14 December 2023
A woman is suing the Minister of Police for damages after arguing that SAPS had breached their constitutional duties to victims of gender-based violence when investigating her rape case 13 years ago. Archive photo: Barbara Maregele
Andy Kawa, who is suing the Minister of Police for negligence in investigating her rape 13 years ago, finally has a date for her court case.
On 9 December 2010, Kawa was abducted, attacked, robbed and repeatedly raped for 15 hours near Kings Beach in Gqeberha. She managed to escape in the early hours of the next morning and was assisted by a group of joggers. Her family had reported her missing.
According to court documents, police conducted searches in cars, on foot, with dogs, and in a helicopter to find Kawa. Police arrested one person who was charged for being in possession of Kawa’s belongings. However, the accused could not be connected to Kawa’s assault, abduction and rape.
Kawa is suing the Minister of Police for damages for the emotional and physical trauma she suffered due to the police’s negligence and failures in handling her case. She lodged a civil case against the police minister at the High Court in Gqeberha in November 2013, asking for R5.8-million in damages. She argued that police failed to conduct a reasonable search for her and to conduct a reasonably effective investigation to hold her perpetrators accountable.
The court ruled in 2018 in favour of Kawa, finding that SAPS did not conduct a reasonably effective search to rescue her, or a reasonably effective investigation into the crimes committed against her. The court ordered that the police were liable for 40% of the damages claim.
Police Minister Bheki Cele successfully appealed this ruling at the Supreme Court of Appeal (SCA) in 2020. The SCA found that police had not been negligent when conducting the search and investigation because the officers had used all available resources.
Kawa then took the matter to the Constitutional Court.
On 5 April 2022, the Constitutional Court set aside the SCA’s ruling and held that SAPS had been negligent when investigating Kawa’s case.
Kawa has now been told that her civil case will be heard in the Gqeberha High Court on 19 February next year.
“For 13 years, I’ve been sleeping and waking up thinking about this case,” Kawa said. “I have no livelihood. I was a breadwinner, a mother and a role model. All of those have been impacted… My family wants this matter over. The prolonged wait is contributing to the depression that we are all suffering from.”
“The Constitutional Court judgment was supposed to be my justice but this justice has taken almost two years. Justice delayed is justice denied,” said Kawa.
Since her ordeal she has not returned to her work in mining as she battles post-traumatic stress disorder, she said.
Kawa said her struggle for justice had highlighted how victims of gender-based violence are further victimised by the justice system. “You’re raped by your perpetrator, then by police, and then by the legal system.”
According to the Office of the Chief Justice (OCJ), in civil matters court dates are allocated on a “first come first served” basis.
“Should a party require a preferential date, such party is at liberty to approach the Judge President or Deputy Judge President. No such request was received in this matter. In this matter, the Defendant’s Amended Plea was filed on 13 September 2023,” the OCJ said.
The OCJ said the parties could also request that the dispute be settled out of court. “If so, the case may be allocated to a judge sitting in a settlement court for it to be finalised without a protracted hearing.”
Kawa’s legal representatives declined to comment.