The Constitutional Court will hear today a matter regarding police negligence in a rape case.
In December 2010, Ms K was abducted while walking on Kings Beach, Port Elizabeth, and raped repeatedly in the sand dunes.
The police had been alerted that she was missing and her car was in the nearby parking lot. During her ordeal, the police helicopter was flying nearby and a detective with a dog was about 20 metres away. However, police called off the search in the early hours of the morning and the rapes continued until she managed to escape at 6am.
Ms K alleges that the police then failed to investigate the matter properly. They did not question homeless people living in the dunes nor take down their details before they were forced to move by the local authority.
The police also failed to view the full CCTV footage available, which showed a potential suspect in the area. They only did so in February 2011.
It also took eight years before they sent a piece of evidence, found at the crime scene, for DNA testing.
Ms K won her damages claim in the Port Elizabeth High Court. However, the Supreme Court of Appeal (SCA) overturned this decision. The SCA held that to impose liability in this matter would open the doors for civil litigation whenever it was alleged there had been negligence “even if only to a slight degree”.
The SCA said the police’s mobilisation of all available resources was “reasonable”. Any omissions in the investigation did not prove “wrongfulness”, which is an essential element in a liability claim.
The police will rely on the “floodgates of liability” argument. Ms K’s lawyers will argue that SAPS were “grossly negligent” in discharging their constitutional duties.