Landmark rape ruling overturned by Supreme Court of Appeal

The Supreme Court of Appeal has overturned a High Court ruling that police should pay damages to a woman who was raped in Port Elizabeth nearly ten years ago.

In December 2010, the woman, identified in court as Ms K, was abducted while walking on Kings Beach, Port Elizabeth and raped repeatedly in sand dunes. She sued the Minister of Police, claiming police negligence in not properly looking for her after the alarm was raised that she was missing, and demanding emotional damages for the police’s failure to investigate properly and make arrests.

Two years ago, in a landmark ruling, Port Elizabeth High Court Acting Judge Sarah Sephton ruled in her favour, ordering that the police must pay her 40% of whatever damages claim she could prove.

While this still had to be aired at trial, she was claiming R5.8 million in the summons.

But on Wednesday the Supreme Court of Appeal said the High Court had been wrong and found in favour of the Minister of Police.

Appeal Judge Dumisani Zondi (with four judges concurring), said to impose liability in this case would open the doors for civil litigation in every case where it was alleged there had been negligence in any search for a victim or investigation, even if only to a slight degree.

Evidence during the trial was that Ms K was abducted in the afternoon of 9 December, and held captive until 6am the following day. She was repeatedly raped before she managed to escape and alert joggers on the beach who came to her rescue. She was reported missing by family at about 7pm. Her car was discovered in the parking lot at about 11:30pm.

A police search was launched, including the use of a trained dog and a helicopter, but was aborted in the early hours of the morning.

Nothing came of the subsequent police investigation and her attacker or attackers were never found.

In her claim, she said the police had not done enough to find her that night. If they had, they would have found her, she said, and been able to stop the rape and probably to make arrests there and then. She said she never heard a siren or voices. She saw the helicopter but it did not spot her.

Judge Zondi said, however, that the evidence of the search team showed that the police had mobilised all available resources and these steps were “reasonable”.

While there might have been omissions in the police investigation - including a failure to question bush dwellers in and around the beach “with any sense of urgency”, this did not prove “wrongfulness” which was an essential element in a liability claim, he said.

“To impose liability for harm in this case would make it difficult for police to conduct their investigations in future,” Judge Zondi said.

He said Ms K had also failed to prove that the actions of the police, and not the attack and rapes, had resulted in her trauma, as even her own experts had conceded.

He upheld the appeal and ordered her to pay the minister’s costs.

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