SCA overturns ruling against police in woman’s rape ordeal

The Supreme Court of Appeal (SCA) has ruled that the police cannot be held legally responsible for the trauma suffered by a businesswoman who endured a harrowing 15-hour-long kidnap and rape ordeal.

The high court in 2018 found the officers tasked with investigating her disappearance could have spared her five hours of terror if they had conducted a proper search and that the SAPS was liable for 40% of her proven damages.

The woman, identified only as “Ms K”, was abducted from Kings Beach in Port Elizabeth on the afternoon of 9 December 2010. She was dragged into the nearby sand dunes where she was held captive overnight and repeatedly raped before she finally managed to escape and seek help from a group of early-morning joggers.

The police search of the beach and surrounding area – which only started about four and a half hours after the woman’s family reported her missing and was subsequently called off due to bad weather – was unsuccessful.

Her attacker was also never arrested.

In the high court, Judge Sarah Sephton identified a number of shortcomings in the way police had conducted the search that night, as well as in how they had investigated afterwards.

She found that had they conducted a more thorough search, “they may have walked into [Ms K] and her perpetrator”.

“Given the restricted size of the area, it would in all likelihood not have taken the SAPS members longer than an hour to conduct such a search. [Ms K] would have been found by 1am … thus reducing the further trauma experienced by [Ms K] of hearing the helicopter fly over, and fly away, and further violations in the form of rape over the next number of hours,” Sephton said.

She found the actions of the police “at all times fell below the standards reasonably expected of them”.

But in the appellate court, Judge Dumisani Zondi – with four judges concurring – disagreed.

“The steps that were taken by the police to find Ms K are, in my view, reasonable,” Zondi said in handing down judgment on Wednesday. “They took all reasonably practicable and appropriate precautions to carry out an effective search for Ms K. No negligence concerning the search was proved.”

Ultimately, Zondi found that to hold them liable in this instance “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 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”.

In overturning the high court’s ruling, Zondi also awarded the police the costs of the application.

“We were urged by Ms K’s counsel not to make a costs order against her. The basis for this contention was that, by bringing an action against the police, Ms K is essentially asserting her constitutional right to freedom and security and that, to mulct her with costs would have a chilling effect not only on her, but also on members of society who might wish to assert their constitutional rights,” Zondi said.

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