and again by those who are meant to protect her. Police failed to promptly obtain physical evidence, interview potential suspects and witnesses, or pursue video evidence, among other things.

After years of fierce advocacy, Ms Kawa turned to the courts in an attempt to hold the police accountable for these failures. The High Court ruled in her favour, granting damages against the police, but this judgment was subsequently overturned by the Supreme Court of Appeal. Ms Kawa has now taken the matter on appeal to the Constitutional Court, arguing that it raises important constitutional issues.

The Centre for Applied Legal Studies (CALS) has been admitted as a friend of the court in the matter. 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,” says Sheena Swemmer, head of the Gender Justice programme at CALS. “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,” agrees Basetsana Koitsioe from CALS. “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.”

The matter is set to be heard virtually by the Constitutional Court on 9 February 2021.

Read our heads of argument here.

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