19 August 2024
A transgender woman who claims she was raped when police put her in the same cell as male inmates in 2016 has been trying for years to sue the Minister of Police for damages in the Western Cape High Court. Archive photo: Ashraf Hendricks
The Minister of Police has failed in a bid to appeal a previous court judgment that it could not plead in a civil case brought against him by a transgender woman who says she was raped while in police custody.
Debbie (not her real name) alleges she was raped on the night of 5 December 2016 by two of three suspects while detained in police holding cells at the rural Boland town where she lived.
Police had placed her in the cell after having arrested her for riotous behaviour at her parents’ request.
In her civil case against the Minister of Police, filed at the Western Cape High Court in November 2019, Debbie states that after her release the next day, she, with the assistance of the ABBA Family Counselling Centre and the Triangle Project, went for a medical exam which confirmed anal penetration.
Debbie said she did not pursue criminal charges as she did not trust the police officers in her hometown.
She argued that the police officers at the station where she was held had contravened the SAPS Western Cape Standard Operational Procedure for the Detention of Transgender Prisoners by putting her in a cell with men. She argued she should have been placed in a cell by herself, and there was an empty cell available.
Following Debbie filing the civil claim against the Minister of Police, the ministry’s response was due on 12 February 2020. But when no request for an extension for the filing of the plea was received by the court, a Notice of Bar was served on the police minister on 17 February 2020.
A Notice of Bar is a procedural step that stops the other party from filing a plea when they have failed to adhere to the rules of court. The Notice of Bar also stops court cases dragging on for years, and forces parties to stick to the timelines prescribed in the rules, so cases can reach finality.
The Minister of Police only applied for condonation for late filing of the plea on 17 August 2022, after twice seeking postponements of a default judgment sought by Debbie’s lawyers.
Following Judge van Heerden’s 27 September 2023 ruling, in which he found that the Minister had not satisfactorily explained why it had taken 26 months to apply for a condonation, the police ministry in December 2023 sought leave to appeal the decision.
But on 7 June, Judge van Heerden denied leave to appeal, ruling there were no prospects that a different court would come to a different decision.
The Minister of Police had a month to approach the Supreme Court of Appeal but Debbie’s legal team said they had not received any such notification. This would mean Debbie could apply for a default judgment.