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[2016] ZAWCHC 170
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Bridgman NO v Witzenberg Municipality and Others (701/2012) [2016] ZAWCHC 170; [2017] 1 All SA 466 (WCC); 2017 (3) SA 435 (WCC) (17 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 701/2012
In
the matter between:
MURRAY
JOHN MARTYN BRIDGMAN
N.O.
Plaintiff
and
WITZENBERG
MUNICIPALITY
Defendant
JACK
JACOBUS NICHOLAAS LOUW
First
Third Party
ELSABé
CORNELIA
ELIZABETH LOUW Second
Third Party
Coram:
: Donen AJ
Judgment
by:
: Donen AJ
For
the Plaintiff:
: John Whitehead SC
Assisted
by:
: Sascha e Cámara
Instructed
by
:
Joubert Van Vuuren
Inc
For
the Defendant
:
A S de Villiers
Assisted
by:
L Wade
Instructed
by
:
Gerrie Steyl
Attorneys
Date(s)
of Hearing
:
17, 18, 22, 23, 24, 25 and 29 February 2016;
2
and 3 March 2016; 6 and 7 June 2016
Judgment
delivered on :
17 November 2016
JUDGMENT
DONEN AJ
[1.]
Human
dignity, the achievement of equality, the advancement of human rights
and freedoms, and non-sexism are values that found the
Republic of
South Africa as a democratic state.
[1]
Nevertheless, sexual and gender based violence, particularly rape, is
endemic within South Africa. This undermines
each of the
founding values above. It enfeebles “
defensible
civilisation
”,
as well as our democratic enterprise. It has its origins in and
remains a legacy of the domination and patriarchy
that characterised
slavery, colonialism and apartheid. It has not been attenuated
by the legal transition to democracy.
Rape culture,
incorporating culture of masculinity, male entitlement and immunity
from the consequences of gender based violence,
permeates South
African society.
[2.]
It
is the duty of the state, as well as the courts, to address the
conditions that enable and continue to underlie this violence,
and to
prevent its repetition.
[2]
This
duty arises from the constitutional obligation upon the state to
respect, protect, promote, and fulfil the rights in
the Bill of
Rights
[3]
; from the binding
nature of the Bill on the legislature, executive, judiciary and all
organs of state
[4]
; and from the
duty upon courts to promote the spirit, purport and objects of the
Bill when developing the common law.
[5]
The Constitutional Court has held that the Constitution and
international law oblige the state to prevent gender based
discrimination
and to protect the dignity, freedom, and security of
women
[6]
. Such
constitutional obligations do not only fall on the South African
Police Service. They must be respected and fulfilled
by all
organs of state.
[7]
[3.]
The
same may be said about sexual abuse of women with mental disability.
That problem is an international phenomenon.
The United Nations
Convention on the Rights of Persons with Disabilities (“the
Disability Convention”) obliges states
to protect the dignity,
as well as the physical and mental integrity of every person with
mental impairment on an equal basis with
others. In recognition
of this obligation, Chapter 4 of the Criminal Law (Sexual Offences
and Related Matters) Amendment
Act, Act 32 of 2007,
[8]
criminalises sexual exploitation and grooming of persons with mental
disability and imposes heavy prison sentences.
[4.]
During
the late afternoon of 20 January 2009, Ms L, a young woman aged
18 who suffered from a mild mental disability, was
raped on the
premises of Pine Forest Holiday Resort, Ceres, Western Cape.
The resort was owned, managed and controlled by
the Witzenberg
Municipality. A municipality is an organ of state within the
local sphere of government
[9]
.
As such it is bound to respect, protect, promote and fulfil the
aforementioned rights in the Bill of Rights. The Municipality
failed to protect Ms L from being raped. The wrongfulness of
this omission is tested by reference to the legal convictions
of the
community, which by necessity are underpinned and informed by the
norms and values of our society embodied in the
Constitution.
[10]
Because of
its constitutional duties, and because it owned, managed and
controlled the resort in the circumstances described further
below,
the failure on the part of the Municipality to prevent the rape was
unlawful.
[11]
[5.]
The
plaintiff has sued the Municipality for damages in his capacity as
the
curator
ad litem
of
Ms L. The issue that remains is whether the rape was caused by
the lack of ordinary care and diligence on the part of the
Municipality and its servants acting in the course and scope of their
employment. The Municipality denies being liable for
negligence. It further denies that any negligence on its part
caused or contributed causally to the injury suffered by Ms
L.
THE
ALTERNATIVE PLEA
[6.]
The
Municipality pleads in the alternative that if negligence on its part
did exist, the rape was caused partly through its own
negligence and
partly through the negligence of Ms L’s adoptive parents and
guardians (Mr and Mrs Louw). Accordingly
they were joined as
third parties by the Municipality pursuant to section 2(2)(b) of the
Apportionment of Damages Act, 34 of 1956.
It is alleged that
they were “
acutely
aware that Ms L was intellectually impaired, vulnerable to
exploitation and not possessed with the necessary skills, judgment
and defence mechanisms to be left without supervision and to play
independently in the environment which may be harmful to her;
and knew or should have known that Ms L was emotionally vulnerable
and socially inept.
”
[7.]
The
Municipality pleads further that Ms L’s adoptive parents
breached a duty of care in that they failed to properly supervise
Ms
L while she was playing alone in the resort; they failed to
exercise reasonable care and/or take adequate steps to prevent
harm
to her when they could and/or should have done so; they failed
adequately to monitor her movements at all relevant times
prior to,
during and subsequent to the rape; they allowed Ms L to stray
from their control and/or area of supervision whilst
being acutely
aware of her mental disability and consequential vulnerability and/or
exploitability; and they failed to avoid
the rape when by the
exercise of reasonable care and measures they could and should have
done so. In the circumstances the
Municipality contends that Ms
L’s adoptive parents are jointly and severally liable with the
Municipality to the plaintiff.
[12]
[8.]
The
fact that Ms L may have been vulnerable to exploitation, lacking in
social skills, judgment and defence mechanisms, as well
as
emotionally vulnerable and socially inept, are not grounds which
allow the Court to limit her rights and freedoms as a woman.
Both
as a woman and a disabled person Ms L enjoyed entrenched rights to
her dignity and security, control over her body, her freedom
of
movement, and equality before law. She may not be discriminated
against on the basis of her gender, sex and disability.
[13]
A duty rests upon the Court to afford Ms L, both as a woman and a
disabled person, the full and equal enjoyment of all her
rights and
freedoms under the Constitution.
[14]
Insofar as the alternative plea seeks to rely on the fact that Ms L
is a disabled woman, the placing of any limitations on
her freedom
(which is implicit in the alternative plea) is anathema to the
Constitution.
[9.]
Ms
L’s right to dignity is not only of special importance, but it
is to be exercised independently of her parents.
[15]
Although this right is a cornerstone of our Constitution it is not
easily defined.
[16]
The
impairment of her dignity would turn differentiation into
discrimination.
[17]
There is also a strong correlation between her right to dignity and
individual freedom.
[18]
Both as a woman and a disabled person she is entitled to her
independence.
[10.]
When
interpreting the rights of Ms L the Court must consider international
law.
[19]
South Africa
has signed and ratified the Disability Convention. It was
adopted by the U.N. General Assembly on 13 December
2006.
It came into force on 3 May 2008. One hundred and fifty six
states have ratified and acceded to the Convention
[20]
,
and eighty six states have ratified the Optional Protocol.
[21]
Only four African states have not signed the Convention.
In December 2012 a vote in the United States Senate fell six
votes
short of the two thirds majority required for ratification.
Apart from this particular lack of support the Convention
remains one
of the most critically supported human rights instruments in
history. One hundred and sixty states signed upon
its opening
in 2007. The rights protected by the Disability Convention have
normative value and provide evidence establishing
the existence of a
rule adopted by state practice in accordance with the views of states
opinion
iuris
.
[22]
It would therefore appear that, according to international custom as
evidence of a general practice accepted as law by all
states,
[23]
the Disability Convention forms part of international customary law.
As such it is law in South Africa,
[24]
although it has not been enacted into South African legislation.
[11.]
The
Convention evinces the existence of customary rules intended to
ensure the full and equal enjoyment of all human rights and
fundamental freedoms (contained in other UN Conventions such as the
International Covenant on Civil and Political Rights) by persons
with
disabilities;
[25]
and
in particular the rights against discrimination on the basis of
disability,
[26]
equality
before the law,
[27]
as
well as the right to live independently
.
[28]
This accords with the equality provisions contained in sections 9(1)
and 9(2) of the Constitution.
[12.]
To
attribute delictual liability to Ms L’s adoptive parents (“as
wrongdoers”) because they allowed her to exercise
independence,
freedom of movement and control over her body, would conflict with
the aforementioned constitutional principles.
The grounds
advanced in the alternative plea for limiting the rights and freedoms
of Mrs Ms L are pithy. The evidence presented
to the Court does
not support the Municipality at all. Negligence on the part of
her parents was not established. The
rights of Ms L may be
limited only in terms of the limitation clause contained in the
Constitution.
[29]
There would
have to be a legitimate reason for limiting her freedom to exercise
her fundamental rights in the particular circumstances
of the case
due to the stage of her development and in order to protect her.
This determination must be made when deciding
whether the particular
limitation is reasonable and justifiable in our constitutional
democracy
.
[30]
[13.]
The
only relevant consideration in this case is whether Ms L was
possessed of capacity to deny consent to sexual intercourse to
the
perpetrators. In my view this is a separate question to whether
she had the capacity to consent to intercourse.
According to
the report of a psychologist, Jeanine Hundermark (which was admitted
by agreement), Ms L was legally unable to consent
to intercourse
because of her level of intellectual disability and her level of
understanding of sexual intercourse. The
question of whether
she could appropriately express her lack of consent, however, was
resolved by unchallenged evidence described
further below.
[14.]
The
material element of rape,
[31]
as defined in common law and the Sexual Offences Amendment Act, is
lack of consent by the victim. Mere submission is not consent.
[32]
As Ms L had the capacity to convey such absence of consent to the
perpetrators any limits on her freedom of movement and
control over
her own body cannot be justified. If consent to sexual
intercourse did not exist and the perpetrator knew of
the lack of
consent criminal liability would arise.
[33]
On the facts before this court Ms L neither consented to sexual
intercourse nor led the perpetrators to think that she had done
so.
It is clear that she was abducted against her will and then sexually
assaulted.
[15.]
Mrs
Louw had been advised by Ms L’s special needs teacher that it
was important for her to become independent. As a
result the
Louws were working full-time on doing so. On the day that Ms L
was raped they had made a decision that she would
do something on her
own. The evidence of a psychologist, Dr Dickman
[34]
establishes that this was an appropriate decision having regard to Ms
L’s development. She in fact asked to do so.
In the
circumstances Mr and Mrs Louw allowed Ms L to exercise her
aforementioned rights and freedoms and to develop by playing
alone at
the play park. Their decision to encourage her development was
taken on expert advice. The play park was located
in a resort
that was fenced, apparently subject to access control and secured by
guards who were required to patrol it and regularly
patrolled the
play area where Ms L was abducted. Mrs Louw testified that
because of Ms L’s disabilities her parents
had set boundaries
for her that she would listen to and obey. This evidence was
not disputed in cross-examination.
Certain evidence of Dr
Dickman who had consulted with Ms L, to the effect that she had been
taught by her parents that no one other
than her family should touch
her body in an intimate way, was also not challenged. To this
Mrs Louw added that Ms L would
never hug a stranger because she had
issues about touching. This evidence too was not challenged.
[16.]
The
circumstantial evidence given by Mrs Louw gave rise to the inferences
that Ms L was abducted from the playground where she was
playing on a
trampoline; and that force was used to move her from there up some
stairs and then down to the privacy of a squash
court, where she was
violently sexually assaulted by two young males. Her pants and
panties were left blood stained.
Her blood spread onto the
floor of the squash court. Her blood was found on the
underpants of one of the perpetrators.
As a result of the rape
Ms L required surgery to her vagina. A stitch had to be
inserted under general anaesthetic.
When the rape had been
interrupted by the arrival of Ms L’s mother Ms L was screaming
“
Stop!
”.
She was terrified and crying. Nothing in the circumstances
hints at consent on the part of Ms L. Neither
action nor words
on Ms L’s part could have given the impression of consent.
Indeed it was put to Mrs Louw under cross-examination
at the trial of
the perpetrators by one of their legal representatives that Ms L had
withheld consent, and had therefore been raped.
[17.]
It
is common cause that the two perpetrators, a 15 year old and a 14
year old (duly assisted by a legal representative and their
parents)
pleaded guilty to raping Ms L. The presiding magistrate was
then vested with a discretion in terms of section 112
of the Criminal
Procedure Act. He was required by the Act; firstly, to question
the accused with reference to the alleged
facts of the case in order
to ascertain whether they had admitted the allegations in the charge
to which they had pleaded guilty;
and secondly, to satisfy
himself that the accused were guilty. The section was designed
to protect an accused from the consequences
of an unjustified plea of
guilty. Accordingly, a duty rested on the magistrate to apply
the section with care and circumspection,
bearing in mind the
principles above. Had the accused’s responses to the
questioning suggested a possible defence,
or left room for a
reasonable explanation other than the accuseds’ guilt, a plea
of not guilty would have had to be entered.
[35]
Nevertheless the perpetrators were duly convicted. No evidence
was placed before this court to suggest that the magistrate
failed to
carry out his duty; or that the convictions were wrong; or that they
had been disputed in an appeal, or that the process
was queried on
review.
[18.]
The
Municipality did not call either of the perpetrators as a witness
although its legal representatives consulted with one of them.
Nor did it call any other witness to suggest that consent or belief
in such consent existed at the time of the sexual assault.
Nor
did the account of her rape, that Ms L, was eventually able to give
to her mother, exclude the inferences based on the circumstantial
evidence before the court; namely, that Ms L did not consent to
sexual intercourse and that the perpetrators of her rape never
entertained such a belief. To hold that any friendliness which
Ms L may have shown towards the perpetrators could lead to
an
opposite conclusion would minimise the responsibility of the
perpetrators. It would trivialise Ms L’s fundamental rights
and
freedoms as well as the barbarism that was perpetrated upon her.
Such a finding would amount to rape culture. It has
no part in a
state founded on non-sexism and the advance of human rights and
freedoms.
[19.]
The
decision of Ms L’s parents to allow her to play in the park
alone was reasonable and justified. The evidence of
Mrs Louw
established that a reasonable person in their position would not have
foreseen that Ms L could suffer rape at the playpark
where she was
allowed to play. Nor would a
bonus
paterfamilias
have taken any more measures to monitor Ms L than the Louws did,
given the security measures that they had seen in place at the
resort. A problem arose because these measures were withdrawn.
The evidence shows that her parents did supervise Ms
L, and
appropriately so.
[36]
The Municipality’s plea in the alternative must therefore fail.
INSPECTION
IN LOCO
[20.]
The
squash court where the rape occurred lies on an east-west axis.
It is adjacent to a recreation hall on its western side,
from which
it is separated by two doors on the ground floor. On the
southern side of the squash court there is an outside
staircase
leading up to a first floor entrance. It is made of metal and
its treads are fairly widely spaced. At the
time of an
inspection, on 16 February 2016, there was a wooden door at the top
of the stair case which opened outwards and could
be locked from the
outside. Upon entering the top floor of the squash court area
the squash courts situated at the lower
level can be viewed from
above. A viewing area is separated by a railing from the two
courts below. An internal staircase
opposite the top floor
entrance door leads down to the lower floor from where the two squash
courts can be entered each by its
own door. The rape occurred
on the court on the southern side. The play park lies to the
west of the recreation hall
a few meters away. There are
trampolines in the area. A portion of a putt-putt course
separates the trampolines from
the hall. A pool area lies to
the east of the recreation hall a few meters away. A chalet
where the Louws and Ms L
stayed lies about 66 meters to the south of
the play area and was visible from there.
MRS
LOUW’S EVIDENCE OF THE RAPE AND ITS CONSEQUENCES
[21.]
Plaintiff
was put to the proof of showing that Ms L was raped. She did
not testify. (The probable reasons are contained
in the report
of Ms Hundermark.) It was therefore incumbent on Mrs Louw to
establish the rape in her testimony. She
provided the necessary
circumstantial evidence to discharge this onus. A hearsay
statement about her rape by Ms L was
admitted but not for its
testimonial value. The reasons are dealt with below.
[22.]
The
aim Ms Hundermark’s assessment was to evaluate Ms L ’s
level of intellectual functioning, her ability to consent
to sexual
intercourse, as well as her competence to act as a witness in the
criminal proceedings against three youths who had been
charged with
raping her. The assessment was made on 19 October 2010 in
relation to criminal proceedings. Ms Hundermark
stated that Ms
L did not have words to describe her experience. She had
a good understanding of truth, falsehood and
perjury. She had
the potential to be a competent witness in court; but Ms Hundermark
emphasised that she should not
be subjected to secondary
traumatisation that a court appearance would illicit. She
stated that Ms L “
is
a fragile little girl who has had to endure a great deal in her short
life. She is able to function within her protected
and loving
environment. (Ms L ) should not be called on to testify.
She would not be able to speak about the alleged
rape and the
experience would be too traumatising for her
.”
[23.]
In
her testimony Mrs Louw confirmed certain content of the report of an
occupational therapist, Annetjie van Niekerk, which had
been admitted
by the Municipality, more particularly regarding the first years of
the life of Ms L. Mrs Louw amplified the
content of the
report. Ms L suffered from a very serious case of sensory
neglect. Because she had never been touched
in the hospital,
where she spent her early years, and had always lain only on her
back, had never been turned on her stomach, and
had never touched
anything, she became – and remained – acutely sensitive
to touch. Mrs Louw explained that because
Ms L never carried
any weight on her feet or on her knees, she had never learnt to crawl
like a normal baby. She had developed
this condition of
sensitivity to touch.
[24.]
Mr
and Mrs Louw had previously visited the resort in 1974.
Thereafter they visited on about fourteen or fifteen occasions
until
1990. They then visited in 2008; and again in 2009
together with Ms L, their daughter, Karin, and her daughter.
They arrived on 16 January 2009 and stayed in chalet G27. During
their visit in 2008 and on the days before she was raped
Ms L played
at the park many times. Her parents or Karin were always
present. On 20 January 2009 Mr Louw, Ms L,
Karin and Emily
visited the swimming pool. When Ms L returned she asked to go
and play at the park on her own.
[25.]
In
Sofia she was allowed to play outside with the neighbourhood
children. She played football with them and was a good player.
There were many parks in Sofia and she would play in them on her
own. Mrs Louw had been advised by Ms Wattel, who had been
working on the development of Ms L, that the most important thing for
a child like her was to become independent. She could
not
always remain an appendage of her parents or some other person.
The Louw’s had therefore started full time therapy
aimed at
making Ms L independent.
[26.]
Mrs
Louw main concern at Ms L’s request was that she could fall off
the tractor in the play park. This was off limits
for her.
Ms L knew this. Mrs Louw believed that she would behave accordingly.
The other concern which Mrs Louw had
was that Ms L might be injured
in “
rough
and tumble
”.
She therefore checked to see how many children were playing at then
park. She saw nobody. She told Ms
L that it was fine to
go and play and that the adults would keep an eye on her. Mr
and Mrs Louw were preparing food in the
house. They would go
outside to check Ms L.
[27.]
When
Karin returned from the swimming pool a little later she asked Mrs
Louw where Ms L was. Mrs Louw booked towards the park.
She could neither see Ms L from inside nor outside the chalet, nor
with binoculars. She, Karin and Emily then walked over
the
bridge to the park. They called Ms L and looked all around.
Mrs Louw saw that Ms L’s shoes were lying next
to a backpack in
the vicinity of the trampoline. That concerned Mrs Louw
enormously. She knew that Ms L would never
go anywhere without
her shoes, especially if the terrain was not flat. She could
walk on grass. However, because of
her sensory deprivation, Ms
L would never go anywhere without wearing shoes. Mrs Louw
became frightened and feared that Ms
L might have been raped.
She then walked in the direction of the swimming pool. As she
passed the squash court she
saw a boy running down the stairs outside
the building. He ran in her direction. When he saw her he
turned and ran
back quickly up the stairs. He shut the wooden
door at the top of the stairs.
[28.]
Mrs
Louw found this behaviour curious. She walked to the foot of
the stairs. When she got there she heard Ms L’s
voice
pleading “
Please!
Please stop! Don’t try again.
”
She was crying. She was clearly terrified. Mrs Louw could
hear the fear in her voice. She ran up
the stairs. She
heard footsteps running on the wooden floor below towards the hall
which adjoined the squash court.
As she was descending towards
the squash court Mrs Louw saw Ms L coming out. She was pulling
up her pants and her panties.
She just said “
Its
very bad! Its very bad!
”
When she saw Mrs Louw she walked towards her. Ms L was crying
and said “
They
hurt me
.
!
”
The first thing that Ms L asked was “
Where
are my shoes?
”
Mrs Louw had to fetch them from the trampoline in order for Ms L
to walk. By that stage the rucksack had
gone. When they
walked away Ms L said “
Goodbye
friends! Never come back! Never come back!
”
She then used the Bulgarian word meaning “
Goodnight
!”
Mrs Louw explained that to Ms L these words meant “
Go
to sleep
”.
Ms L did not want to speak and was visibly in shock. She did
not want Mrs Louw to touch her at all. This
was extra-ordinary
behaviour on her part. All of this had happened between 16h00
and 17h00.
[29.]
Mrs
Louw took Ms L back to the chalet. Ms L would not let her
mother examine the place on her body where she was hurt.
She
still did not want Mrs Louw to touch her. She was lying on the
bed. Mrs Louw noticed that there was blood on the
bed.
She asked Ms L if she could come and lie down next to her and cry
with her. Ms L agreed. They lay down and
cried together.
After that Ms L allowed Mrs Louw to take off her pants. She saw
a lot of blood. She concluded
that Ms L had been raped.
[30.]
Mrs
Louw also testified that after the incident the Louws had looked
around the resort grounds for help. There was nobody
around.
Therefore they had taken Ms L to the resort office. They wanted
to take her to the hospital immediately.
They were told that
she first had to go to the police station to report the rape.
They did so. There were many people
there and a delay
occurred. Before they could go to the hospital they had to be
given a rape kit at the police station.
Then they went to the
hospital. They had to wait outside. After 20h00 Ms L was
examined at Out-Patients by Dr Buckle.
His report noted Ms L’s
blood stained pants and panties. He did not note what Mrs Louw
had observed at the hospital;
namely, visible abrasions on Ms L’s
lower legs and shoulders. These are visible in a photograph
which was taken two
days later.
[31.]
During
the further examination of Mrs Louw counsel for the Municipality
admitted the chain of events that led to certain forensic
and DNA
analysis. This included an admission, relating to the DNA of a
15 year old youth (Mr P), whose DNA was proved to
have been found in
Ms L’s vulva. It was also admitted that Ms L’s
blood was found on the underpants of the 13
year old male (Mr O), as
well as on the squash court floor where it was photographed.
These admissions established conclusively
that Ms L was raped by Mr P
(as a perpetrator) and Mr O (as either a co-perpetrator or
accomplice). Rape had been in issue
at the trial up to this
point.
[32.]
When
the Louw’s and Ms L returned to their chalet from the hospital
a man and a woman visited. They appeared to be security
guards. They made certain reports to the Louws. The woman
reported that “
this
was not the first time that something like this happened.
”
This statement is admitted in the interests of justice. The
Municipality elected to put up no direct evidence
by any of its
officials who would have had personal knowledge of criminal activity
at the resort. Relevant documentation
that must have been in
its possession allegedly disappeared and was not made available to
plaintiff. A document that was
discovered by the Municipality
indicated that an assault had occurred at the resort before Ms L was
raped. This statement
was not challenged when it was put up by
plaintiff’s expert for purposes of drawing that inference.
It is common cause
that any previous incident of violent crime was
relevant to determine the security measures required at the resort
when Ms L
was raped.
[33.]
Ms
Louw had asked Mrs Theron to come to the resort and help, because Ms
L knew her well, felt comfortable with her, and because
there were a
lot of things that the Louws had to attend to because of the rape.
Mrs Louw confirmed that whilst Mrs Theron
was there a delegation from
the Municipality arrived. It included the Mayor. He was
very apologetic. He not only
said that he was sorry that the
rape had happened, but admitted “
that
he knew that there were problems with the security in the resort.
”
[37]
Mrs Theron had then
challenged the Mayor by asking him what kind of boys or young men
there were in Ceres that were doing such things.
He replied
that he wanted to set up a programme to teach the children proper
ways. The first-mentioned utterance by the Mayor
amounted to an
extra-curial admission. The fact that it was made does not
depend on the credibility of the Mayor, but on
the credibility of Mrs
Louw (and Mrs Theron). The content of the admission was
hearsay. However, documents discovered
by the Municipality and
introduced as evidence by plaintiff’s expert witness
demonstrated that the “problems”
to which he referred had
been drawn to the Mayor’s attention. Whether there were
in fact problems with security in
the resort is an issue to be
decided with the benefit of the expert evidence below.
[34.]
When
Mrs Louw was asked whether security guards were ever in the vicinity
of the squash courts and the play park before the rape
she replied
that she had seen them. They were usually there in the
morning. There were two security guards in the play
area.
They were also at the swimming pool. The Louws were conscious
of the fact that security guards were patrolling
the resort
“
continuously
”.
There had also been security guards during 2008.
[35.]
Mrs
Louw confirmed that, on 3 February 2009, two weeks after the rape,
the Louws contacted Dr Schneider, a gynaecologist in Somerset
West,
about complaints that Ms L was making about vaginal pain and
discomfort. She could not walk. It was painful when
she
sat. Mrs Louw observed that she was still bleeding. When
they visited Dr Schneider he could not carry out a gynaecological
examination on Ms L. She did not want him to touch her.
She was crying. She did not want her clothes to be removed.
Eventually she had to be placed under anaesthetic. Dr Schneider
found three small tears in her vagina. Two of them
had begun to
heal. The largest had continued to bleed. A stitch was
inserted in order to help the healing.
[36.]
After
the rape Ms L had said to her mother that “
the
boys crossed me
.”
Mrs Louw thought Ms L meant that they made her angry. However,
around Easter 2013, Ms L told Mrs Louw that
she did not want to go to
heaven. When Mrs Louw asked her why she replied that she did
not want to be crossed again.
Mrs Louw asked her what happened
when she was crossed, Ms L replied “
then
we die like Jesus was crossed.
”
Mrs Louw then realised that when Ms L said she had been crossed, she
meant crucified. When Mrs Louw asked her
she said: “
Yes,
because there were nails put into my body and my hands were held like
that and my legs were stretched.
”
[37.]
This
statement is admitted in the interests of justice. The
undisputed expert evidence is that Ms L did not have the capacity
to
appreciate the nature of the sexual act perpetrated upon her.
Her perception of the experience is crucial in assessing
her pain and
suffering as well as the necessary therapy required to heal her
psychological damage. In the absence of any
challenge to
whether the statements were actually made, they should be admitted
for purposes of assessing the quantum of plaintiff’s
claim, as
opposed to its merits. No weight is given to the statements in
deciding the merits.
[38.]
Ms
L had been unable to give a statement to the police about what had
happened. Eventually, after they returned to Sofia at
the end
of March 2009, and over a period of a few days, she did tell Mrs Louw
what had happened. It took a long time because
she would become
very upset when she tried to relate the events. Before Mrs Louw
could repeat what she had been told, counsel
for the Municipality
reserved its rights in relation to this hearsay. He did not
object to the evidence being given.
Plaintiff’s counsel
stated that the evidence was to be presented “
for
another reason
”.
By this stage of the trial there was no longer any dispute about
whether Ms L had been raped. Allowing her
report of how the
rape occurred could not prejudice the Municipality. Had the
report contradicted the inference I have drawn
above from all the
other proved facts, then those facts would not have excluded every
reasonable inference save for the one drawn
from them.
[38]
This would have been of advantage to the Municipality.
Furthermore, as Ms L could not testify, her report to Mrs Louw
would
be of assistance in establishing how Ms L perceived her experience.
This was necessary to determine any potential damages.
The
report is therefore admitted in the interests of justice.
[39.]
Ms
L reported that while she was on the trampoline in the park, friends
came. (Mrs Louw pointed out that at the time Ms L
called
everyone “friends”.) One of them was on the swings
and others jumped with her a few times on the trampoline.
Then
they took her by the arms and pulled her from the trampoline.
She struggled to get away from them and said “
No!
I don’t want to go with you!
”.
She said one of the boys then walked behind her and held her hands
behind her back with one hand. With the
other he shut her
mouth. They moved her towards the squash court and up the
stairs on the outside. She fell a few times
on the stairs on
the way up, and then down on the other side. They put her down
on the floor in the squash court. One
boy held her mouth and
two hands. The other boy spread her legs. He pushed
something into her “
that
felt like nails
”.
It was very very painful. When he was finished he closed her
mouth and held her hands. The other boy
got onto her.
While he was busy a third boy called to the other two from the stairs
saying “
Don’t
try again! Run!
”
They ran. Then Mrs Louw arrived.
[40.]
The
inferences that this report might have rebutted were the probability
that Ms L was removed from the play area against her will
(without
her shoes); and that force causing bruises was used on her arms; and
that her legs were injured during the abduction.
With reference
to the events described by Ms L, Mrs Louw was asked about the
significance of her shoes lying next to the trampoline.
She
emphasised that because of Ms L’s sensory deprivation she could
not walk without her shoes. As a result one of
the first things
she said after the rape was “
Where
are my shoes?
”.
When asked whether Ms L would willingly have walked from trampoline
to the stairs without her shoes, Mrs Louw replied:
“
No!
She was definitely forced, because she wouldn’t do that
willingly.
”
Mrs Louw had concluded that Ms L had obtained the bruises on her shin
when she fell on the stairs; and on her shoulder
during the
struggle. There is nothing in Ms L’s report or any other
evidence before the Court to exclude the inferences
drawn by Mrs Louw
from the facts. On the probabilities Ms L was forcibly abducted
and raped.
[41.]
Mrs
Louw also testified as to how Ms L had changed when she got back to
Bulgaria. She was a different girl. She was
afraid of
teenage boys. She did not want to leave the apartment.
She only felt safe in her own room. When she
became stressed
she would not speak the way she had before she was raped. She
spoke in a baby language. She would press
her clenched fingers
against her cheeks, tap them and then chatter. She suffered
from nightmares. When the Louws had
to work outside of the
City, Ms L would go with them and sleep in their room. She
would wake up about three times in the
night screaming. When
Mrs Louw woke her and asked what the problem was she replied that
these hands wanted to hurt her.
Ms L only felt comfortable with
the toddlers (3 – 6 year olds) at the orphanages they visited.
She was apprehensive
about boys above that age. Though
previously she loved to play football with bigger boys she suddenly
did not want to play
at all. She stopped playing outside the
house. She did not want to go and play in the park. The
Louws were unable
to go on with the home education programme that had
been provided for Ms L because of her lack of concentration.
She
had previously been interested in photography. She deleted
photos of the swimming pool and the play park from her collection,
but she kept pictures from the chalet.
[42.]
Ms
L’s home education programme continued after 2009. Mrs
Louw also contacted a speech therapist in South Africa who
suggested
that they work on her vocabulary in both English and Afrikaans, using
her sight and words. Mrs Louw explained how
many volunteers
from all over the world had come to Bulgaria to help the Louws with
their projects in orphanages and summer camps.
Many of them
were qualified teachers and therapists. They stayed with the
Louws. They had helped with Ms L. A
British occupational
therapist who had worked with children with disability had helped Ms
L. By the time of the trial Ms
L had a tablet. She was
using it to do home school programmes from the American Christian
School. This included mathematics,
reading and science.
Ms L enjoyed these. She also did arts and crafts. She
continued her interest in photography
and did well at it. She
knew how to take good moment pictures; how to download them on
computer; and to decide which
were good and which were not good.
She also assisted as a Sunday school teacher for young children.
She helped the
teacher with everything that was needed. This
had been going on for approximately three years.
[43.]
By
the time of the trial Ms L was doing much better. She could go
to a shop on her own. She was starting to make her
own meals.
She was becoming independent. She was also much better in the
company of boys. Her sleep patterns
were better and her
nightmares were inconsistent. She was doing well at her home
education programme and showed interest.
If she was stressed
she became quiet. However, she was only 80% of her previous
self. She was still very careful about
people. She was
not as she had been. This might have been attributable to the
fact that she was older. However,
there were some areas where
she had lost her spontaneity.
[44.]
After
the rape Mrs Louw was depressed. She stated that she had
“
rescued
this child from hell and then something like this happened to her.
How was it possible that this would happen to her.?
Mrs Louw had problems with sleep and concentration. She was on
medication. Eventually it got better. At
the time of her
testimony she was no longer on medication.
[45.]
Mrs
Louw also testified about two further statements that are hearsay.
They are admitted for the reasons further below.
The male
security guard who visited their chalet told the Louws that two of
the boys involved in the rape had legal tickets but
a third did not.
He had apparently entered the resort with somebody else’s
ticket. A day or two after that a
senior clerk at the resort,
Ralda du Plessis, told the Louws that she had typed the numbers of
three tickets into the computer
and that two of the boys had legal
tickets giving them access to the resort, but the third one (Mr P)
used somebody else’s
tickets. The ticket was not in his
name. He did not have a ticket. Once again counsel for
the Municipality pointed
to the fact that this evidence was hearsay
and reserved his rights.
[46.]
Prior
to the trial plaintiff had requested copies of tickets used by the
three youths to gain access to the resort. In a Rule
35(3)
affidavit the Municipal Manager, Mr David Nasson, alleged that it did
not have them. All it possessed were the applications
for
season tickets for the “
plaaslike
seuns
”
en “
persone
”.
Plaintiff was then informed that the Municipality was not certain who
the holder of the season ticket used by Mr
P was. When
plaintiff’s attorney informed Mrs Du Plessis, on 19 December
2011, of Plaintiff’s information to
the effect that Mr P did
not have an access card she replied that, if she remembered
correctly, Mr P had used another child’s
ticket to gain
access. Defendant’s expert witness, Mr Kasaval, had never
seen any tickets. He admitted that the
Municipality might not
have done everything that they ought to have done on the day in
regard to the access of the three youths.
In the light of these
admissions by its own witness the Municipality would suffer no
prejudice from the admission of the hearsay
evidence.
[47.]
The
cross-examination of Mrs Louw in no way attenuated the facts and
circumstances from which the inferences have been drawn above.
Counsel for the Municipality introduced an occurrence report, which
Ms Du Plessis had produced on 20 January 2009, referring to
the
incident. She had recorded that investigation by the police had
established that the local youths involved in the event
had all been
in possession of lawful access cards. The report also recorded
(next to the portion indicated as details of
the event) that the
event occurred while all personnel were at a compulsory session in
the City Hall. The event was reported
to Ms Du Plessis at about
17h00. The police had been called. Inspector Mostert
conducted the investigation. The
Municipality’s
responsible official was Mr A Bosman (the resort manager).
[48.]
Mrs
Louw testified under cross-examination that many changes had happened
at the resort since she had first been there. She
believed that
there was a designated area for visitors. This included the
braai areas. She was not sure about the play
park. She
was aware that there were no signs prohibiting visitors from visiting
the playpark. However, she added that
when she had received day
visitors, they had needed a special permit and would have had to ask
before the time when they could
visit. She admitted that people
from Ceres could use the facilities at the resort if they bought
tickets. This included
the swimming pool, the squash courts and
the playground equipment. There was also a big hall where
youngsters could play
and use the facilities. Counsel then
introduced the general information and rules of the resort.
These recorded that
the use of the swimming pool, playpark for
children and squash and entertainment programme were free during
December holidays.
Use of the trampoline involved an extra
cost. The document also recorded that day visitors could only
be admitted by prior
appointment. Day visitors were not allowed
access to the living units. Mrs Louw confirmed that the family had
spent a weekend
at the resort before the rape. She had seen
more people in the area where the chalets were during the weekend
than after
it. She had also seen children in the playpark who
were staying in the chalets.
[49.]
Counsel
then introduced a letter written directed by Ceres Alarms to the
Witzenberg Herald, dated 20 January 2009, and relating
to security at
the resort. The letter was a response to an article that had
appeared in the newspaper regarding the rape.
The letter
recorded that a Ceres Alarms team provided a security service at the
resort every day. It was undermanned for
purposes of
effectively securing the whole property. There were always two
officials on duty. One had to man the guard’s
post and
the other had to patrol the property which was somewhat large.
Ceres Alarms could not carry out their function effectively
if there
was not sufficient manpower to do the work. They did everything
in their ability to keep the property safe.
Their personnel
were trained to impose security. They did regular patrols by
vehicle during December. They put extra
personnel on the
property.
[50.]
Mrs
Louw confirmed that the Municipal Manager had accompanied the Mayor
on his visit. They were sympathetic. Furthermore
two of
the perpetrators’ mothers had visited the Louws. They did
not really sympathise. They asked Mrs Louw what
had happened.
They wanted detail. She told them that they should ask their
sons. They replied that they had been
told that they were not
supposed to speak to them. A policemen then told the mothers
that they should visit the Louws again.
Counsel then put to Mrs
Louw that his instructions were that they had come to sympathise and
apologise. Mrs Louw was emphatic
that all they said was that
they needed to speak to her and wanted to know what had happened.
Mrs Louw confirmed that two
of the boys had written letters of
apology on the instruction of the Magistrate. However, they had
not apologised for what
they had done during the hearing. There
they had laughed at Ms L and the Louws.
[51.]
It
was pointed out to Mrs Louw that her daughter Karin had stated in an
affidavit that prior to the rape she had noticed three youths
at the
swimming pool staring at her and her daughter and Ms L in the water.
Mr Louw had made a statement that he too had
observed the youths.
It was put to Mrs Louw that the security guards also saw the youths
there. She replied that her
husband had not seen the youths as
a threat. Mrs Louw had not see them at all as she was not
at the pool. Nor
did she know anything about them.
[52.]
Counsel
then put certain content of the report of Ms Hundermark, namely:
“
On
interview, (Ms L) was a small, neatly dressed, short haired little
girl wearing spectacles and walked with a slight limp.
She
looked about 12 years old. She easily engaged with people
and was highly sensitive to everything going on around
her, to the
point of being overly distractible. She appeared generally
happy and smiled a great deal. However it is
extremely
important to note that she displayed all the behaviour patterns of a
child who has been ‘insecurely attached’
in childhood.
Such children have not developed the necessary discernment and are
either highly suspicious and uncomfortable with
people, or are overly
trusting and friendly, as in (Ms L’s) case.
”
[53.]
Mrs
Louw admitted that she knew all of this. She also knew that Ms
L treated everybody as her “friends”.
Even after
she was raped she had called the perpetrators friends; but only
because she did not have the capacity to use any
other word.
Mrs Louw, however, disagreed with counsel’s proposition that
she should have kept better watch over Ms
L because the park was open
to the public. She and Mr Louw had been watching Ms L from
outside the chalet. At one stage
Mrs Louw had gone to the bank
of the river just to call to Ms L and to speak to her. They had
done the best they could to
supervise. However, they had made a
decision that she should do something on her own. She was 18
years old and she
did need to learn to be independent. On the
basis of the content of the report made by Ms L it was put to Mrs
Louw that a
long time had passed between her last check on Ms L and
realisation that she was no longer at the park. Mrs Louw
answered
that it was several minutes.
[54.]
Ms
L’s recovery was then addressed in cross-examination. Mrs
Louw confirmed that Mrs Theron had helped to console her
after the
event. The Louws had then stayed in the resort for another five
days because Ms L felt safe in the chalet.
They then returned
to Somerset West. Mrs Theron organised a destressing massage
for Ms L and Mrs Louw. After that Ms
L had attended Ms Wattel
for play therapy. They then went to a camp at Volmoed.
From there they went to Pretoria, and
then back to Bulgaria.
The Louw’s had a friend in Pretoria who was a therapist and had
spent a lot of time with Ms
L. So too did Mrs Louw’s
daughter in law who was a teacher of small children. All of
this was directed at treating
Ms L for the ordeal she had suffered.
[55.]
During
this cross-examination counsel for the Municipality conceded that all
the parties were
ad
idem
that
the rape had set Ms L back approximately a year. Mrs Louw
stated that by the year 2011 Ms L had made progress.
However,
she was only her old self when she was in a safe environment.
She had issues with another environment. Counsel
conceded that
the Municipaliy’s expert witness, the psychologist Mr Larry
Loebenstein, agreed with her. What Mrs Louw
described were
residual symptoms of post-traumatic stress disorder (“PTSD”)
that had to be addressed.
[56.]
Mrs
Louw confirmed that the therapists who visited the Louws in Bulgaria
and attended to Ms L were qualified. There was a
physiotherapist and an occupational therapist, as well as a speech
therapist. Nevertheless at the time of Mrs Louw’s
testimony, Ms L was not as spontaneous as she had been. She was
still very careful. She was very much aware of possible
danger
although she lived in a very safe country where there is no street
crime, murders and rapes. She felt particularly
unsafe in South
Africa. She remembered the incident. The whole family had
not recovered. This was not disputed
in cross-examination.
[57.]
Under
re-examination Counsel for the plaintiff referred Mrs Louw to the
examination by the legal representative of the youths at
their
trial. Mrs Louw had been asked with reference to Ms L:
“
As
sy nou saam speel, speel saam op die trampoline en daar is maar hier
en daar ‘n woord wat gewissel word, sou u dink ‘n
kind
soos beskuldigde 2, hy was op daai stadium 13 jaar oud, sal dadelik
geweet, of moes geweet het dat hierdie meisietjie is besonders
anders
as ander meisies?
”
Mrs
Louw had replied in the affirmative. She added that it was very
obvious from the way that Ms L walked that there was something
different about her. Mrs Louw also confirmed the views she had
expressed at the trial, namely that Ms L would not have given
one of
the boys a hug at their request. Ms L had problems with “
touch
issues
”. At the time she would not have given hugs to
people she did not know.
[58.]
Mrs
Louw furthermore confirmed that the photographs taken two days after
Ms L was raped still showed the blue marks on her legs.
Mrs Louw explained that her daughter was afraid of going up
stairs. She would not have done that voluntarily.
She
would also not have left the park. Mrs Louw inferred that Ms L
fell on the steps because was forced up them. Because
she had a
disability Ms L had been given boundaries without which she could not
live. When she was told that she could not
go on the tractor,
or go out of the park, she would not do so. Mrs Louw knew
that. Finally, Mrs Louw emphasised
that Ms L would always
remember the rape. She would not recover from the incident.
[59.]
Under
examination by the Court, Mrs Louw said that Ms L had played in the
park with her parents or with Karin almost every day.
The day
that she was raped was the first time that she had played alone.
Previously she had played at different times. Karin
or Mr or Mrs Louw
were always present. Mrs Louw was aware that there were
security personnel who worked at the park.
She usually saw them
in the afternoon. They would sit on the bench at the
playground. There were usually two of them.
She saw them
on more than one occasion. They would remain sitting there.
She presumed that they moved off when Ms L
and her parents were no
longer there. They sat on a bench in or near the park facing
the trampolines. They could see
the whole park. Prior to
20 January other children had been playing at the park as well.
On the day on which the rape
occurred Mrs Louw had seen two
guards patrolling. They had walked past the chalet.
Sometimes Mrs Louw saw the
cleaning personnel sitting near the park
during their breaks.
[60.]
Under
further cross-examination Mrs Louw said that the Louws had not
been informed that all the people who worked in the resort
would be
going to the municipal offices for a meeting on the afternoon of the
rape. She confirmed she had seen two guards
patrolling on the
morning of the rape, a man and a lady. She could not confirm
how long the guards would sit at the park.
Sometimes they were
there in the afternoon, and sometimes in the morning. Under
further re-examination Mrs Louw stated that
Ms L did not have to buy
a ticket to play in the park. Nor did Mrs Louw see anyone
buying tickets.
MS
L’s PERCEPTION OF HER EXPERIENCE
[61.]
Elmarie
Jansen van Vuuren has been a registered social worker for the past 23
years. During 1993 she was appointed as the
director of the
Cheré Botha Centre, Downs Syndrome Association. As such
she was involved in an early intervention
programme with children up
to the age of 7 years old. She also trained the staff.
From the year 2000 she was registered
as a private practitioner.
She received training in play therapy (Gestalt therapy) at the
University of Pretoria in January
2015. She consulted with Ms L
for the first time on 12 March 2009. She drafted a play therapy
report after a referral
by Ms Wattel. This consultation
occurred about six weeks after Ms L was raped. At that stage it
was very difficult
for Ms L to verbalise her experience. This
was because of her disability in cognitive functioning. The
only way to
measure the degree of trauma she had suffered was to use
the process that Ms Janse van Vuuren usually employed with young
children.
[62.]
She
saw Ms L on four occasions. On the first occasion she
asked Ms L to make a drawing of herself. Ms L portrayed
herself
with a sad face. It was impossible for her to elaborate on why
she was sad or had depicted herself as such.
Ms Jansen van
Vuuren had to determine whether Ms L understood what the emotions of
happiness, sadness, anger and fear were.
These very abstract
concepts for a child with limited cognitive capacity. Therefore
Ms Jansen van Vuuren drew faces with
the different emotions and
allowed Ms L to choose colours for each. She chose red for
happy, orange for sad,
green for rage, and blue for
fear. They then proceeded with the gingerbread man technique.
Ms L was requested
to indicate on the gingerbread man, in the colours
that she chose, how much of each emotion was in her own body.
She indicated
her head area as being sad. Her chest and arms
were happy. Her lower body was fearful. Her feet were
angry.
It was difficult for Ms L to explain what caused each
emotion.
[63.]
Ms
Jansen van Vuuren also employed the house in the tree technique.
This allows young children with limited understanding,
who sometimes
struggle to identify the emotions within them, to concretise their
feelings, Ms L managed this. She was able
to say that the house
was angry, the cloud was sad, the sun was happy and the tree was
frightened. She was able to say she
felt happy like the sun
whenever she was with her mother, her father and Ms Wattel, and also
when it was her birthday. She
was frightened and sad whenever
she thought about Ceres. She did not elaborate.
[64.]
Ms
Jansen van Vuuren then employed the monster technique, which had been
used for many years in play therapy. Because Ms L
could not
draw properly (because her pencil grip was very weak), Ms Jansen van
Vuuren drew on Ms L’s instruction. Nevertheless,
Ms L did
draw a lower body consisting of only one big leg. At first Ms L did
not want Ms Jansen van Vuuren to draw hands on the
monster.
Later Ms L asked her to do so. When this happened Ms L said “
He
had big hands, oh so big hands
.”
Ms L appeared to be seriously tense when she spoke about this.
She folded her hands into each other and held
them in front of her
mouth. She began to make rocking movements and groaning
noises. At that stage she was sitting
upright and rocking her
upper body backwards and forwards. This went on for a while.
[65.]
Ms
L coloured in the monster’s shirt in red (happy) and trousers
in blue (fear). She then said to Ms Janse van Vuuren
“
He
pulled off his trousers and he pulled off my trousers and my panties
and he hurt me so much here.
”
Ms L then indicated the place between her legs with her hands.
She then showed Ms Jansen van Vuuren the movements
that the monster
made. These were “
humping
”
movements. She kept repeating the words “
He
hurt me so much, He hurt me so much.
”
Part of the prescribed monster technique is to make the monster out
of clay and to allow the child an opportunity
to show how she feels.
Ms L refused to touch the monster’s hands. At that stage
she began to press the monster
flat with her hands. She
destroyed all of it except the hands. Ms L then asked Ms Jansen
van Vuuren to break the monster’s
hands. She carried out
this request and placed the remains in the dish which she covered
with a lid (so that they could not
come out again.)
[66.]
Ms
Jansen van Vuuren concluded that Ms L had experienced events as
severely traumatic. Young children, whose cognitive functioning
was at Ms L’s level, found it very difficult to verbalise their
feelings. Although they could not do so it did not
mean that
the feelings were not present. Mrs Jansen van Vuuren’s
report had been used as an exhibit in the criminal
rape case.
It was not intended to constitute a formal assessment. She had
prepared it after Ms Wattel had observed
that Ms L was severely
traumatised and had asked Ms Jansen van Vuuren to help her to share
those feelings. The object of
the contact sessions was not to
assess Ms L.
[67.]
Under
cross-examination Ms Jansen van Vuuren stated that she had a very
clear recollection of her consultations with Ms L because
the
situation was unique and it affected her deeply. She confirmed
that Ms L’s functioning was the same as that
of a young
child. It was not Ms Janse van Vuuren’s role to assess
her level of functioning. Ms Wattel had given
a very clear
indication of Ms L’s level; that is, between 6 and 8 year old.
In the Gestalt approach rather than looking
for information about Ms
L’s past, one examined what was in her foreground, “
her
here and now
”.
No conversation with Ms L had occurred.
[68.]
Ms
Jansen van Vuuren found that Ms L was in a position to distinguish
and identify the happy and the sad faces after it was explained
to
her what each of the faces was. In regard to the self-drawing
Ms Jansen van Vuuren confirmed that she had drawn the outline
of the
face, which Ms L had then coloured in. Ms Jansen van Vuuren had
first built up some confidence in Ms L by showing
her the different
pictures of happy, sad and angry faces. Ms L was then asked
which of these she felt. She then told
Ms Jansen van Vuuren
which face to draw. Ms Jansen van Vuuren stated that she was
surprised that Ms L was able to respond
appropriately when she was
asked how much happiness there was in her body, how much fear,
heartache and anger. When Ms Jansen
van Vuuren was
cross-examined on the statement in her report that it was difficult
for Ms L to express herself about the events,
she explained that this
related to the connected facts such as where Ms L was when it
happened, what the time was, and what she
was wearing. Because
she was aware of Ms L’s level of functioning, Ms Jansen van
Vuuren avoided such questions, or
asking what had happened in the
resort. Instead she tried to build up a relationship of trust
by discussing everyday things
that were within Ms L’s
framework. From this Ms Jansen van Vuuren concluded that it was
generally hard for Ms L to
put the events into words.
[69.]
From
her professional experience with young children it was easy for Ms
Jansen van Vuuren to establish that Ms L would not give
her certain
information. The information gleaned was limited to that given
by Ms L during the play therapy. The focus
was on information
that was in the foreground of her mind. Because Ms L was
already traumatised and Ms Janse van Vuuren did
not want to
traumatise her further she did not directly ask Ms L about the rape.
Ms Jansen van Vuuren usually dealt with
children shortly after they
had suffered trauma. She was providing treatment. Play
therapy did not require much verbalisation.
Play and drawing
were a much easier and more natural language for Ms L to speak.
The focus was on getting Ms L to speak through
drawings and stories.
Ms Jansen van Vuuren did what she could in the time that was
available. She was very surprised
that she managed to get Ms L
to express her feelings in this short time. There was no
cross-examination on the statements
that Ms L had made or her
reaction to the clay figure.
THE
QUESTION OF NEGLIGENCE
[70.]
The
Municipality elected not to put up any witnesses in their employ who
had personal knowledge of security arrangements and failures
at the
resort. Instead it relied on the evidence of a security
expert. In the circumstances the evidential material
upon which
the court must rely to determine the question of negligence is
discovered documentation mainly introduced by plaintiff’s
expert witness or by counsel for the Municipality in
cross-examination. The parties agreed that these documents were
what
they purported to be. I accept the expertise of both
witnesses. However, the subject on which they testify is
largely
one in which the court is able to draw its own conclusions
without relying on the expert’s opinions.
[71.]
Wouter
Kuun testified on behalf of the plaintiff. He inspected the
resort on 11 February 2016. He testified as to how
the security
industry operates and what basic considerations are relevant to the
provision of security services. He presented
certain general
security principles that should have been applied at the resort.
One of these is the need for dominance of
the terrain and the
creation of a secure perception. Mr Kuun regarded this as
essential in any environment requiring security
measures. This
involves creating an environment where an opportunist or deliberate
criminal would be inclined to go and look
for opportunities outside
the environment in front of him. That is, if the criminal
thought Pine Forest to be a hard target
he would move on to easier
prey. The desired outcome is that the users of the resort
should feel free to carry on with their
business. The
management of the entity should play a role in accommodating this.
Security personnel would have to show
vigilance, presence and
involvement in maintaining rules, regulations and technical
specifications made by the Municipality.
[72.]
Mr
Kuun emphasised that the provision of a security service needs to be
a partnership between a customer and the service provider.
Cooperation is necessary because security can never be outsourced in
full. Mr Kuun emphasised the importance of a positive
partnership between a security service provider and the employer.
A breakdown in such relationship would often result in
poor security
performance. From the documentation before the court it appears
that a proper relationship in terms of contract
and contractual
specifications and duties was never established between the
Municipality and Ceres Alarms. From there the
relationship
became worse.
[73.]
At
the outset a security risk assessment should be done. For a
resort such as Pine Forest the focus would be on perimeter
and
protection, access and egress, and activities that take place within
the perimeter, such as the residential component, swimming
pool,
squash court, activity hall and conference hall. The dominant
security considerations are access control and terrain
security.
The Municipality do not appear to have had a security risk assessment
before they hired Ceres alarms.
This would have involved
a careful consideration of the security infrastructure, and threats
that the Municipality was exposed
to as well as its vulnerability.
Mr Kuun emphasised that site procedures were also an essential
component of any security
service, yet the Municipality could not
provide them.
[74.]
Mr
Kuun drew attention to the Municipality’s relevant technical
specifications for the provision of security services in the
Witzenberg Municipal area as contained in their security service
contract and bid numbered 8/2/5/31. These specifications
required service delivery
inter
alia
,
a closed circuit camera monitoring the entrance and exit gate at the
resort; access control; patrolling in the resort, patrolling
at
the swimming pool and crowd control; and access at the main
office. The following personnel were required from 1
December
to 31 January and during the summer school holidays, namely;
two guards per shift at the gate, and two patrolling
the resort
including the swimming pool. Access would include control of
the entrance and exit, communication with visitors,
enforcement of rules and regulations at the entrance gate,
frisking and disarming, and compiling an incident logbook.
Patrolling required the guards to be fully conversant with rules and
regulations; to conduct at least hourly patrols of the
resort
with a view to the prevention of irregularities; the immediate
response to and control of any infraction of the rules;
communications with visitors with a view to prevention rather than
reaction; compiling an appropriate incident logbook;
daily terrain patrols at the swimming pool between 09h00 and 11h00
during the swimming season; patrols of periphery as well
as
along the fence; monitoring of swimming pool use in terms of
specific swimming regulations and times; crowd control and
continuous
monitoring of the general situation; and noting of all
incidents. It is apparent from these specifications
that the
Municipality had accepted a duty to secure the resort.
[75.]
Putting
the standard of care of a reasonable person no higher than their own
specifications for security services the Municipality
would have
required four security guards to be on duty at the time of the rape,
two of them patrolling the resort including the
swimming pool (at
least on an hourly basis with a view to preventing irregularities and
continuous monitoring of the general situation)
as well as the
compiling of an appropriate incident logbook. There is no
suggestion in the evidence before the Court that
such patrol or any
patrol took place during the period 16h00 to 17h00 on the afternoon
that Ms L was raped. At the time the
resort staff, save for a
cashier, were at the town hall. The security guards were
neither seen by Mrs Louw nor could they
be found by the Louws after
the rape. Further evidence presented by Mr Kuun established
that in fact the Municipality hired
the security service it employed
on the day of the rape without a tender. They had meant to
employ security in terms of a
tender and specificaitons but had
overlooked to do so. The Municipality’s own standards
were not required in terms
of the makeshift contract that did apply
at that time. The logbook required by the specifications is
lacking for the day
of the rape. Mr Kuun confirmed that
compiling an appropriate incident logbook is a standard practice in
the industry.
[76.]
Mr
Kuun drew attention to the affidavit of the Municipal Manager in
reply to plaintiff’s Rule 35(3) request. The Municipality
could not provide a security risk assessment of the resort as
requested by plaintiff; nor the contract or letter of
appointment
for the security services that were to be provided by
Ceres Alarms at the resort on 20 January 2009; nor a service
level
agreement between the Municipality and Ceres Alarms; nor
any security risk survey conducted by Ceres Alarms and presented
to
the Municipality; nor assessments by the Municipality of the security
services provided by Ceres Alarm at the resort from the
inception of
the contract to 20 January 2009. Such documents could
apparently not be found.
[77.]
The
Municipal Manager confirmed that Ceres Alarms were appointed by the
Municipality as follows. During 2007 the Municipality
launched
tender proceedings for the appointment of a security firm at the
resort. A number of companies tendered including
lliswe
Security and Ceres Alarms. The latter was unsuccessful.
The tender was awarded to Iliswe Security. At
the end of 2007,
as a result of numerous issues with this firm, their contract was
terminated with immediate effect. The
Municipality then
requested quotations from alternative security companies in order to
fill the void. Ceres Alarms provided
a quote and were appointed
on the basis of the quotation alone. The Municipal Manager also
referred to a memorandum directed
to the acting Municipal Manager on
30 January 2008 which stated that the urgency of the situation made
it impossible for the Municipality
to make any appointment in terms
of the formal process. Ceres Alarms were the cheapest and were
appointed from 13 December
2007 until 31 January 2008. It
was hoped that a proper (tender) award would be made by the end of
April 2008.
[78.]
The
quotation by Ceres Alarm’s quotation directed to Mr Andre
Bosman, the manager of the resort, provided for four day shift
security officials from Monday to Sunday and four nightshift security
officials at R36 600,00 per month excluding VAT.
The quote
stated that the price included security personnel selected,
recruited, appointed and trained according to the standard
of SIRA,
and who then obtained on-site training. The tasks carried out
by them included the handling of visitors, access
control, patrols
and proper conduct during emergencies. The security officials
would be properly equipped,
inter
alia
,
with handcuffs, batons, pepper spray and two way radio contact with
the control room. Hourly patrols, enforcement of rules
and
regulations, and the compiling of an incident logbook were not
required in terms of the quote as they would have been by tender
specification.
[79.]
Even
though the Municipality advertised another tender in 2008, no
security firm was appointed as a result. Ceres Alarms remained
in employment up until March 2009 when their appointment was
terminated as from May 2009. Mr Nasson went on to say that it
was only after receiving additional documentation from Ceres Alarms
that he became aware of the fact that they had not been appointed
in
terms of a tender procedure, but rather on the basis of their
quotation. Therefore previously he had incorrectly made
reference to documents indicating what he had presumed indicated the
duties of the security company. Those documents were included
in a
tender that needed to be submitted by the party applying for an
appointment. However, as Ceres had not tendered, the
specifications would not have been applicable to their appointment.
He went on to say that no service level agreement was
ever concluded
with Ceres Alarms. If one was concluded it was neither in the
possession of the Municipality nor Ceres Alarms.
[80.]
Mr
Kuun then drew attention to another document attached and referred to
in Mr Nasson’s affidavit. It was directed to
the
Municipality’s Community Services on 12 May 2008 (about
seven months before the rape). It dealt with defective
security
at public resorts. It suggested that securing property in Pine
Forest and Kliprivier Park had to receive priority
because of the
negative publicity surrounding the events. The lack of safety
was no longer a rumour. It was supported
by fact.
Accordingly the resort manager asked for official notice to be taken
that the situation was out of control as a
result of certain factors,
namely; a sub-standard security fence surrounding the property that
was easily cut; defective security
patrols (as a result of
under-manning due to lack of funds); and lack of follow-up by SAPS,
as well as the security contractor.
As support for these
conclusions it was recorded that more than 20 break-ins had occurred
in the previous month. The author
called for an urgent
gathering of the role players, including the Mayor, Municipal
Management, SAPS, the Pine Forest Home Owner’s
Association and
the security contractor. No evidence has been presented to the
Court to show that these concerns were ever
addressed by the
Municipality. This would have required the necessary
cooperation and partnership between the client and
its security
contractor that Mr Kuun described in his evidence.
[81.]
In
a memorandum directed to the Mayor by the resort manager on 22 May
2008 it was pointed out that besides 20 housebreakings
in the
previous two months, in the immediately preceding two weeks six
caravans and two chalets had also been broken into.
Visitors
were in the chalets at the time of the break-ins. It was
recorded that the situation had to be regarded as very
urgent.
The only solution was to make sufficient funds available to secure
the surrounding fence and entrance, as well as
deploying sufficient
manpower to keep the situation under control. Again no evidence
was presented by the Municipality to
show that they responded to this
warning. Mr Kuun expressed the view that the R36 000,00
per month paid to Ceres Alarms
was not enough to provide for four day
security officers and four night security officers (as set out in the
specification), together
with operational support and profit.
[82.]
Mr
Kuun then introduced a copy of the minutes of a meeting of the
Community Development Committee on 26 June 2008 (seven months
before
the rape). It recorded that Councillor Adams, with reference to
the negative reports about the security situation
inside the resort,
had requested that the Manager of Resorts report to the committee.
His report had indicated that good
results had been achieved around
the security situation at Dennebos. Police had made certain
arrests and it was hoped that
this would be a permanent solution.
However, the report of the Municipal Manager was never produced.
[83.]
On
9 September 2008 the resort manager wrote to Ceres Alarms complaining
that the security guards at the two resorts were not performing
in
terms of the regulations and access conditions. Mr Kuun
introduced the monthly report of the Municipality’s Committee
for Community Development, dated 18 October 2008. It described
another problematic situation for the Municipality, namely
a shortage
of chlorine gas. The remedy it followed was to close the
swimming pool to ensure safety. Extending that
to the bigger
picture – where the Municipality were not securing the resort
and were putting people at risk – the answer,
according to Mr
Kuun, was that the resort should have been closed. This report
also stated that a letter had been directed
to the security company
in relation to their poor patrolling. A request was made for
the Acting Municipal Manager to investigate
and file a detailed
report by the Committee’s next meeting.
[84.]
Mr
Kuun made further reference to the Municipality’s reply to the
Plaintiff’s Rule 35(3) request. After plaintiff
had asked
for a job description of the security personnel on duty at the resort
on 20 January 2009, the answer was that their
duties included
patrolling the entry to the resort and patrolling the grounds of the
resort, including the swimming pool.
It was admitted that these
duties were more specifically indicated in the document known as
“
Pligte
van Sekuriteit: Dennebos Vakansieoord
.”
This provided,
inter
alia
,
that all pedestrians entering the resort had to be in possession of a
valid season ticket or “knipkaart”.
[85.]
Mr
Kuun then referred to an e-mail from Mr Bosman, to Mr Mzwandile
Jacobs, a week after Ms L was raped. It was copied to
Mr Nasson. It recorded,
inter
alia
,
that due to alcohol abuse there had been uncontrolled behaviour
at the swimming pool, total disregard for rules and other
people’s
safety and that at least five serious incidents had occurred.
There had been incidents of vandalism.
The trampoline mats had
been cut, recreation hall equipment damaged, and its walls and
ceiling defaced (burnt). Fences had
been broken. Theft
from the caravans and permanent dwellings had occurred. Two cases of
assault had been reported.
The sexual assault of Ms L was the
last and most horrific incident. It was suggested that there
should be more control of
the numbers, behaviour, and even
restrictions on the use of facilities and movement within the
resort. A competent security
section was needed on site.
It was expressly recorded that “
through
the past eighteen months it has been realised that a private company
cannot deliver the service needed for control of various
facets of a
local, public resort.
[39]
[86.]
In
answer to a Rule 35(3) request the Municipality was unable to provide
any documentation relating to the five serious incidents
and assault
referred to by the resort manager. Mr Kuun expressed the
opinion that this indicated a failure of data management,
necessary
in order to review the past and improve the future. Mr Kuun
explained that manpower and technology have to work
together through
a proper process, procedures and policies in order to achieve secure
management. No answer to this was presented
to the Court by the
Municipality.
[87.]
At
least three security officers should have been on duty at the
entrance of the resort during peak season according to Mr Kuun.
A total compliment of six was necessary. In fact according to
an affidavit deposed to by Mr Nasson on behalf of the Municipality
(in a Rule 21(4) application), during a consultation held by
its legal representatives with a security guard (Mr Geldenhuys)
who
worked the day shift on 20 January 2009 (working access control and
patrolling) there had only been two security guards on
duty.
Sometime previously, when he began to work for Ceres Alarms, there
had been six. This was reduced to five and
eventually to two.
All six were employees of Ceres Alarms. Mr Geldenhuys did
not know why the numbers had been
reduced. This statement by Mr
Geldenhuys accords with the opinion of Mr Kuun as to the number of
guards required to secure
the resort. It also indicates that by
the day of the rape Ceres Alarms had ceased to provide the number of
security guards
they had quoted for.
[88.]
In
the circumstances it would appear that six security guards per shift
were the desirable number necessary at the resort.
The
Municipality accepted a standard of four in its specifications.
Only two were on duty of the day Ms L was raped.
They could not
be found on the terrain after the rape. The affidavit of Mr
Geldenhuys suggested that there were no patrols
at all between 15h00
and 17h00 on that day. The Municipality therefore did not
provide for dominance of the terrain as required
for reasonable
provision of security according to their own specifications.
[89.]
In
amplification of the question of terrain dominance, activity control
and presence of security on the resort, Mr Kuun said that
for one
person to conduct the security patrol of the resort would be quite a
lengthy time process if done properly. There
is no record of
any patrol monitoring or patrol management at the time of the rape.
Nor was there an incident logbook.
Properly managed a patrol
logbook describing the patrols that took place on the afternoon that
Ms L was raped should have been
available from the Municipality.
This would have been relied on for purposes of filing a report in the
incident logbook.
[90.]
Regarding
the staff meeting held at the time Ms L was raped, and the absence of
all personnel from the resort, save for the cashier
and two security
guards, Ms Kuun stated that the resort should have requested an
additional security officer or two to be placed
at the resort at the
time. Sufficient notice of the meeting to be held should have
been given to affected persons such as
the Louws. The resort
should have been closed to day visitors at a reasonable time prior to
the departure of all the staff
at the resort. It is apparent
from this evidence that the Municipality abandoned the protection
that it was duty bound to
provide on the afternoon that Ms L was
raped.
[91.]
On
3 February 2009 Leon Scholtz of Ceres Alarms wrote to Mr Nasson
assuring the latter that their events books were 98% accurate.
Between March and May 2008 there were approximately 19 break-in per
month on the resort. In July there were three.
In August
three. In September three. In October, one. In
November, two (for the first of these three youths were
caught; and
for the second, two persons were apprehended.) During December
2008, a dwelling was broken into for the second
time that year.
In dealing with solutions from a security view point Mr Scholtz
stated that at the time there were two guards
per shift. (This
included the day Ms L was raped.) Ceres Alarms had since then
financed another guard and the Municipality
had budgeted for
another. In other words on 3 February 2009 some two weeks
after Ms L was raped four guards per shift
were being proposed.
On that basis Mr Scholtz guaranteed better results in the
future. Furthermore, Mr Scholtz
noted that Ceres Alarms
were using armed response personnel to work out of the resort.
This cost the Municipality nothing.
The visibility of the
vehicles were of great help. Ceres Alarms also promised that if
they obtained a long term contract
they would install cameras which
would physically observe housebreakers. Cameras would be
financed by Ceres Alarms at a cost
of R80 000,00. Ceres
Alarms could then put in place the infrastructure to secure the
resort. They needed one extra
guard per shift and a long term
contract in order to lay out the capital to put the infrastructure in
place. Mr Scholtz would
personally manage security at the
resort and positive results would be achieved.
[92.]
It
follows from all of this that security at the resort on the day of
the rape was felt to be inadequate because the Municipality
had
failed to conclude a proper contractual relationship. A
contract was being proposed in accordance with the Municipality’s
usual specifications. It has never been suggested by the
Municipality that the aforementioned proposal by Ceres Alarms was
beyond the means of the Municipality in terms of a proper contract.
In fact the correspondence indicated that the resort
was making an
annual profit of R700 000,00. The content of Mr Scholtz’s
letter was indicative of the security
shortfall at the resort when Ms
L was raped there two weeks earlier. Mr Kuun expressed the view
that if the resort was being
patrolled by only one officer on that
day it was totally insufficient. It allowed opportunistic crime
to occur. When
the swimming pool supervisor went to the meeting
at the Municipality at 16h00, area dominance of the pool area was
lost.
This would have facilitated opportunity for crime.
The absence of municipal staff in the whole resort, whether there had
been a rape or a fire or a heart attack, amounted to a lack of
preparedness to deal with an incident in their absence.
[93.]
Mr
Kuun then listed the further history of criticisms of Ceres Alarms by
the Municipality. On 1 September 2008 Mr Bosman had
written to
Ceres Alarms complaining that security guards in the two resorts were
not enforcing the Municipality’s regulations
and access
requirements. On another occasion Mr Bosman had complained that
two dwellings in the Pine Forest caravan park
had again been broken
into while security personnel were on the property. Mr Bosman
concluded that the performance of the
security services was below
average and a sharp improvement of service delivery was necessary,
particularly in light of the approaching
holiday season.
Similarly, three weeks after the rape, Ms Du Plessis had written to
Mr Jacobs emphasising that Ceres
Alarms exercised no access
control. People came and went without permits or proof of right
of access. On 24 February
2009 Ms Du Plessis again wrote to Mr
Jacobs and Mr Nasson emphasising the defective deliveyr of a
security service.
She stated that there was no direct
communication between the office and security; and there was
weak to no access control.
Security was often confined to a
“hokkie” with no persons on patrol. Patrolling of
the resort was defective.
This had repeatedly been taken up
with Ceres Alarms, but to no effect. Visitors were admitted
without paying. Access
permits were not controlled.
Guests moved in and out of the resort without access tickets.
Mr Kuun could find
no indication that Ms Bosman’s
complaints had ever been attended to by the Municipality. Mr
Kuun also noted that there
was no mention of risk management in any
of the minutes of the Municipality’s committee meetings.
[94.]
All
of the above must be considered in the light of general rules of the
Municipality which Ceres Alarms were never contracted to
enforce.
These provided that a limited number of day visitors were allowed and
were restricted to the allocated area.
Mr Kuun emphasised that
the rules were not applied at all. People walked around
wherever they wished to go in the resort.
No rules were
enforced on day visitors. In Mr Kuun’s experience squash
courts in resorts and sports clubs are locked
and access is
controlled. In his view open squash courts are a favourable
place for mischief to occur.
[95.]
Mr
Kuun referred to the Municipality’s reply to plaintiff’s
enquiry in terms of Rule 37(4)(b). It was stated that
any
person who that had access to the resort would be entitled to make
use of the playground equipment. During peak season
a person
would need a ticket to make use of the trampoline which could be
obtained at the resort’s reception. A person
tasked with
collecting the tickets at each activity would be supervising this
activity. The technical specifications for
the resort stated
that peak season was between 1 December and 31 January and that
it encompassed the summer school holidays.
(It is common cause
that Ms L was raped within these periods.) However, the
Municipality stated that, as the new school term
was due to start on
21 January 2009 (the day after the rape) most of the visitors
had already left and it was therefore no
longer regarded (by the
Municipality) as being peak season. In contrast to the
specifications the peak season was terminated
on Sunday,
18 January 2009. In the Municipality’s reply it
also admitted that Mr P, a primary school pupil
aged 15 years at the
time, had sexual intercourse with Ms L. The Municipality was
not prepared to make any further admissions
in relation to the rape.
The Municipality’s case was that perpetrators Mr P, Mr O and K
were regular visitors to the
resort who were known to the security
personnel. On 20 January 2009 they gained access to the
resort via the main entrance
on production of season tickets.
Mr P gained access using a season ticket, whose holder the
Municipality was uncertain of.
[96.]
From
all of the above Mr Kuun concluded that on the day that Ms L was
raped the number of security guards at the resort was insufficient.
The quality of security service rendered was insufficient,
irrespective of any efforts by Ceres Alarms to increase the number at
its own costs. The Municipality failed to act decisively to
mitigate known risks of crime at the resort prior to the day
of the
rape. Mr Kuun’s view was that there was a long history of
incidents and on the day of the rape the security
function did not
contribute to the prevention of crime.
[97.]
Finally,
Mr Kuun dealt with expert reports of a Mr Kasaval and a Mr Moodley,
the experts relied on by the Municipality.
They had concluded
that Dennebos was a holiday resort and random instances of theft and
disturbances occurred. This comparison
ignored five serious
incidents and assaults reported by Mr Bosman and of which the
Municipality were aware. Mr Kuun
disputed that the
instances of crime were random. The resort had a long history
of break-in and theft (as well as violence).
The Municipality’s
experts also concluded that a high security presence would have
created difficulties with the privacy
of guests. Mr Kuun
replied that having security in a resort requires emphasis being
placed on how security measures
of personnel impact on the tourist
environment. Showing a security presence and dominating an area
was invariably appreciated
by almost all guests. Proper
management and training of competent security officers would
eliminate any difficulty with privacy.
Furthermore, the
Municipality’s experts disagreed with the statement that the
security personnel were incompetent.
They contended that there
was no standard to determine competence. However, the
documentation referred to by Mr Kuun established
unequivocally that
security fell below the standard which the Municipality regarded as
reasonable. Furthermore, there was
a psira (Private Security
Industry Regulatory Authority) course in existence during 2009 which
dealt with security for hotels and
leisure This would refer to
the application of the principles of security management and security
operations identified by
Mr Kuun at the beginning of his
evidence.
[98.]
Cross-examination
of Mr Kuun did not affect the standard principles of reasonable
security referred to by him, nor the statements
made by the
Municipality against its interests that he identified. Mr Kuun
stated that his mandate was to assess the security
services provided
by Ceres Alarms at the resort. He had before him the
documentation referred to in his report and evidence.
He had
visited the resort on two occasions (25 October and 23 November
2011). Each time he visited the resort he had walked
the
perimeter. He went through the access control process and
examined the security measures in place at the time.
The fence
was inadequate to address unauthorised access. The resort was
an easy target for the criminally minded as its users
tended to relax
in that environment. Mr Kuun also familiarised himself with the
terrain where the rape occurred; namely,
the pool environment,
the distance to the recreation hall, the squash court, and the
distance from where the Louws stayed to the
park. He had been
provided with the pleadings. He did not consult with Ceres
Alarms. It was suggested to him
that because he was acting on a
pro
bono
basis
he had a bias in favour of plaintiff. He denied this. He
stated that he was neutral. He admitted that he
could not refer
to a handbook or written work that had prescribed an industry norm.
What he testified to was the best practice
according to the majority
in the professional security industry.
[99.]
The
norm for retaining documentation in the industry was five years.
If there was a potential claim documentation would be
kept until the
matter was disposed of. This applied to occurrence books.
The present matter had been coming up for
a long time. Mr Kuun
would have expected the Municipality to have kept every possible
document in order to secure it for
purposes of the litigation.
He therefore criticised the Municipality because it could not find
the incident logbook for 20 January
2009, or the resort’s
risk plan, site procedures and risks profile, Ceres Alarms’
letter of appointment or a service
level agreement. Mr Kuun
found it curious that an occurrence book did exist for 2009 for the
period shortly after the
incident occurred, as well as communication
prior to the rape. To Mr Kuun’s knowledge the security
services of Ceres
Alarms were terminated due to lack of performance.
[100.]
In
explaining the basic principles relevant to the provision of security
services he had relied upon accredited documentation that
was used by
major companies such as Chubb, ADT, Omega, G4S Group and Falck.
Documentation is accredited by international
standards organisation.
It is also evaluated by the South African Bureau of Standards.
The process also forms part
of courses for a Security Management
Diploma and B.Tech. which is available from UNISA.
[101.]
Mr
Kuun had established that on 20 January the municipal staff were not
at the resort during their working hours. They were
supposed to
work until 19h00. They left earlier for a municipal meeting in
the town. There were few guests at the resort
at that time.
Mr Kuun did not agree with counsel’s proposition that the more
guests there were the more security personnel
were needed on the
premises. During peak season more staff would be needed because
higher access control would be required
as well as supervision of
activities. The staff would play a critical role in the
security environment because they were
all contributors to security.
Besides the rape in question most of the crimes committed in the
resort were break-ins and
theft. There was also an assault.
Mr Kuun stressed that the concern was not the break-ins but that the
break-ins could
become violent. When Mr Kuun was asked for a
reason why the resort had to guard against anything other than the
crimes that
had occurred over previous years he replied that it was
essential to create an environment of control.
[102.]
He
would have secured the perimeter against break-ins. He would
have warned the Municipality, and emphasised the necessity
for
upgrading security. The approach was about being prepared.
The issue was not one of over provision. There
was a lack of
provision in the past that had to be addressed. Security had to
be properly managed and operated with the necessary
tools, including
manpower and technology. The statistics which existed were
important. A security risk assessment for
the resort would not
have been particularly complicated. A dominant common security
consideration for access control and
terrain security existed in the
Municipality’s technical specifications. Ceres Alarms
were not appointed in terms of
these specifications, but as a
stand-by company.
[103.]
Mr
Kuun was criticised under cross-examination for introducing a court
judgment into his report. It was put that he was biased.
It was suggested that he did not draft his own report. He
replied that he wrote the reports himself on computer. He
then
gave it to counsel to paragraph. At the request of counsel for
the Municipality, Mr Kuun provided his previous drafts.
These
was admitted in order to test whether Mr Kuun’s final report
was his own or whether the content was suggested to him.
In
further cross-examination Mr Kuun admitted that counsel had changed
the formatting of the previous document. In his view
the sting
in the first report was lost. Insofar as there may have been
any differences between the reports Mr Kuun attributed
this to
progress and development in creating a final report.
[104.]
Mr
Kuun was examined on the introduction of the chlorine gas issue at
the pool. He replied that he used this as an analogy:
If
the swimming pool could not be provided with chlorine to keep it
healthy then people were not allowed to swim in it; and
if the
resort was not safe – as on 20 January 2009 when the staff
evacuated it – it should not have been open to the
public.
He stated that in saying this both inadequacies may have been based
on lack of financial resources. His knowledge
of the financial
situation was disputed, however. I conclude from this line of
cross-examination that lack of finance was
not a consideration which
inhibited the Municipality in its security arrangements on the day of
the rape.
[105.]
Mr
Kuun was asked what more Ceres Alarms could have done to secure the
resort. He replied that they should have informed the
Municipality that they could not provide security services with two
guards, or in the situation that existed at the relevant times,
unless the Municipality signed a waiver of responsibility, i.e. that
they would not hold Ceres Alarms accountable. Ceres
Alarms
should have informed the Municipality that there were many risks,
that they would provide some guards, but that they could
not provide
a real security solution. In Mr Kuun’s “
world
of security
”
he would have expected no less from Ceres Alarms as a small security
operator. Mr Kuun added that from the documents
he had seen
there were clear indications that the performance of Ceres Alarms was
unsatisfactory. Guards were sleeping and
people were allowed to
act outside protocols and procedures. Mr Kuun’s criticism
was founded on the documentation to
which he testified leading up to
the rape. Mr Kuun expressed the view that Ceres Alarms were
grossly negligent.
[106.]
Mr
Kuun testified that although correspondence by Municipal officials
had made him aware that Ceres Alarms were adding people to
deploy
that was not the full solution. This lay in making sure that
those people were performing according to the desired
outcome.
They had failed in this respect particularly in relation to access
control. It was put to Mr Kuun that a substation
was manned on
the resort during peak season and that a letter in his report, dated
9 December 2008, had referred to the sub-station;
but he did
not mention it in his report. He admitted this was so and that
it was an oversight.
[107.]
Mr
Kuun explained that the intention of his report based on documents
emanating from the Municipality was to highlight all the complaints
that had occurred; and all the referrals to inadequacy in
security. These reflected on the supervision and management
of
the security service being delivered on site. There was a lack
of supervision by the Municipality. It had a duty
to make sure,
whether the number of security guards were adequate or not, that they
were properly supervised by management, and
where necessary
disciplined. The supervision had to come not only from the
security company but also from the Municipality.
According to
Mr Kuun’s report management and supervision involved constant
evaluation of the service provided to steer security
in the right
direction. There was no record of adequate management.
The correspondence shows nothing more than dissatisfaction
by
Municipal officials.
[108.]
Counsel’s
sterile riposte was to refer to events after the rape had occurred eg
Mrs Du Plessis’ letter to Mr Jacobs
on 24 February 2009 and to
Mr Bosman’s letter to Ceres Alarms on 1 September 2008.
Counsel then questioned Mr Kuun
on Mr Nasson’s letter to the
Mayor, Mr Bosman and the Acting Director (Community Services) on
23 May 2008.
This states that at a meeting in the Mayor’s
office on 22 May 2008 it had been concluded that the staff deployed
in terms
of the contract between the Municipality and the security
company was totally inadequate. It was recommended
inter
alia
that the Municipality should go into further talks with the security
company. It noted that only when Mr Nasson had engaged
Ceres
Alarms did he discover that it did not submit a tender. This
would have serious implications on the safety and security
situation
at the resort. There was a “major defect” in the
technical specs of the tender.
[109.]
Counsel
then introduced a letter, dated 30 May 2008, directed by Mr Nasson
to the Senior Public Prosecutor in Ceres in which
he stated
inter
alia
that
security cost the Municipality about R80 000,00 per month.
This did not produce the desired outcome, particularly
because of the
size of Pine Forest. Offenders were aware of the security,
provisions and the set-up there. “
Die
Dennebos wat eens ook bekend was vir sy rustigheid het skielik ‘n
onveilige toeristebestemming geword wat nog meer druk
op die
vakansieoord plaas.
”
[110.]
The
letter shows that by May 2008 Municipality was aware that Ceres
Alarms were not tied in to a contract that bound them to comply
with
the Municipality’s tender specifications. The
Municipality was aware that this was necessary for proper security
to
be provided at the resort. Mr Kuun considered that the
lack of a tender (and contract) would leave the actual security
service and its scope in a state of uncertainty.
[111.]
The
minutes of a meeting of Committee for Community Development, dated
28 June 2008, refer to the fact that the resort had
a profit of
R700 000,00. Financial limitation should therefore not
have stood in the way of the Municipality rectifying
the security
situation at least seven months before Ms L was raped.
[112.]
Counsel
then referred to an incident report by Ms Du Plessis on 20 January
2009, and the report of Mr Bosman to Mr Jacobs
and copied to
Mr Nasson on 27 January 2009 “
five
serious incidents
”
and “
two
assaults
”.
It was suggested to Mr Kuun that in the light of these documents that
there was no need for the Municipality or Ceres
Alarms to cater for
an extra-ordinary threat. His answer was that the purpose of
security was to mitigate threats that exist.
While one could
not predict that a woman of 18 was going to be raped in the squash
court, if the security effort had been better
it would have been far
less likely to occur. If there are break-in, particularly if
occupiers are in a house or chalet, there
is a dramatic potential for
assault. If there had been a proper security plan and execution
the general threats would have
been eliminated. There was a
causal connection between circumstances and security measures and
eventual incidents.
If a proper environment was not created the
risk increased. Had there been a proper security environment
there would have
been less risk overall.
[113.]
Mr
Kuun conceded that the housebreakings statistics given by Ceres
Alarms to Mr Nasson for 2008 referred to occurences that were
not in
the immediate vicinity of the playpark, the dam and pool.
However, the location of the five serious incidents that
had been
referred to by the resort manager were never identified by the
Municipality. Nor were the two cases of assault referred
to.
Mr Kuun found it curious that the Municipality seemed to have records
for trees falling over during 2008 but no reports
about the serious
incidents.
[114.]
Mr
Kuun emphasised that more guards, who were competent and did their
work properly, would obviously have contributed to better
security.
The risk of Ms L being raped would have been significantly reduced if
there had been two more security guards on
duty creating a safe and
secure environment. Significant change would have been made if
there had been two guards at the
gate, two patrolling and one to
relieve them. It was then put that because of the size of the
resort each patrol would have
taken a number of hours. However,
this conflicted with the content of the Municipality’s
specifications referred to
above. Mr Kuun conceded that each
patrol would have taken a minimum of an hour. Mr Kuun
said, however, that if
he had been in control of four security guards
and it had become quiet the senior guard would have remained at the
gate and the
second one would have been instructed to withdrew and
focus on the pool, the recreation area and non-compliance with the
rules.
That would have been particularly so on the day of the
rape because there was no other staff. He would have directed
the
guards to dominate the last-mentioned area and would have
utilised the other two on patrols for the rest. Opportunity was
created because there was a lack of dominance in the security system.
[115.]
When
asked what the chances were of the security guard being present at
the trampoline and squash court when Ms L and the youths
were there,
Mr Kuun replied that these were definitely areas where he would have
utilised his tools. The pool and play area
were prominent
functional areas in the resort. Activities needed to be
considered. Had the tools been available that
is where he would
have deployed his resources. He would have utilised his guards
in these areas. He was not saying
that he would have posted a
permanent guard to watch the children playing.
[116.]
Certain
content of the affidavit of the security guard, Mr Geldenhuys was
quoted to Mr Kuun. He stated,
inter
alia
,
that during the course of the day he performed regular foot patrol.
During one of these patrols he noticed three young boys
at the
swimming pool. One of them was Mr K. He was known to
Mr Geldenhuys as a season ticket holder. Between
14h00 and
15h00 when he was again on foot patrol he noticed Ms L and her mother
at the pool. The content of another security
officer, Rea
Cupido was also quoted. She stated that during the course of
the day she was on duty at the gate. Mr K
came into the resort
alone with his season ticket. Later in the day she saw him
swimming at the pool with two boys.
Their identity was unknown
to her. When asked why more security guards were required in
the circumstances, Mr Kuun replied
that security was not as simple as
identifying boys as posing a threat. The security system had to
prevent any opportunity
from being exploited.
[117.]
Mr
Kuun emphasised that the environment created makes transgressors
refrain from their conduct when the security is strict and efficient
in general. Although there would always be an opportunity
waiting to be exploited it is considerably reduced by dominance
of
the terrain. If there had been a proper security system and
effort at the resort the rape would probably not have happened.
The poor security and the absence of staff on the resort created an
opportunity which was exploited. An environment was created
which was undesirable from a security point of view. It was not
only the lack of one extra security guard but also the absence
of any
staff on the resort. Counsel and Mr Kuun agreed that a
normal working day for the workers, cleaners and gardeners
at the
resort was until 17h00.
[118.]
Counsel
put to Mr Kuun that Mr Geldenhuys had also said in his affidavit that
at about 17h00 he was again on patrol and he received
a report from
Ms Cupido on the radio. He proceeded to the main gate quickly.
Ms Cupido said to him that he should apprehend
the boys that were
standing at Mr Bosman’s house on the corner. He left the
camp to do so. There just two boys.
He had seen them at
the swimming pool. When he approached they ran away and jumped
over the fence of the resort. He
went to the resort and fetched
a bicycle and then chased them. He apprehended two boys near
the hospital. While they
were talking Mr P arrived and handed
himself over. It was put to Mr Kuun that the security
guard and Ceres Alarms were
was effective under the circumstances,
even though there were only two guards. Mr Kuun replied that
his criticism went to
the security process at the resort. There
was a lack of normal emergency and incident response procedures.
The arrest
was an informal process. In general Ceres Alarms
were not prepared for incidents. No criticism was directed at
Mr Geldenhuys
and Ms Cupido. It was the security effort at
the resort which was being criticised.
[119.]
Finally
Mr Kuun reaffirmed that he disagreed with the reports of the experts
filed by the Municipality. Firstly, with the
use of the words
“random incidents and theft and disturbance” which he
would have replaced with “
a
history of reoccurring incidents.
”
Secondly, he disagreed with their conclusion that the resort cannot
be deemed to be a high security zone. These
words were
misleading. Security is a relative concept. Thirdly, he
disagreed with their conclusion that the offences
and incidents did
not warrant a high security presence, because there had been no
contact crimes except a single incident of assault.
Fourthly,
he disagreed with their conclusions that a high security presence
would have imposed on privacy of guests and that a
permanent high
security presence does not guarantee a reduction of crime.
Mr Kuun stated that in a security environment
there is no
guarantee at all. There are only levels of mitigation of risk.
He also challenged their disagreement with
his statement that the
security personnel were incompetent. They had stated there is
no standard to determine competence.
Mr Kuun insisted that
there were such standards. They would be established when the
service provider delivered a service
with manpower, technology, and
an expected outcome that was measured and achieved. In his view
the security effort at the
resort was incompetent. Standards
existed against which competence could be measured.
[120.]
Mr
Kuun agreed that a security officer would not simply look at a park
and watch the children, regarding them as highly suspicious,
and wait
for them to commit a crime. However, the presence of a security
officer makes it unlikely that rules will be disobeyed
because there
is somebody watching. The opportunity gap is closed. The
Municipality’s experts had opined that
the circumstances on the
day were exceptional due to the staff attending a meeting. Mr
Kuun viewed this as being “
the
last bottom that fell out and created the opportunity which led to
the rape.
”
It further emerged during the cross-examination that the legal
representatives of the Municipality had consulted with
the accused in
the rape.
[121.]
At
an advanced stage of cross-examination of Mr Kuun, counsel for
the Municipality handed in certain documents on which he
intended to
rely. It then emerged that the documents had not been discovered.
Formal discovery was made together with an
explanation on affidavit.
Counsel for the plaintiff then re-examined with reference to these
documents. At the outset
Mr Kuun again emphasised his concern
that the incident logbook for 20 January 2009 could not be found.
It was hard to understand
this because entries shortly after that day
were found and discovered. Ceres Alarms informed Mr Nasson,
apparently on
3 February 2009, that they had found all information in
their occurrence book, which was guaranteed to be 98% correct.
Occurrence
books were available for any investigations.
[122.]
After
being referred to the evidence of Mrs Theron, that she had read
about two or three rapes in the Ceres area in the newspaper,
Mr Kuun
was then referred to a letter written by the State Prosecutor in
Paarl to the Director of Public Prosecutions. After
mentioning
the rape of Ms L reference was made to her parents concern about rape
being perpetrated by youths in Ceres. The
Prosecutor noted that
from January 2009 the prosecutor’s office worked on at least
five cases where youth were involved and
that it appeared that there
really was a problem in Ceres. From this Mr Kuun concluded that
rape by youths appeared to be
a problem. A further letter from
the Public Prosecutor to the Department of Social Work emphasised the
media coverage concerning
such problems in Ceres.
[123.]
On
30 May 2008 Mr Nasson wrote to the Senior Public Prosecutor at
Ceres. He stated that at a recent meeting between management
and the owners at the resort the latter had expressed their
misgivings about security. This cost the municipality
R80 000,00
per month and did not have the desired effect.
Plunderers and criminals were causing great damage in the region.
The
resort which once was known for its tranquillity had suddenly
become an unsafe tourist destination. Mr Kuun stated that
this letter confirmed the threat about which he had previously
testified.
[124.]
It
would appear that after a meeting of stakeholders at the Council,
Mr Chris Kemp, a resident of the resort, wrote an open
letter to
the Mayor of Ceres, which was published in the Witzenberg Herald on
June 6, 2008. It stated that between 25 April
2008 and 4 May
2008 there had been an abnormal number of break-ins at the resort;
at least nine on two particular days.
He stated further that
“
that
the security at the camp has been pathetic to say the least since
July 2007, when private security firms took over.
”
Certain people were frightened to visit the camp. Many of them
were elderly and single. He prophetically
then wrote in bold
“
WHEN
WILL ACTION BE TAKEN, WHEN SOMEBODY IS ATTACKED IN THE CAMP !!!
”.
He concluded by saying “
that
the time is now to react before somebody is attacked or murdered …
”.
Mr Kuun stated that this letter was relevant because it too reflected
the threat at Pine Forest and confirmed its
vulnerability (to violent
crime). In the Mayor’s reply on June 20, 2008 he
stated that the Municipal Manager had
made proposals to amend the
tender specifications in order to minimise further criminal
activities being encountered. From
these exchanges in the
Herald during June 2008 it is apparent that the Mayor had been warned
of the danger of violent crime and
that he recognised that the
absence of appropriate tender specifications was part of the security
problem.
[125.]
During
further cross-examination counsel for the Municipality suggested to
Mr Kuun that Mr Geldenhuys was on patrol and Ms Cupido
at the gate
when the rape occurred. However, under re-examination it was
pointed out that in Mr Geldenhuys’ affidavit
he had stated
that he had patrolled between 14h00 and 15h00, and again at 17h00;
that is, well before and after the rape
occurred. Had Ceres
Alarms been bound by the standard tender specifications there should
have been at least hourly patrols
of the resort with the view to the
prevention of irregularities and the immediate response to the
control of any infractions of
the rules. In the absence of the
occurrence book for the day in question the only conclusion to be
drawn is that there was
no patrol of the resort during the time that
Ms L was abducted and raped.
[126.]
When
he was questioned by the Court in relation to the absence of the
municipal employees on the afternoon in question Mr Kuun said
that no
security effort at the resort could have been complete unless the
Municipality was part and parcel of the security solution.
The
employees would have been moving on the resort conducting their
normal day to day duties. They would therefore have been
a
higher physical presence as well as eyes looking out for breaches of
the rules. He would have expected anyone, from a maintenance
worker to an employee at the pool area and the playpark to have
played a role in relation to any irregularity that occurred in
the
play area and at the squash court.
[127.]
Mr
Kuun would have expected Ceres Alarms to have foreseen the
possibility that someone could be raped around the playground and
squash courts. The expectation expressed in the open letter to
the Mayor was representative of such foresight. He would
have
also expected the Municipality to have foresight of an incident,
whether it turned out to be a serious assault, rape or murder.
A security practitioner should have had a higher sense of security
concern and should have foreseen the possibility of a serious
incident where a person or a person’s body was harmed.
That was the next step after the numerous break-ins.
[128.]
A
reasonable security company would be expected reduce the risk.
The possible processes that should have been involved included
the
patrols that were designed for the resort in the specification.
Process should determine where their presence was and
how often they
should reach a point, as well as their duties at a specific point or
en-route. Such patrols should have been
monitored as to when
they took place and where they went. They should have stopped
off at the squash courts and the recreation
hall. They should
have checked for unauthorised activities and potential vandalism.
This should have been part of those
duties. The play area
should have been patrolled because it was a focal point of the
resort, as much as the swimming pool.
The perimeter was a focal
point, but only required patrol in the morning or evening to examine
for breaches. Ordinary people
should have been observed to
establish whether the rules were being broken. That
infrastructure could have been prevented
the rape.
[129.]
The
squash court should have been kept closed and controlled for access.
Although access to the squash courts was available,
it could only be
used for its legitimate purpose by feeding the meter and turning on
the lights, Mr Kuun also pointed out that
after the event the door at
the top of the stairs adjoining the squash court, which had been
opened at the time of the rape, was
replaced by a grid door which
could be locked, and a wooden door could be locked. That would
be a typical measure to improve
security Mr Kuun said. He also
stated that in his experience of resorts and hotels squash courts are
usually kept locked.
They are a place which people would use
for purposes other than those intended. The same applied to the
recreation hall which
could be vandalised. The play area should
have been covered by one camera monitored from the access control
point.
Coordination of security would have been effective if it
was emphasised by the employer through formal weekly meetings with
staff
together with the security. This would be a money saver.
It would advance the security environment against events that
were
not necessarily foreseen. If such reasonably achievable
measures had been taken, Mr Kuun doubted whether the opportunity
would have been available for the rape to have occurred Instead
an opportunity was created.
[130.]
In
final cross-examination Mr Kuun stated that he would have left his
8 year old child alone at the pool. He might have
gone
back to see if everything was still in order, but not with a concern
that the child would be molested in the particular environment
in
which she was supposed to be playing. Mr Kuun agreed that once
access to the resort was obtained a person could use the
swimming
pool and the squash courts. However, he pointed out that the
general rules for resorts and swimming pools in the
Municipality
expressly provides that “
a
limited number of day visitors are allowed and is restricted to the
allocated area.”
[131.]
Mr
Kuun stated that Mr Kasaval’s report ignored the fact that
security was an issue of an environment that security measures
should
create so as to eliminate the opportunity to exploit. He agreed
that there were no circumstances around the commission
of the rape
that would have enabled the security personnel to become suspicious
of the perpetrators, or take special measures.
In answer to Mr
Kasaval’s proposition that the resort was not a high security
facility Mr Kuun replied that his experience
of holiday resorts and
residential estates was that children left on their own caused
numerous problems. He expressed the
view that he would allow a
six or seven year old child to play at the park if he was staying in
the Louw’s chalet.
That he said was the whole idea of a
resort, “
for
kids to play and relax.
”
He might have considered Ms L playing with the three youths as a
security risk, depending on the circumstances.
However, he
would have been fine with the situation because he had control of
it. He could see the trampoline.
[132.]
The
Municipality’s expert witness, Mr Kasaval, confirmed the
content of a joint report he had prepared together with
Mr Devendran
Moodley. They had visited the premises on 15 January 2016. They
read the contents of the SAPS record, and
were present during a
consultation with one of the accused perpetrators. The starting
point for the opinions of both Mr Moodley
and Mr Kasaval was that
they agreed with the opinion of the Municipality, to the effect that
the primary responsibility for taking
care of Ms L was that of her
parents. As stated above I have reached a different
conclusion. One consequence is that
both the Municipality and
Kasaval start by under-estimating the responsibility of the
Municipality for security at the resort.
In relation to
statement that Pine Forest was a holiday resort with random incidents
of theft and disturbance he explained that
“
random
”
would be the period of occurrences (as and when and where they
occurred). They assessed that incidents at the resort
did not
all take place consistently over time and were predominantly within
semi-permanent structures, where different structures
were broken
into. By security zone he meant an area where one would create
a high visibility or a high security presence
in terms of guards and
cameras for example like a court building.
[133.]
Mr
Kasaval stated that a routine patrol in the resort would not
necessarily have detected a crime that took place inside a building.
In his view the security guard (Mr Geldenhuys) performed over and
above the call of duty in that he rode out of the premises and
apprehended the suspects.
[134.]
Mr
Kasaval conceded that the rape had occurred on an exceptional day
because 18 members of staff had attended a meeting during their
normal working hours and had all left the premises at the same time.
He acknowledged that an incident of vandalism (that
required security
attention) was perpetrated when the trampoline was cut. He
conceded too that proper security would have
had to consider such a
risk, and an attempt should have had to be made “
to
deter as much human involvement
”
there.
[135.]
His
opinion was that a security officer should dominate an area within
secured premises in order to establish the dominance of security.
This would create the impression that it was not worth trying
anything untoward in the area. However, he added that this
did
not apply to the resort; but only to events such as rugby
matches, where there were a fair number of people or loud crowds
gathering. Because there were virtually no people in the resort
on the day of the rape he would not have expected a security
officer
to “
stand
in front of someone to create that dominance, alternatively to show a
presence.
”
In fact he said “
having
security at the forefront was undesirable.
”
He would want them to be in the background to assist when required.
He speculated that a high security presence
gave an indication that
there was something wrong with the place. On this basis he
concluded that there was no threat at
the trampolines to warrant a
guard or a “
security
feature
”
being there. His view of dominance was a guard standing and
staring at “
a
young female jumping on a trampoline.
Mr Kasaval’s
notion of dominance of terrain therefore differed from Mr Kuun’s.
He regarded dominance
as guards standing in front of people. He
suggested that it was undesirable to make visitors to the resort
aware of the security
presence, and that the security should only be
called upon when required. Mr Kasaval did not seem to
appreciate the more
subtle form of dominance described by Mr Kuun.
[136.]
Mr
Kasaval’s conclusion was that the offences and incidents that
had taken place at the resort did not warrant a high security
presence. This would have imposed on the privacy of guests.
It would not have guaranteed a reduction of crime.
Mr Kasaval
says nothing about the effective use of the security resources that
were available to the Municipality at the time,
or those which it
required in terms of its tender specifications. The basis upon
which these experts absolve the Municipality
from responsibility was
that the perpetrators were “
young
children
”
(not teenage youths); they were known to the security personnel;
this was not their first visit to the premises; the
security
personnel saw them at various parts of the premises; and there
was no indication of any misdemeanour of suspicious
behaviour on
their part. They were not deemed to be threats of any nature.
The unfortunate incident occurred within a building.
[137.]
In
contrast to the facts that this Court has found, Mr Kasaval proceeded
from the understanding that no force was used to get Ms
L from the
trampoline to the squash court. In the circumstances he
concludes that additional security personnel would not
have prevented
the incident from taking place. However, he does not address
the question of whether the incident would have
been precipitated at
all had there been security dominance exercised on behalf of the
Municipality on its terrain.
[138.]
Mr
Kasaval conceded that a security presence was necessary for access
control to regulate people entering and leaving the resort;
and
that the object was to determine whether a person was authorised or
not to enter the resort. Another security guard he
said should
have been on site to perform regular patrols through the resort.
He believed that the aforegoing would have been
sufficient for this
facility. His
raison
dêtre
for concluding that the rape could not have been prevented was that
whatever security was put in place it did not guarantee that
crime
would not take place.
[139.]
Mr
Kasaval assumed that there were two security guards on duty on the
day and time of the rape. He regarded this as sufficient.
He believed that the absence of 18 staff members from the resort was
irrelevant because he did not know where they were supposed
to be
located. However, had the Municipality been forthright with Mr
Kasaval and with the court this would probably have
been known.
A question arises as to why they hid these facts. Mr Kasaval
regarded the rape of Ms L as a “
once-off
incident
”.
His insouciance is staggering.
[140.]
Under
cross-examination he confirmed that Ceres Alarms were initially
appointed from 13 December 2007 until 31 January 2008.
The
Municipality hoped that by the end of April 2008 a tender award would
be made. He conceded that initially Ceres Alarms
had deployed
six security guards at the resort during school holidays but that by
the day of the rape this had been reduced to
two. Mr Kasaval
could not explain why there was a reduction to two. He conceded
that it was very difficult for
one person to patrol the resort.
[141.]
He
conceded too that, according to Witzenberg Municipality Public
Amenities By-Law, no person was authorised to play or sit on the
playpark equipment except if that person was a child under the age of
13 years. When faced with the inference that the by-law
needed
policing he explained that there was no requirement that a security
guard had to be there. He conceded, however, that
proper
security required consistent control and application of the rules and
regulations, in particular at the swimming pool.
He conceded
too that if the perpetrator (Mr P) had been jumping on the trampoline
he ought to have been reprimanded and asked to
move.
[142.]
Mr
Kasaval was confronted with Mr Nasson’s memorandum to the Mayor
and others, on 23 May 2008, recording that the stakeholders
had
concluded at the previous meeting at the Mayor’s office that
the staff deployed in terms of the contract between the
Municipality
and Ceres Alarms was totally inadequate, and that Mr Nasson had
discovered that the latter did not submit a tender
and believed this
had serious implications for the safety and security of the resort.
Mr Kasaval commented that he was never
asked to investigate this. He
could not explain why Mr Nasson had stated that there was a major
defect in the technical specifications
required by the tender.
He agreed that these specifications required two guards at the gate
from 1 December to 31 January
and two guards patrolling the resort.
He was asked to comment on why, two weeks after the rape, Ceres
Alarms had stated that
they needed an extra guard. He could not
explain why the Municipality’s specifications and Ceres Alarms
required more
guards to patrol at the time of the rape than he
considered necessary.
[143.]
Mr
Kasaval conceded that the Say Stop diversion programme, which focuses
on psycho-social life skill and development of education,
was the
programme that the Mayor spoke about to Mrs Theron. He did
not disagree that the letter written by the Public
Prosecutor to the
DPP on 3 April 2009 confirmed that there was a problem with rapes in
the Ceres area at the time Ms L was raped.
Mr Kasaval could not
dispute Mrs Louw’s unchallenged evidence that on the days prior
to the rape there had been two security
guards at the park sitting on
the bench; and that there had been at least four security
guards on duty on Sunday, 18 January
2008. Nor could he
explain why the Louws were not informed that the number of guards was
reduced on the following Monday
and Tuesday. Nor could he
dispute that on the day of the rape Mrs Louw had seen two guards, a
man and a woman patrolling
near the chalet. Mr Kasaval stated
that he did not investigate where the 18 absent staff members
would have been located
had they been on duty. He admitted
however, that there should be a partnership between the client
(represented by the staff)
and Ceres Alarms. He and Mr Moodley
had considered the number of personnel to be on site in order to
cover the known risks
in the resort. He conceded that they did
not investigate the effect on security of the absence of the staff.
[144.]
Mr
Kasaval was confronted with Mr Kemp’s letter to the Mayor, on
13 December 2007, stating that security at the camp
was pathetic
and asking whether action would be taken before someone was
attacked. He admitted that this was damning criticism
of the
Municipality. He did not dispute that three months before Ms L
was raped, a committee of the Municipality had considered
a letter
written to Ceres Alarms in regard to its “bad patrolling”,
and the committee had asked Mr Nasson to investigate
and provide a
report at the next meeting. Nor did he dispute that, on
1 September 2008, the resort manager Mr Bosman
had written to
Ceres Alarms stating that security guards at two resorts were not
acting in terms of regulations and access requirements.
He
admitted that this was a serious concern.
[145.]
He
understood the duties of security at the resort to include a
requirement that all pedestrians that entered the resort had to
be in
possession of a valid season ticket or “
knipkaart
”.
Mr Kasaval stated that he had asked to see the tickets of the three
perpetrators. He had seen one application
for a season ticket,
but he had not seen the other two. His attention was drawn to a
letter written by plaintiff’s
attorney to Ms Du Plessis, asking
for confirmation that the perpetrator Mr P did not have an admission
card. She had replied
that two perpetrators had legal cards and
Mr P came in on another child’s card, Mr Kasaval said that he
had taken that up
with the Municipality. He was told that
because they were children from the area that access control was not
strictly adhered
to. They could not explain, however, why the
security personnel did not ensure that each of the perpetrators had a
legitimate
access card or season ticket. Mr Kasaval conceded
that when it came to access control regarding the three perpetrators,
the
Municipality might not have done everything that they ought to
have done on the day. The guard ought to have verified who
the
perpetrator’s tickets belonged to. She therefore did not
carry out her duties as she ought to have.
[146.]
Mr
Kasaval was confronted with the resort manager’s letter to Ms
Du Plessis, one week after the rape, stating that a competent
security section should be on site that and during the past eighteen
months it had been realised that a private company could not
deliver
the service needed. He evaded the issue by contending that the
security company was not incompetent because the guards
were
certified, having attended classes and written the exam. He did
not dispute that on 1 September 2008 the resort
manager had
written a complaint that the security guards were still using their
own discretion. This could not be accepted.
The rule was
“
no
official permit, no entry
”.
Nor did Mr Kasaval ever establish why seven days after the rape
the manager had said that Ceres Alarms could
not deliver the service
needed for control. Nor could Mr Kasaval assist the Court in
identifying the five serious incidents
or the two assaults referred
to by the resort manager. Mr Kasaval acknowledged that
residents were doubting the safety of
women and children in the
resort according Mr Kemp’s to the Mayor during dated June
2008.
[147.]
When
confronted with the Resort and Swimming Pool’s General Rules of
the Municipality and its provision that “
a
limited number of day visitors are allowed and (are) restricted to
the allocated area
,”
Mr Kasaval stated that the allocated area was around the pool.
The rule existed at the time of the rape but
was no longer enforced
because the resort had games and other facilities in which day
visitors were allowed to partake in the recreation
hall. He
admitted that save for the main entrance to the pool area, the pool
area was fenced, and had two gates for which
locks existed.
When he was referred to the technical specification for the
Municipality’s security tenders, to the
effect that patrols at
the resort had to take place at least hourly with a view to the
prevention of irregularities and the immediate
response to and
control of any infraction of the rules, Mr Kasaval said that the
specification was standard. He did not dispute
the requirement,
however. He did not dispute that the specifications required
four guards at the resort during peak season.
[148.]
His
only explanation for the fact that the Municipality was able to
provide the occurrence book for 5 February 2009, but not one
for
20 January 2016, was that the book for 20 January might have
been fully written up and replaced with a new one.
Mr Kasaval
was then taken through certain documentation aimed at establishing
that up to 20 January 2009, and thereafter,
there were many
criticisms and concerns by the Municipality about the service
provided by Ceres Alarms. On 12 May 2008 the
resort manager had
written to Mr Stuurman at the Municipality officially informing
the latter that the security situation
was out of control as a result
of a number of factors including defective security patrols as a
result of undermanning due to lack
of funds. Mr Bosman had
asked for more funds to be made available. On the following day
Mr Nasson confirmed that the
stakeholders agreed that the staff
deployed in terms of the contract was totally inadequate. Mr
Kasaval did not say whether
this request was responded to in any
way.
[149.]
He
confirmed that he never established during a consultation with the
perpetrator how Ms L was lured from the play area to the squash
court. He also never asked the Municipality for any
comprehensive security proposal made by Ceres Alarms. He did
not
dispute the conclusion reached by the investigating officer in
the criminal case which stated that “
it
looks as if the suspect saw that the victim was not normal and took
advantage of the situation.
”
Mr Kasaval had “no qualms” about that conclusion.
He was unaware that prior to the day of the
rape tickets had to be
bought for the trampoline. He did not dispute that by simply
locking the doors at the top of the staircase
and at the back of the
hall the squash court could have been secured. He agreed to
some extent with the proposition that
the Municipality and Ceres
Alarms could have established potential threats at the resort by
looking at past incidents and current
trends within the local
community. He could not dispute that there appeared to be a
problem in Ceres as far as juveniles
and sexual assaults were
concerned. He agreed that the rape of Ms L was an opportunistic
crime and that the point of security
was to minimise the
opportunities for opportunistic crime.
[150.]
Mr
Kasaval’s report and evidence failed to address the substantial
proposition put up by Mr Kuun; namely, that dominance
of the
resort terrain would have operated to prevent the opportunity for Ms
L to be raped; and that the effective use of
resources
available to the Municipality at the level set out in their tender
specifications would have prevented the rape; but
instead the
Municipality facilitated and/or allowed a complete absence of
security to exist at the resort at the time when the
rape occurred.
Mr Kasaval conceded that it would have been ideal to have regular
patrols through the area as a deterrent.
Although the resort
was 26 hectares in extent the security patrols should have focused on
the playgrounds and swimming pool (including
the recreation hall and
trampolines), as well as the living areas. He conceded further
that additional security personnel
on the premises would have created
a more secure visibility and a strong security presence and could
have resulted in a reduction
of crime. He also conceded that
20 January 2009 was an exceptional day due to the staff
meeting. He further conceded
that so much time had elapsed
between the incident and his assessment that it created difficulty
for him to establish the facts.
This was not helped by the lack
of security company records. Like Mr Kuun he did not have
copies of posting sheets or occurrence
register entries.
[151.]
I
reject Mr Kasval’s conclusion that the number of security
personnel on duty that day was adequate for the intended purpose.
Even if I am wrong in this conclusion there is no evidence that
Mr Geldenhuys was deployed after 15h00 in order to ensure
security. Mr Kasaval’s conclusion completely fails to
address the absence of resort personnel at the time of the rape,
including the swimming pool supervisor; or the opportunity that the
Municipality presented to potential wrongdoers. I therefore
reject his conclusion that the rape was not due to any lack of
security on the part of the Municipality.
[152.]
By
agreement between the parties statistics provided by SAPS relating to
the number of juveniles involved in rapes in the greater
Witzenberg
Municipality area were admitted as evidence. During 2007 there
were 26 relevant sexual offences. During
2008 there were
30. During 2009 there were 23. During 2007 seventy eight
sex related offences were reported of which
16 perpetrators were
juveniles. During 2008 seventy six cases were reported in which
16 perpetrators were juveniles.
In 2009 seventy three cases
were reported in which 7 perpetrators were juveniles.
[153.]
Negligence
on the part of the parties must be tested according to the principles
laid down in
Kruger
v Coetzee
[40]
which were formulated as follows:
“
For
the purposes of liability culpa arises if –
(a)
a
diligens paterfamilias, in the position of the defendant -,
(i)
would
foresee the reasonable possibility of his conduct injuring another in
(her) person or property and causing (her) patrimonial
loss;
and
(ii)
would
take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.
”
[154.]
During
the year before Ms L was raped a plethora of criminal incidents had
occurred at the resort. On 12 May 2008 the Municipality’s
Community Services Committee had been informed by the resort manager
that the security situation was out of control due,
inter
alia
,
to defective security patrols. An urgent request was made for
the Mayor and Municipal Manager to meet to resolve the problem.
On 22 May 2008 the resort manager warned the Mayor that sufficient
funds should be made available to deploy sufficient manpower.
On 30 May 2008 the Acting Municipal Manager informed the Senior
Public Prosecutor that the resort was unsafe. Tens of
break-ins,
five serious incidents and assaults had occurred. A
reasonable executive in the control of the Municipality, which had
assumed
responsibility for the security of the resort, would have
foreseen the very real risk of a very violent incident taking place
there.
Indeed the Mayor was warned of this possibility in a
letter from one of the residents. Mr Kuun testified that an
escalation
from housebreaking to violent crime was reasonably
foreseeable. Incidents of rape were not unknown in Ceres before
Ms L was
raped. The rape of a resident at the resort was
therefore reasonably foreseeable.
[155.]
The
four basic considerations which influence the reaction of the
reasonable person in a situation posing a reasonable risk of harm
to
another are the degree or extent of the risk posed by the actor’s
conduct; the gravity of the possible consequences
if the risk
of harm materialises; the utility of the actor’s
conduct; and the burden of eliminating the risk
of harm.
[41]
[156.]
Upon
being alerted to the risk of violent crime at the resort the Mayor
acknowledged that security had to be addressed by requiring
security
to be conducted in accordance with the Municipality’s tender
specifications. These included the deployment
of four security
guards per shift, with two patrolling and patrols to be conducted on
an hourly basis, as well as proper access
control. The resort
manager and a senior official (Mrs Du Plessis) were aware of the fact
that security in both these areas
was failing. The acting
Municipal Manager directed the attention of Ceres Alarms to these
defects. The resort manager
informed the Acting Town Manager
that for eighteen months prior to the rape a private company could
not deliver the service needed
to control the resort. Despite
the warnings by Mr Nasson to the Mayor, his Deputy, and the Chief
Financial Officer, that
staff deployed by Ceres Alarms was totally
inadequate, and that there was a major defect in the
relationship between them
and the Municipality (due to the lack of a
contract in terms of tender specifications), nothing was done to
remedy the situation
between 23 May 2008 and the day of the rape.
Even though it was the Municipality’s intention to put out a
tender by
April 2008 no tender was advertised.
[157.]
No
attempt has been made by the Municipality to explain this failure.
They had failed to provide security measures which they
knew and
believed were necessary. They failed to ensure that such
security as was in place was properly utilised. Ceres
Alarms
expressed the view that on the day of the rape they were undermanned
in that there were only two guards on duty; one
at the gate and
one patrolling. The solution proposed accorded with what the
Municipality had intended to do; namely,
conclude a formal
contract. The Municipality failed to present any evidence or to
establishthat it did not have the means
to put out a formal tender
and to contract on the basis of its normal tender specifications, and
enforce such contractual provisions.
It was unreasonable of the
Municipality not to take steps to guard against violent crime by
putting the security at the resort
up for tender in terms of its
normal specifications. A reasonable person in their position
would have done so.
[158.]
The
degree or extent of the risk of a serious crime being committed was
apparent from the concerns addressed in the documentation
referred to
by Mr Kuun. The gravity of possible consequences if serious
crime materialised was immense. The burden
of eliminating the
risk of harm was no greater than simply putting into force the
Municipality’s usual tender specifications
as it in fact
intended to do. The Municipality not only failed to take such
steps, but it furthermore abandoned any dominance
of the terrain on
the afternoon of the rape. No reasonable person concerned about
security at the best resort would have
done so. The
Municipality was therefore negligent in relation to the consequences
suffered by Ms L.
[159.]
The
question then arises as to whether the rape would have occurred had
the Municipality taken the reasonable steps above to guard
against
it. The “
but
for
”
test determines whether the omission by the Municipality to provide
proper security at the resort caused harm to Ms L.
This
involves an inquiry into whether, but for this omission, the loss
probably would not have occurred. Reasonable steps
would have
involved the deployment on the day of the rape of two security guards
per shift at the entrance of the resort and two
on patrol;
proper access control, and hourly patrols focusing on the risk areas,
including the play park, recreation hall
and squash court as
identified by Mr Kuun, and taking place on an hourly basis.
Access control would have had to be maintained
at the level suggested
in documents before the Court, notably the requirement of a valid
season ticket or “knipkaart”.
The resort personnel
would not have been evacuated from the resort without giving notice
to the residents and/or closing the resort
to day visitors during the
period that the personnel were not on site. Had valid tickets
been required Mr P may not have
been on the resort at the time when
Ms L played at the park. Had the resort been closed to day
visitors during the absence
of resort staff none of the perpetrators
would have been there.
[160.]
Application
of the “
but
for
”
test is not based on mathematics, pure science or philosophy.
It is a matter of common sense, based on the practical
way in which
the ordinary person’s mind works against the background of
everyday-life experience.
[42]
Had the resort communicated the complete absence of staff and
security between 16h00 and 17h00 Ms L would probably
not have been
allowed to play in the park.
[161.]
In
Minister
of Safety & Security v Van Duivenboden
Nugent
[43]
JA said the following:
“
A
plaintiff is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct was
probably
a cause of the loss, which calls for the sensible
retrospective analysis of what would probably have occurred, based
upon the evidence
and what can be expected to occur in the ordinary
course of human affairs rather than an exercise in metaphysics.
”
The
Constitutional Court has held that this approach does not overlook
the importance of applying common sense standards to the
fact of the
case.
[44]
[162.]
The
question posed by counsel for the plaintiff in these circumstances is
“
Why
was Ms L abducted and raped at that particular time and that
particular place on that particular day?
”
On the facts proved Ms L was abducted from the trampoline area and
physically forced to proceed some distance over
part of a putt-putt
course and along the length of the outside of the recreation hall.
She was then forcibly moved up the
staircase outside the squash court
and fell in the process. Had two security guards been
patrolling the grounds, in accordance
with the specifications and the
appropriate patrol measures described by Mr Kuun, it is possible
that such activity by youths
may have drawn their attention. If
resort personnel who had left were present on the premises at the
time they may have seen
the abduction (or even the rape) and may have
interrupted the crime, or informed the guards on patrol of what they
had seen.
[163.]
It
was open to the Municipality to lead direct evidence to exclude the
last conclusions. They elected not to inform the court
where
these employees should have been at the time of the rape. In
failing to call these witnesses the Municipality ran the
risk of
plaintiff’s burden of proof being relieved. Mrs Louw
testified about the regular presence of security guards
at the
playpark or within eyesight of her chalet. She showed that
resort personnel would also visit the park. The specifications
required hourly patrols by two guards. All of this was enough
to cast an evidential burden on the Municipality to show that
resort
personnel would not have observed the abduction. The election
not to present any evidence, even evidence which must
have been
within the knowledge of the employees of the Municipality does not
shift the burden of proof. Nevertheless, in
the absence of
evidence from the Municipality, particularly as to the whereabouts of
its own staff, the court is entitled to select
– out of two
alternative explanations as to whether or not the abduction would
have been seen – the one that favours
the plaintiff.
[164.]
However,
for purposes of this judgment it is not necessary for me to go so
far. It is probable that had the supervisor of
the swimming
pool been present the perpetrators would have felt eyes upon them
from the outset. The same applies to the other
absent
personnel. Similarly, the fact that two guards would have been
on hourly patrols after 15h00, as the specifications
would require
them to do, would have given the impression of policing to the
perpetrators. This would have discouraged them
from risking an
abduction and rape. The risk of being seen and apprehended
would have been present on their minds.
[165.]
Applying
common sense the answer to counsel’s question is that the
Muncipality caused the rape of Ms L. It created a
complete
security vacuum at the time. Firstly, it failed to provide for
security presence required by its own tender specifications.
Secondly, it failed to supervise and enforce the terms of Ceres
Alarms quotation; that is, four security guards should have
been on duty for the day shift. Thirdly, it failed to ensure
that its own access regulations were enforced. Fourthly,
it
withdrew all but one of the resort staff at the critical time.
This situation was created and allowed to exist by the
Municipality
without informing persons likely to be affected such as the Louws.
The perpetrators seized this opportunity
to abduct and rape of Ms L.
The act and omissions on the part of the Municipality were the
probable cause of the rape.
Accordingly there is a probable
chain of causation between the negligent omissions (and one act) by
the Municipality and the rape
of Ms L. The Municipality owned,
managed and controlled the resort. It failed to appoint a
competent security firm
to secure the resort in accordance with a
contract embodying its usual technical specifications. There is
no room for a defence
relying on Ceres Alarms status as an
independent contractor because the Municipal executive and management
were aware that their
failure to put out a tender and to contract
posed a threat to users of the resort.
[45]
[166.]
I
would therefore uphold plaintiff’s claim. Plaintiff is
entitled to be awarded such damages as arise from the rape.
SEQUELAE
OF THE RAPE
[167.]
The
facts and circumstances surrounding Ms L’s disability are not
in dispute. The story of Ms L is set out in the report
of
Annetjie van Niekerk. Ms Van Niekerk met Ms L in February 2000
and worked with her for ten months. Very little is
known about
Ms L’s birth and her early history. According to records she
was the third unwanted child of an unmarried mother
who quickly wrote
her off. When Ms Van Niekerk met Ms L she thought her to be 7
years old. Until January 1996 she lived
in an orphanage in
Bulgaria. She was then transferred to an institution for
retarded children. According to a medical
summary her
psycho-motor development was slow from birth. At the age of
five months she was diagnosed with spastic hemi-paresis
in her lower
limbs. She was regarded as completely incapable of education.
[168.]
Her
adoptive parents were two missionaries working in Sofia. They
saw Ms L for the first time in March 1998 when they visited
the place
where she was institutionalised. She was naked and lying under
a blanket. She wept when she was touched.
The medical
staff were expecting her imminent death. Of the 80 children
that had been cared for in the institution, very
few reached the age
of 16 years. Her diet consisted of watered-down yoghurt which
she drank out of a steel bowl. It
was presumed that she was
never allowed to touch the bowl. She spent her days in a cot
with bars which was barely larger
than she was. There was no
physical space for her to roll over or develop motor function.
Her contact with nursing
staff was limited to basic care. Because she
was the only child who waived the flies away the Louws assumed that
she was not as
mentally retarded as was generally accepted.
They began to visit Ms L regularly.
[169.]
In
January 1999 they succeeded in having Ms L admitted to the State
University Hospital at Sofia. She was about six years
old at
the time. She weighed only 7.3 kg and was 86cm tall. X-rays
placed her age at 2 years, 8 months. She was
very
neglected, pale, completely passive and apathetic. She suffered
from severe malnutrition. A predominant clinical
problem with
her was acute swollen abdomen. Her hair had been shaved off and
her teeth were all rotten. She had full
movement in her joints,
but limited flexion in her ankles. She was incapable of
spontaneous movement. She could not
turn her head. She
could not make other movements spontaneously such as rolling over.
A diagnosis of acute deprivation
was made. A controlled feeding
programme was commenced, and later movement therapy.
[170.]
In
November 1999 the Louws brought Ms L to South Africa for one year.
Ms L was then investigated by professionals. No
pathology was
found. A general stimulation programme and physiotherapy began
in November 2000. At that stage Ms L was
about 7 years old.
She could not bear to be on her stomach. She could not roll
over. Her legs were usually fully
extended. Although it
was doubted at first, it was later established that Ms L had no
spasticity. The hyper extension
patterns of her lower limbs
were typical of children with serious malnutrition.
[171.]
When
Ms Van Niekerk met Ms L she had to be carried into the consulting
room and laid down on a mat. She was friendly, smiled
and
laughed. She communicated well by making “gagga”
noises and pointing with her index finger. Some of
the words
she used were understandable (“look”). She reacted
to simple instructions but her reaction required
interpretation by
her parents (for Ms Van Niekerk’s benefit). Ms L chose to
lie on her back on a mat with her arms
loose and her legs totally
extended. She could only sit if her back was supported and her
legs fully extended. If the
back support was removed she fell
backwards. If she was placed on her stomach she quickly moved
to her back. She was
still fed with a spoon. She made no
attempt to feed herself. Because of her malnutrition her food
had to be flattened
with a fork. She could only eat a little
bit at a time. She had no toilet control.
[172.]
Ms
L received physiotherapy once a week and occupational therapy twice a
week. First there was a focus on sensory motor stimulation.
Her hands were very sensitive. She only touched objects with
her finger tips. By April she was learning to crawl, but
this
made her very tired. Putting weight on her hands was still a
problem. A speech therapist was employed. At
this stage
Ms L still made babbling sounds but also copied words. By the
middle of April 2000 she began to crawl on her knees
and elbows but
she could not lift her head. By the middle of May she began to
crawl normally. She could sit independently.
By June she
could move from her stomach to a sitting position to a crawl; and
could carry her weight by kneeling. She found
it difficult to
stand. She could not bear weight on her hands. By August
Ms L had decided to try eating by herself.
By then she could
dress and undress herself. By November she could move from a
sitting position and stand if her hands were
held. She spoke
about 38 words and could indicate her needs with a babble. She
could follow simple instructions.
Her weight by then was 18kg.
She was 103cm tall. Her year-long hospital permit then expired
and she returned to Bulgaria
with her parents.
[173.]
Louise
Frieda Theron testified that she has a BA degree in social work and a
Master’s degree in management. She is the
CEO and manager
of the non-profit organisation called “Helderberg Uitreik”.
It focuses on development, poverty
relief and evangelism in various
countries. Mr and Mrs Louw are Uitreik’s missionaries in
Bulgaria. She had known
them since 2006. At that time Ms
L was a very loving and caring girl, very friendly and well-adapted.
Mrs Theron had
visited the Louw’s in Sofia, Bulgaria, in 2008
and stayed in their apartment. The Louws returned to South
Africa for
about six weeks to two months every year. Mrs
Theron’s office was usually their first stop. After that
they would
often pop into the office.
[174.]
On
20 January 2009 Mrs Theron received a call from Mrs Louw informing
her that Ms L had been raped. Mrs Theron was asked to
visit
Ceres. She did so the next day. At that stage she was
aware that there had been several rapes in Ceres which
had been
reported in the newspaper. On her arrival in Ceres Mrs Theron
found that Ms L was no longer her spontaneous self.
Usually she
would run to Mrs Theron and give her a hug. On this occasion
she just remained seated, bent over, moving backwards
and forwards.
[175.]
Mrs Theron
took Ms L to town during the time that the Child Protection Unit
visited the Louw. Ms L told Mrs Theron that
she had been hurt
by “
bad,
bad friends
”.
When they returned to the chalets Ms L agreed to show Mrs Theron
where it happened. They went to a play park
close to the
chalet. Ms L informed Mrs Theron that she had met them there.
She said that they took her to a building
close by. They walked
to the building but when they got to the bottom of the outside stairs
Ms L did not want to go up.
[176.]
Later
a delegation from Ceres Municipality arrived at the chalet. The
delegation included the Mayor and others. They
had come to
sympathise, to give their condolences, and to apologise for what took
place in their resort. Mrs Theron questioned
the Mayor as to
what was happening in Ceres with all the rapes. He replied that
they were aware of it and were rolling out
a programme to educate the
young men and boys of Ceres to respect women. She also asked
him why there was no one on the terrain
to help the Louws when the
event happened. He replied that there had been a meeting at
16h00 and he could not explain why
there was no one on the terrain to
help the Louws in their trauma. Mrs Theron spent the night in a
room in the chalet which
she shared with Ms L. She was woken up
by noise and movement from Ms L’s bed. Ms L was lying on
her back.
She had pulled her leg up towards her chest.
She was crying and moaning and saying “
No!
No! Moenie! no!
”.
Mrs Theron could not tell whether Ms L was awake or asleep. She
managed to calm her down with her voice.
Ms L turned on her
side, but later repeated the same action once or twice.
[177.]
Under
cross-examination Mrs Theron stated that she had contact with Ms L at
least three months out of each year after 2006.
This was
whenever the Louw’s visited South Africa; and also during the
two and half weeks that Mrs Theron spent in
Sofia with them.
When the Louw’s were busy reporting back on their missionary
work Ms L would sit in the meetings and
chat with Mrs Theron.
She was very spontaneous and friendly. She was allowed to play
outside with other staff members.
During the three day retreat
that the organisation usually had for its staff members at Volmoed Ms
L was allowed to play at the
camp site on her own and unsupervised.
[178.]
Mrs
Theron said that as a social worker she was very concerned about what
was happening in Ceres. The rape of Ms L was about
the fourth
in a short period of time. After the incident Mrs Theron
observed Ms L at the Volmoed retreat. She was not
her old
self. Whereas previously she had been a spontaneous friendly
girl now, “
she
was into herself and scared to move this far from her parents.
”
She kept her distance from everybody. By the time Mrs Theron
testified she was of the view that Ms L was
gradually becoming the
person she used to be before the rape. Mrs Theron observed that
Ms L could dress, eat and feed herself,
and also take care of her own
ablutions. She could operate the TV, make basic food, and
operate the lift to the Louw’s
apartment. She knew the
people in the building.
[179.]
Marise
Wattel testified that she had been trained as a kindergarten
teacher. She qualified in 1970. She had taught at
the
Cheré Botha School from 1987 till 2013 when she retired.
The school dealt with children with special teaching
needs. Ms
Wattel had been contacted by a therapist who had asked her to help Ms
L. Although Ms L was 11 years
old and Ms Wattel usually
dealt with children under the age of 6 years she agreed to help.
She would see Ms L for three session
of two hours when the family
were in South Africa every year. Mrs Louw would be present so
that she could understand how
to stimulate Ms L and help her
develop. Ms Wattel was amazed to see how quickly Ms L developed
despite the limited number
of her lessons; that is, when she
considered that Ms L had been confined to a baby bed for the first
seven years of her life
and had received no stimulation. After
the first three sessions Mrs Louw was given work to do with Ms L
at the Louw’s
home in Sofia, Bulgaria. After the sessions
Ms L would play on the school grounds with other pupils. On one
occasion,
after Ms Wattel had stopped giving Ms L therapy, she had
sat in a school class for four days. She easily and happily
fitted
in. By the fifth day she participated in the school’s
athletics gathering. Usually when Ms L came for therapy
and she
saw Ms Wattel she would jump up and run to her and give her a hug.
Ms L was very spontaneous, friendly and outgoing.
[180.]
During
early February 2009 Mrs Louw and Ms L visited the school.
When Ms Wattel approached she found Ms L sitting between
her parents
on a bench. She was leaning slightly forward and showed no
reaction when Ms Wattel approached. Ms Wattel
could get no
reaction from Ms L when she attempted to begin her therapy. Ms
Wattel bore no knowledge of the rape at that
stage. Ms
L appeared to be a totally different child. As a result Ms
Wattel stopped the therapy to find out what
the problem was. Ms
L refused to go to the playground. She went to stand by
the window of the room. She
looked out and said, “
daar
is seuns
”,
and moved backwards from the window. Nothing like that had
happened in the past. Ms L had always been
very
enthusiastic. As a result Ms Wattel had to call in the school
nurse to accompany Ms L to the bathroom. When the
Louws
explained to Mrs Wattel what had happened to Ms L, she understood why
Ms L had withdrawn into herself and could do nothing.
She was
traumatised. That was the last time that Ms L came to Ms Wattel
for therapy. Prior to this meeting Ms L had
reached a stage
where Ms Wattel had recommended that they should work in the
direction of teaching Ms L self-help skills to
make her ready
for working in a protected environment.
[181.]
During
October/November 2009 Ms Wattel had attended a conference in
Bulgaria. It was arranged by lawyers who eventually brought
a
court case against the Bulgarian government to improve the treatment
of children with disabilities in the country. During
her visit
Ms Wattel stayed in the Louw’s apartment. She slept in Ms
L’s room. Ms L slept with her
parents. Within
this safe environment Ms L played well. However, her
concentration was bad and she was easily distracted.
Ms Wattel
attempted to teach Ms L her homework and to provide Mrs Louw
with a programme for Ms L. At that stage it appeared
that Ms
L’s development had been set back a year. It would
take time for her to feel safe enough to start again.
Ms Wattel
noted, during this visit, that whenever Ms L experienced stress
she made strange moves with her hands and mouth
and baby noises,
almost as if she was going back to years before.
[182.]
Before
Ms L was raped Ms Wattel had assessed her. Her school level was
between that of a 7 or 8 year old. Before reaching
this
conclusion she had tested Ms L’s motor, fine motor and
cognitive skills, her communication receptiveness and expression,
her
sociability and self-help. Ms L had also begun with writing,
numerals and reading. Ms Wattel concluded that Ms
L needed
maximum help from doctors and various therapists. She needed
full-time play therapy urgently to work through the
experience.
Ms Wattel had therefore referred Ms L to Elmarie Janse Van Vuuren.
[183.]
Under
cross-examination Ms Wattel stated that she had agreed to treat Ms
L because she had not been near the development of
a 6 year old,
or ready for a teaching class. Before the rape Ms Wattel had
treated Ms L for over a period of three years
from the age of 11.
Then she had not seen Ms L until February 2009, after she
had been raped. After 2009
Mrs Wattel investigated Ms L’s
reading, writing and performance of tasks in her home (such as
gathering dirty washing, helping
to make the food and setting the
table). At the time she testified Ms Wattel was of the opinion
that Ms L’s finer reasoning
skill was impaired. The
object of teaching Ms L was to enable her to live on her own, but
under a measure of supervision.
Ms Wattel did not feel she was
competent to say whether Ms L had reached a level where she could
perform under sheltered employment.
[184.]
Before
she was raped Ms L’s fine motor development had been at a Grade
1 level. So too were her reading skiIls and numeracy.
Her
cognitive level was about 7 to 8 years. Insofar as her gross
co-ordination was concerned she could play in the play park
(on the
swings and slide) and she could play outside comfortably. She
had participated in an athletics tournament.
When Ms Wattel saw
Ms L in Bulgaria she seemed better than she had been in January 2009
after the rape, but she was still not her
old self. There was a
reasonable improvement when she was in her protected environment, far
from where the event had happened.
It was not a great
improvement.
[185.]
When
questioned about her referral of Ms L to Ms Janse van Vuuren, Ms
Wattel stated that children and mentally challenged persons
did not
have the capacity to give explanations in words. Adults might
require psychological help. With children, play
therapy was
worth gold. They played with various things and through various
techniques they were helped to get rid of their
problems. Ms
Wattel was a qualified play therapist, but had no practical
experience. Therefore she referred Ms L to
an expert.
Finally, under cross-examination, Ms Wattel stated that by the time
of her testimony (when she had met Ms L for
the first time since the
visit to Bulgaria), she experienced Ms L as an attractive young
woman, who had reached her level of cognitive
development. She
could use a camera perfectly, download the pictures onto a computer
and work a computer.
[186.]
Dr
Beverley Joe Dickman, is a clinical psychologist. She
interviewed Ms L on 21 February 2012 and 16 March 2012 and testified
on behalf of the plaintiff. Another clinical psychologist Mr
Larry Loebenstein testified on behalf of the Municipality.
He
interviewed Ms L and her parents on 12 March 2014. The
expertise of both of them is not in doubt. There were
few
differences in their conclusions.
[187.]
Dr
Dickman had been requested to consider the psychological sequelae
suffered by Ms L and her adoptive parent as a result of the
rape.
She had read the reports of Ms Van Niekerk, Ms Janse van Vuuren,
Ms Wattel, Ms Hundermark, and a private psychologist,
Ms Eloise
Uys. The aim of Dr Dickman’s report was to track Ms
L’s reactions and degree of recovery;
and also to
document the adverse effects of the rape on Mr and Mrs Louw,
because their psychological status has a direct effect
on Ms L’s
well-being and recovery. At the age of 23 Ms L still has
special needs and remains very dependent upon her
adoptive parents.
[188.]
By
way of introduction to her report Dr Dickman set out a brief history
of the family. Ms L’s adoptive parents are missionaries.
They worked in Bulgaria from October 1997. At the time when
they adopted Ms L they were visiting State orphanages and
institutions
for disabled children and adults in Bulgaria. They
documented conditions there and advocated improved care. They
first
saw Ms L in an orphanage in Dobromirci in 1998. She was
an extremely ill and emaciated girl of about 7 years. She was
not expected to survive. The Louw’s were informed that
she had brain damage and cerebral palsy. They arranged
medical
care for her. She was later admitted for a lengthy period to a
paediatric hospital in Sofia. She was found
to have no signs of
brain damage. She was diagnosed as severely malnourished and
under stimulated. Adoption proceedings
were begun. Mrs
Louw spent a year in South Africa with Ms L in 2000, primarily to
obtain treatment for her, including physiotherapy,
occupational
therapy and speech therapy. This treatment is summarised in the
report of Ms Van Niekerk.
[189.]
Within
a year, at the age of about 10, Ms L learnt to sit, crawl and walk,
and develop speech. Her treatment was first provided
at home.
Ms L was formally adopted in March 2001. Mr and Mrs Louw
established a private foundation in Bulgaria named
after Ms L, which
has the mission of improving the lives of destitute children in
Bulgaria. Prior to the rape Ms L had developed
basic self-care
skills such as feeding, washing and dressing herself, but she
required some assistance. She learnt to assist
with household
chores and cooking, and took pride in keeping her own room neat.
Ms L enjoyed photography and developed into
a sociable and friendly
person. She would play with neighbourhood children on her own.
She was content to remain with
friends when her parents needed to
travel for their work. Prior to the rape she had not been
exposed to any sex education.
[190.]
In
dealing with the effects of the rape on Ms L Dr Dickman first
referred to the report of Ms Uys who had evaluated Ms L on 16 March
2010. This described Ms L’s acute shock and distress.
Dr Dickman’s report described her reactions
as falling
into three groups; firstly, persistent re-experiencing of the
traumatic event – such as recurrent and intrusive
thoughts
about the event, nightmares, or intense emotional and/or
physiological reaction to reminders of the event; secondly,
persistent avoidance of reminders of the trauma and numbing of
general responsiveness, for example in diminished interest in
activities
previously enjoyed and social withdrawal; thirdly,
persistent symptoms of increased arousal such as sleep difficulties,
difficulty
concentration and hyper vigilance. Dr Dickman found
that without doubt that Ms L suffered from chronic post-traumatic
stress
disorder (“PTSD”); The symptoms persisted
beyond three months. These included nightmares, fearfulness of
people, (especially teenage boys), social withdrawal, loss of
interest in activities, poor tolerance of stress and hyper
vigilance.
Furthermore Ms L regressed in her language and
soiled herself for a while. She was generally anxious and
unable to easily
separate from her parents. Due to severe
concentration problems she was unable to engage with her home
education programmes.
Her reactions were consistent with
international literature on the effects of sexual abuse on people
with special needs.
According to the diagnostic and statistical
manual used by psychologists if symptoms persist beyond three months,
then that is
considered chronic PTSD. The fact that Ms L
deteriorated by about 12 months was quite a significant regression.
[191.]
Three
years after the rape Ms L had recovered to some extent. She
still had distressing symptoms, but these no longer met
the threshold
of PTSD. She was more able to separate from her parents.
She remained afraid of teenage boys. Nightmares
still occurred
occasionally. Her parents experienced her to be different from
the trusting, carefree, enthusiastic persons
she had been. They
were particularly concerned about her lack of progress with her home
programme due to her poor concentration
and sensitivity to any
stress. They considered putting Ms L onto Ritalin to improve
her concentration, but were dissuaded
by Dr Dickman.
[192.]
From
the early 90’s Dr Dickman’s job was exclusively to assess
complainants with intellectual disability in rape cases.
Ms
Hundermark was one of her colleagues. At Dr Dickman’s
initiative the Louw family saw Mrs Susan Manson, a psychologist;
because Mr and Mrs Louw required some assistance from a psychologist
at that point (6 October 2013). Dr Dickman explained
that when
one has a dependent who has been traumatised in some way the context
is particularly important. The role of the
caregivers is
vital. The family is offered treatment as well. Red Cross
Hospital follows this worldwide standard practice.
Therapy for
Mr and Mrs Louw would aid Ms L’s recovery.
[193.]
Dr
Dickman supplemented her report after interviewing Ms L again on
24 January 2014. The object of this report was to
determine whether it had been appropriate for Ms L to be allowed to
play alone in the playground on the afternoon she was raped.
This supplementary report dealt with the issue of appropriate
independent activity at Ms L’s level of disability as well
as
the explanation by Mr and Mrs Louw as to why they permitted Ms L to
play alone in the playground. Dr Dickman expressed
the
opinion that monitoring a mildly disabled young person is less
constant than people who suffer profound intellectual disability.
At the highest level a mildly disabled young adult may be living
largely independently at home or in a group home, and travelling
independently on public transport to a place of work (with assistance
available when needed). A parent or guardian would
monitor more
closely at times (e.g. when such a person talks about making a large
purchase, or making a significant life change.)
Constant visual
monitoring of such a person’s activities would be inappropriate
and intrusive. In order to assist such
a person to develop as
much as possible, responsible parenting should include encouragement
of independent activity. Over-protection
can be a major block
to development. At time of the rape Ms L was actually being
encouraged to acquire new skills by her
parents. She had made
huge strides from the age of about 7 or 8. She was working
actively on cognitive skills through
a home programme, as well as
life skills such as cooking. She was largely independent in
terms of the abovementioned functions.
[194.]
Ms
L was secure in her understanding of the need for care when dealing
with dangerous objects in the home (knives and the stove).
She
enjoyed spending time alone in her room, organising her belongings
and occupying herself independently. She was familiar
with
playgrounds in her neighbourhood in Sofia, which are a popular
gathering point for parents while their children play.
She was
appropriately careful on play apparatus. She played
unsupervised with neighbourhood children. She would sometimes
go to the nearby shop independently.
[195.]
Dr
Dickman concluded that Ms L did not fall into the category of
intellectual disability that requires almost constant visual
monitoring.
According to Ms Hundermark’s report her
everyday functioning fell into the range of mild intellectual
disability. This
is comparable in some ways to the age level of
8 to 10 years. Dr Dickman concluded that in her view allowing
Ms L to walk
to a designated playground, which her family expected to
be controlled by a security firm at the resort, and which lay
approximately
50 meters in front of the chalet and was visible
from it, was an acceptable and appropriate extension of independent
activities
that Ms L had shown herself to be able to cope with.
[196.]
Ms
L’s idea was that playing alone in the park was an exciting new
step. It was undertaken with a sense of achievement.
It
was an important milestone; a new experience requiring skills
Ms L had already mastered. She knew how to get to
the
playground and back again. She enjoyed periods of self-directed
activity alone. She was appropriately careful on
play
apparatus. She knew how to share apparatus with other
children. She had some education about inappropriate touching.
Ms L had been taught that no one should interfere with her private
parts. No one should touch her body in an intimate way.
[197.]
Dr
Dickman confirmed that what Mrs Theron had observed in Ms L’s
bedroom the night after the rape constituted acute trauma
reaction.
Perhaps partly asleep, partly awake, Ms L was reliving the trauma.
That is a documented reaction to trauma
in people with or without
disability. The description given by Mrs Janse van Vuuren about
Ms L’s response to the monster
man involved an evocative
concrete technique, allowing Ms L to express herself and her anger
and distress. She showed this,
as well as her particular fear
of the hands that had hurt her. It was consistent with the
trauma reaction. Acute reaction
in layman’s terms means
being overwhelmed with distress. When Ms L was taken to Dr
Schneider for vaginal examination
she was extremely frightened and
overwhelmed.
[198.]
Following
e-mail correspondence with the Louws during 2013, Dr Dickman
concluded that Ms L had regained a level of cognitive
functioning
similar to her previous highest level prior to the rape. Some
factors still had to be dealt with, namely her
fear of teenage boys
being the main one. However she was enjoying learning again.
From Mrs Louw’s report on the
issue of Ms L considering herself
to have been crucified, Dr Dickman concluded that the family was
still processing what had happened.
[199.]
Dr
Dickman believed that the Louws were an unusual family and lived in
unusual circumstances. Mr and Mrs Louw experienced
unusual
levels of distress as a result of the rape. A lot of attention
was drawn to the case in a negative way by the authorities
in
Bulgaria where they were public figures. Having exposed the
appalling conditions in State orphanages they were publicly
attacked. They also felt an unusual level of distress because,
having saved Ms L from certain death, and having undertaken
to her
that no one would ever hurt her again, she had been raped when they
brought her to South Africa.
[200.]
The
rape adversely affected Ms L’s development. Firstly, her
parents had to pull back on the ordinary process of encouraging
her
small steps in independence. As a result of the rape they
became more protective in response to Ms L’s vulnerability
and
PTSD. In Dr Dickman’s opinion in the years following the
rape Ms L would have been more vulnerable to ordinary
adversity,
illness of a parent or having to be absent from her parent for some
reason. Ms L would have more difficulty gaining
an
understanding of sexuality and her own development as a result of the
traumatic and violent way in which sexuality was introduced
to her.
It would be mixed up with trauma and distress. This is an
enormous challenge which will continue for Mr and
Mrs Louw. Sex
education is always a challenge for caregivers of adults with
disability. Sexual trauma makes this even
more difficult.
In the circumstances above, Dr Dickman had provided for
psychotherapy for both Mr and Mrs Louw as well
as Ms L. By the
time of her testimony the fee for hour long sessions ranged from
R810,00 to about R850,00. Drugs were
not necessary in order to
treat Ms L. Nor was hospitalisation.
[201.]
Dr
Dickman confirmed that she and Mr Loebenstein had prepared a joint
minute. They agreed that Ms L was in the mild category
of
mental disability and that she had developed PTSD. Her ordinary
development had been set back a year. The experts
also agreed
that there had been considerable improvement in the symptoms over the
years; but that the remaining symptoms
required treatment.
Dr Dickman disagreed with Mr Loebenstein’s conclusion that Ms
L’s well-being would have been
protected, had their been
greater personal supervision of her by her adoptive parents on the
day of the rape incident. Dr
Dickman was of the view that the
Louws did not make a mistake about thinking that Ms L could deal with
any and all risks.
They thought (mistakenly) that they knew
what the risks were. However, they did not know about the risk
that eventuated.
[202.]
Dr
Dickman’s report suggested that Mr Loebenstein had interviewed
Ms L and her parents with a view that establishing whether
the
parents were negligent. In his report Mr Loebenstein especially
took exception to this. He did not expressly say
they were
negligent. Dr Dickman and Mr Loebenstein have different
theoretical orientations and therefore different approaches
to
therapy necessary for Ms L. Dr Dickman believed that either or
both approaches could be helpful. Whilst they agreed
that Ms
L’s social every day functioning was most important, and fell
into a mild category, Dr Dickman pointed out that Ms
L had only
learnt to speak at the age of 10. By the time she was 18 she
could communicate, albeit imperfectly, in two languages
and had
developed a functional understanding of a third (Bulgarian).
[203.]
In
cross-examination counsel conceded that there was not much
disagreement. Dr Dickman had expressed the view that Ms L was
intellectually capable of making a connection between the assault on
her body and the crucifixion of Christ. It was put that
Mr
Loebenstein would disagree. Dr Dickman replied that unless one
disbelieved Ms L’s parents, Ms L in fact had made
the
connection. This accorded with Dr Dickman’s
experience of working with people with this level of disability.
If Ms L could make that connection – so it was put – she
would be receptive to more conventional psychotherapy than
what the
two experts had agreed upon. In response Dr Dickman stated that
adapted psychotherapy had been applied to people
with disabilities
internationally since the 1980’s. She disputed that she
had at any stage denied that regular psychotherapy
would be of
assistance to Ms L when appropriately adapted. Ms L had grown
up in a religious environment. She had heard
the story of the
crucifixion repeatedly. She was a young woman trying to make
sense of what happened to her. Her disability
manifested in the
fact that she could not differentiate her experience from that
story. She used it to try and make sense
of what happened to
her. It showed her disability, and not the other way around.
[204.]
Dr Dickman
confirmed that Ms L had reached her previous level of highest
intellectual ability. She seemed to have recovered
from PTSD.
She is significantly disabled, although this is mild. She has
significant deficits. She is therefore
going to be limited
academically. However, one could not know what opportunities
she was going to have to learn and develop
and therefore no forecast
can be made. Dr Dickman did not agree with Mr Loebenstein that
Ms L had progressed from (PTSD)
to a stage where she no longer
suffered from a fully-fledged disorder, with little or no
intervention required from professionals
or treatment. What Ms
L needed after her trauma was love and support, safety and
reassurance. She had received plenty
of that. Eventually
it was necessary to make Ms L feel safe and secure, rather than rush
in with treatment. The symptoms
would be responded to as they
develop. Once it became clear that Ms L suffered from a
clinical syndrome, PTSD, therapy was
required. Alerting Ms L’s
parents to the importance of their own states of mind and dealing
with it via Susan Manson
amounted to intervention.
[205.]
Dr
Dickman conceded that 7 years after the rape her initial
recommendation of 104 sessions of psychotherapy was no longer
necessary.
Ms L had done very well. Dr Dickman felt that
her parents would also benefit from ongoing support. However
she conceded
that they too seem to be better. In the
circumstances Dr Dickman believed that less therapy was required
for Ms L than
was originally recommended, but that the family still
needed support to deal, for example, with Ms L’s sexual
development.
Dr Dickman, disputed Mr Loebenstein’s
conclusions with regard to the number of sessions required. She
pointed out that
the experts came from different theoretical
orientations. Dr Dickman’s approach would be to accompany
the family through
the challenges that will be coming with her
ongoing development. Ms L is a young woman. She has to
learn about her
sexuality. It would be necessary to support her
parents and make sure that their distress did not get in the way of
Ms L’s
development when they had to talk about something that
might be too painful for her parents to manage.
[206.]
It
was then put to Dr Dickman that facilities in Sofia are not readily
available for the treatment that Dr Dickman had recommended.
It
would therefore have to take place during the limited periods that
the Louws spent in South Africa Dr Dickman replied that Ms
L would
still need treatment for PTSD in two areas. Firstly, she
remained cautious about teenage boys. She needs help
with
identifying dangers; namely, that there are other kinds of dangers
besides teenage boys. Secondly, they would need to
work through
what happened and find a way to do so that was appropriate to her.
This could not necessarily be left to her
parents because it was
painful for them too. A way would have to be found to help Ms L
in her own language, within her own
conceptual limitations. She
had not had that sort of therapy. Dr Dickman emphasised that
the therapeutic exercise she
was describing would be very painful for
the parents to carry out. She conceded that Ms L had not
received such therapy for
a number of years.
[207.]
The
cross-examination then dealt with the points of agreement between Dr
Dickman and Mr Loebenstein. Counsel referred to the
latter’s
opinion that Ms L would not have had the social judgment to
understand the question and intention of the boys who
led her away
from the play area. Dr Dickman agreed with part of
Mr Loebenstein’s statement, to the effect that
Ms L’s
disability was mild. This did accord with the definition in the
fifth edition of the DSM5; This was to
the effect that compared
with typically developing age mates, the person with mild
intellectual disability could be immature in
social interactions e.g.
there may be difficulty in accurately perceiving peers social cues.
Accordingly Mr Loebenstein had
concluded that Ms L “
would
not have had the social judgment to understand the question and
intention of the boys who led her away from the play area
in the
resort in Ceres.
”
Dr Dickman agreed with this proposition in relation to what is set
out in the DSM.
[208.]
The
key point of disagreement between the experts is that Mr Loebenstein
went on to say “
and
greater personal supervision would have vouched her safety”
.
The basis of the Municipality’s plea in the alternative was set
out by their counsel in cross-examining Dr Dickman.
Greater
supervision in Mr Loebenstein’s report did not mean
constant supervision of Ms L physically. With constant
supervision of the play area to see if other people entered it such
people would not have interacted with her and exploited her
disability. Dr Dickman replied that this was way outside her
knowledge of expertise. It is a matter for the court to
decide. Dr Dickman denied that she had said that Ms L was
vulnerable to be exploited by other people. That was not
Mrs
Louw’s concern. The concern was rough and tumble.
[209.]
Dr
Dickman did not dispute that the Louws were aware that Ms L had a
limited understanding of social situations and social judgment
and
was immature for her age and at risk of being manipulated by others.
However, Dr Dickman pointed out that this was not
decisive of the
question. In our our society vulnerable people are entrusted to
situations all the time e.g. children to
school. Those risks
are accepted. The Louw’s accepted the small risk that Ms
L might fall off a piece of play
equipment in the park. They
did not consider a predatory member of the public entering the
resort, and posing a risk.
Dr Dickman also pointed out that the
Louws would not have let Ms L go to an ordinary public playground on
her own. That is
how they treated her differently from a
non-disabled person. Only because they were at the resort and
Mrs Louw had checked
out possible dangers did they take the
opportunity to allow her to play independently. Dr Dickman was
of the opinion that
the Louws had gone to resort so that there would
be some freedom of movement with Ms L. They examined the risks
there.
They took her disability into account by making sure
that she could have an independent play experience in what they saw
as a protected
place. The fact that Ms L may not have played
independently the day before at the park did not alter Dr Dickman’s
conclusions.
Playing in this park alone was a new thing for Ms
L to do. Overall it was an extension of her independent
activity.
[210.]
Dr
Dickman stated that it was professionally unpopular to draw an
equivalence between an adult with a disability and a child.
It
was misleading because one had to be aware of what the particular
deficit was. However an equivalence is sometimes drawn
in a
very general way between mild and intellectual disability and the age
range from about 8 to 12. Dr Dickman admitted
that the
Louws would have to take the same precautions with Ms L as they would
with a normal child between 8 and 10 years old.
Ultimately Dr
Dickman conceded that if Ms L had been more closely supervised her
chances of being raped would have been less.
[211.]
In
my view the conclusion that the greater supervision of Ms L would
have vouched her safety is ambiguous for present purposes.
The
permanent presence of Ms L’s parents at the play park might
have done so. Anything less might not have vouched
her safety.
However, the proposition is unrelated to Ms L’s mental
condition. It amounts to a proposition that
if Ms L was
permanently supervised by a physical presence of her parents the
opportunity for raping Ms L might not have presented
itself.
The same applies to the presence of security guards.
Defendant’s proposition does not address the issue
pleaded,
namely that some characteristic of Ms L rendered her vulnerable to
rape in a manner which would attract liability to her
parents for
letting her play alone.
[212.]
Under
re-examination Dr Dickman explained that whereas Mr Loebenstein
was of the opinion that conventional psychotherapy did
not work with
people with disabilities, her understanding from her own experience,
collegial experience and literature was that
since the 1980’s
conventional psychotherapy had been adapted. People at Ms L’s
level could engage in psychotherapy
more similar to regular
psychotherapy. Techniques are appropriate to someone who has a
disability. In relation to the
number of therapy session Ms L
requires Dr Dickman stated that it would depend on how much Ms L
engaged with the process.
As she moved more into her identity
as a young woman, as Dr Dickman believed she was doing, she would
benefit from 20 to 30 sessions
over a period of time. Dr
Dickman also advocates support for Mr and Mrs Louw.
[213.]
Mr
Loebenstein’s testified as follows. His approach to
future therapy for Ms L is that she requires a behaviourally
orientated regime that will reduce her safety-seeking behaviour and
give her greater functioning. He believes that Ms L does
not
have the cognitive resources for more conventional psychotherapy. He
agreed with Dr Dickman, however, that adapted psychotherapy
would be
the treatment of choice. His proposed treatment would emphasise
behavioural change which would influence her feelings
and even her
thinking of what had happened to her. She should be taught to
trust her environment and so reduce her anxiety.
Eight to ten
sessions would constitute sufficient intervention.
[214.]
Relying
on the DSM Mr Loebenstein pointed out that mild mental disability may
lead to limited understanding of risk in social situations.
He
opined that this could “
possibly
have been a factor in the incident.
”
Ms L would probably have been at risk from any person at the play
park, according to the general proposition in the
DSM. Mr
Loebenstein therefore opined that Ms L’s wellbeing would have
been protected had there been greater personal
supervision by her
parents. However, Mr Loebenstein agreed with Dr Dickman that
encouraging Ms L to act independently was
a good thing.
[215.]
Under
cross-examination Mr Loebenstein conceded that in the factual
circumstances of Ms L’s abduction, the fact that she suffered
from mild mental disability played no role. Mr Loebenstein was
then presented with a transcript of cross-examination of Mrs
Louw
conducted by the perpetrator Mr O at his trial. The gist of his
proposition was that the perpetrators though that because
Ms L was
friendly she might have sex with them without protect. However,
she did protest so they raped her. Mr Loebenstein
also conceded
that therapeutic support for Mr and Mrs Louw would be helpful for Ms
L.
DAMAGES
[216.]
Plaintiff
has claimed certain future medical and psychotherapy expenses for
Ms L. He has also claimed R250 000,00
in respect of
contumelia
and R750 000,00 for general damages for shock, pain and
suffering and disability in respect of the enjoyment of amenities
of
life.
[217.]
Dr
Dickman and Mr Loebenstein agreed that Ms L would still need
treatment for PTSD. Ms L needs to work through what has
happened
to her and find a way to go forward. She needs to be
assisted in understanding sexuality and her own development.
This
cannot be left to her parents. Mr Loebenstein conceded
that she would benefit if her parents also undergo therapy. The
order below will provide for this. It was not in dispute that
the cost of hour long therapy sessions would range from R810,00
to
R850,00. Dr Dickman’s contention was that Ms L would
benefit from 20 to 30 sessions over a period of time.
Mr Loebenstein said that 10 was sufficient. If adapted
psychotherapy would be the treatment of choice it should be tried.
In the circumstances I conclude that it would be appropriate to
provide for 26 sessions for Ms L and 12 sessions for Mr and
Mrs
Louw (possibly over two years when the family are in South Africa.)
I would therefore award the sum of R30 780,00
for future medical
costs.
[218.]
Because
the heads of damage, claimed for contumelia as well as shock, pain
and suffering (etcetera), were the consequence of one
and the same
omission I shall attempt a holistic process and make a single
award.
[46]
In
F
v Minister of Safety & Security
[47]
Meer
J noted that there is a dearth of cases in which damages have been
claimed flowing from rape, and that this is an “
anomaly,
given the disquieting incidence of high incidents of rape in our
society
”.
No precedent has been presented to me in relation to rape of a
mentally disabled person. I place little reliance
on awards
made prior to South Africa’s democracy because the entrenchment
of personality rights in the Bill of Rights has
given these a higher
status than previously existed. In my view there is
constitutional justification for reassessing principles
relating to
quantum when a delict strikes the foundational constitutional values
of our society as it does in this case.
[48]
[219.]
In
F
v Minister of Safety & Security
[49]
the Plaintiff, a 13 year old girl was assaulted and raped by a
policeman after he offered her a lift home in a police vehicle.
She suffered chronic post-traumatic stress and depression. Her
hair had been pulled and her head was hit against the car
several
times. She was hit in the face and both cheeks. She was
thrown on the ground and kicked in her stomach, held
by the throat
and throttled. Her head and face were swollen. There was
a tear at the right side of her lip, although
it did not need to be
stitched. There were bruises on her arms and body and tearing
and bleeding in the genital area from
the rape.
Damages
for contumelia in the amount of R300 000,00 and R200 000,00
for pain and suffering were awarded.
[220.]
I
was also referred to the unreported matter of
Babalwa
Nagqala v Minister of Safety & Security
[50]
in which a 22 year old woman was raped by a policeman in his office.
She was awarded R225 000,00 in respect of damages
for contumelia
and R150 000,00 pain and suffering. These damages were
significantly increased because the rape was committed
by a police
officer at the police station while the victim was in police
custody. In
Mnasi
v Minister of Safety & Security
[51]
a
plaintiff aged 25 was unlawfully arrested and detained by two police
officials, and assaulted and raped by a police officer whilst
she was
in detention. A court awarded R425 000,00 in respect of
contumelia in 2014. The present value of the award
is
R451 765,00.
[221.]
In
awarding a globular amount of damages I take into account that the
act of rape was not perpetrated by the Municipality or its
servants.
Nor was intention attributable to any of them. However, as an
organ of state, the Municipality is required
to be accountable and
responsive
[52]
, and to take
responsibility for its omissions. It had access to the police
docket and the record of proceedings at the criminal
trial of the
perpetrators. These would have indicated that the genitalia of
Ms L were torn and bloodied and that the DNA
of a perpetrator was
found there. The Municipality persisted nevertheless, until the
fifth day of the trial (24 February
2016), in asserting the
denial in its original plea that Ms L had been raped. When the
Municipality had been requested, in
a Rule 37 pre-trial conference
(during January 2015) to admit the rape, it was only prepared to
admit that the perpetrators were
aged 15 and 13 respectively, that
they pleaded guilty and were found guilty and convicted of rape.
The Municipality therefore
placed a burden on Ms L to prove that she
was raped when it was apparent that she had been. This despite
Ms Hundermark’s
caution that Ms L should not be called upon to
testify and that the experience would traumatise her. The
approach of the
Municipality added insult to her injury and it
further violated her dignity.
[53]
A remedy for injury should be given when words or conduct involve
degradation or an element of insult.
[54]
This translates into damages.
[222.]
A
defendant in delict must take its victim as it finds her. The
circumstances of Ms L differ considerably from the cases that
the
court has been referred to. The relevant facts are set out in
the reports of Ms Van Niekerk, Ms Hundermark and Ms
Wattel.
The nurture of Ms L in Bulgaria was such that at the age of 6 or 7
she weighed 7.3kg. At that age she had to
be taught to sit up,
crawl, walk, talk and feed herself. She suffered from severe
sensory motor deprivation because she had
never been touched and had
been confined to a cot so small that she could not turn over.
During the next seven years with
love, therapy and attention, she
developed her faculties and reached the level of a grade 1 child.
She could participate
in athletics and play football. When she
was raped her development was set back a year. She was reduced
to her childhood
babble and a trance like state. She was pushed
into a pit of chronic post-traumatic stress disorder. She was
afraid
to venture out of doors or to be in the company of older male
children. At the time of trial she was still not her previous
self. Ms L perceived her experience as crucifixion. She
has never forgotten it.
[223.]
While
the therapy described above may assist her rehabilitation and provide
a tolerable reconstruction of what she experienced she
has
nevertheless had to endure the confused traumatic burden of her
experience until the present. The cases to which I have
been
referred did not have to address loss of amenities of the above
nature or extent in the form of a retardation of development.
They do not address the delicate situation of
injuria
by
rape on a mentally disabled person. To follow the awards
granted in previous cases without more would ignore this.
Those
awards did not deal with the appropriate value to be placed upon the
loss of dignity of a victim such as Ms L. This
court is bound
to do so.
[224.]
In
the circumstances the appropriate award of damages for contumelia,
shock, pain, suffering, and disability in respect of her enjoyment
of
amenities of life is R750 000,00.
[225.]
Costs
must follow the result.
[226.]
In
all the circumstances I make the following order:
[226.1]
The
Municipality shall pay damages to the plaintiff in the amount of
R780 780,00, together with interest thereon from date
of
judgment
[226.2]
The
Municipality shall also pay plaintiff’s costs of suit,
including the costs of the Rule 21(4) application which stood over
for later determination; such costs to include the costs incurred in
the employment of two counsel.
[226.3]
The
Municipality shall also pay the third parties costs of suit.
___________________
DONEN
AJ
[1]
See s1 of the Constitution
[2]
See
Andrea Durbach;
Toward Repatative Transformation. Revisiting the Impact of
Violence against Women in a Post-TRC South
Africa: International
Journal of Transitional Justice, 2016, 0, 1-22 doi: 10. 1093/ijtj
017
[3]
See s 7(2) of the Constitution
[4]
See s8(1)
[5]
See s39(2)
[6]
See,
Carmichele
v Minister of Safety & Security & Another (Centre for
Applied Legal Studies intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at 964E – 965B;
the
reference therein to the import of South Africa’s ratification
of the
Convention
on the Elimination of All Forms of Discrimination Against Women; and
see paragraphs [44];[45] and [49]
.
[7]
See
Rail
Commuters Action Group & Others v Transnet Ltd t/a Metrorail &
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC)
.
[8]
For convenience this is referred to below as the Sexual Offences
Amendment Act
[9]
See
s. 2
of
the
Local Government: Municipal Systems Act No. 32 of 2000
[10]
See
Oppelt v Department of
Health
2016 (1) SA 325
(CC) para 344
[11]
See too the
principles set out in
Ewels
v Minister of Police (1975) (3) 590 AD
at
597A-H
;
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 317 C – 318I;
Knop Johannesburg City Council
1995 (2) SA 1
(AD) at 27D/E to H/I;
The Republic of South Africa v Basdeo and Another
1996 (1) SA 355
(A) at 367E-H
[12]
The
Municipality also pleaded that it had employed an independent
contractor, Ceres Alarms, to provide access control and security
at
the resorts; and that Ceres Alarms, and not the Municipality,
owed Ms L a duty of care; and that and its negligence
contributed to
the damages suffered by Ms L. This plea was not persisted with
during the trial.
[13]
See section 9(3) of the Constitution
[14]
See Section 9(2) of the Constitution
[15]
Compare
Teddy Bear Clinic v
Minister of Justice
2014 (2) SA 148
(CC)
[16]
See
Teddy Bear Clinic v
Minister of Justice
2014 (2) SA 148
CC para [52].
[17]
See
Constitutional Law of
South Africa: Woolman et al: 2
nd
Ed Vol 13 36-20(b)
[18]
Per Ackermann J in
Ferreira
v Levin
1996 (1) SA 984
(CC) para [49]
[19]
See section 39(1)(b) of the Constitution.
[20]
http://www.un.org/disability/documents/maps/enable
map.jpg
[21]
This allows
parties to recognise the competence of the Committee and the rights
of persons with disabilities to consider complaints
from
individuals.
[22]
See Advisory Opinion of the International Court of Justice on the
Legality of the Threat of Nuclear Weapons ICJ Reports 1996
p.226 at
[70].
[23]
See Article 38.1(b) of the Statute of the International Court of
Justice
[24]
See s.232 of the Constitution
[25]
See Article 1 of the Convention
[26]
See Article 8 of the Convention
[27]
See Article 12 of the Convention
[28]
See Article 19 of the Convention
[29]
See
Teddy Bear Clinic Case
2014 (2) SA 168
para [41]; and see
section
36(1) of the Constitution and the relevant factors mentioned there
viz: (a) the nature of the rights; (b)
the
importance of the purpose of the limitation; (c) the nature
and extent of the limitation; (d) the relation between
the
limitation and its purpose; and (e) less restrictive means to
achieve the purpose.
[30]
See the Teddy Bear Clinic Case para [39]
[31]
See
R v K
1958
(3) SA 420
(A) at 423 B-C
[32]
See
R
v Z 1960(1) SA 73 9(A) 745E
[33]
See
R v K
supra
at 421
[34]
Dr Dickman’s evidence is dealt with further below.
[35]
See
S v Williams 2008 (1)
SA SACR 65 (CPD) paragraphs [4] and [6]
[36]
This supervision is dealt with below
[37]
For the Plaintiff to call the executive head of the Municipality
would be manifestly unhelpful to its case. See
Maize
Board v Hart
2005 (5) SA 480
(Mr O)
[38]
See
Rex
v Blom
1939 AD 188
at 202 – 203
[39]
This e-mail constituted an admission not only that the security
service at the resort was incompetent but also that Ms Bosman
at
least had been aware of serious inadequacy for eighteen month before
Ms L was raped.
[40]
1966 (2) SA 428
(AD) at p. 430
[41]
See
Ngubane v South African
Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(AD) at 776 H-J
[42]
See
Minister of Finance and
Others v Gore NO
2007 (1)
SA 111
(SCA) para [33]
[43]
2002 (6 SA 431
(SCA) para [25]
[44]
See
Lee v Minister for
Correctional Services
2013 (2) SA 144
(CC) paras [46] and [47]
[45]
See
Langley Fox Building
Partnership (Pty) Ltd v De Valence 1991 (1) SA (AD) at p. 197 FG
[46]
Compare
April v Minister of
Safety & Security
[2008] 3 All SA 270
(SE) at para 18
[47]
2014 (6)
SA 44
WCC at para 56
[48]
See
The Law of South
Africa
2
nd
Ed. Volume 8, Part 1: Delict at para 22 in relation to assault
on constitutional values.
[49]
Supra
[50]
(ECG
Case Number: 676/2011
,
delivered on 18 June 2012)
[51]
2015 (7K9) QOD 18 (ECG)
[52]
See S152 (1)(a) of the Constitution and see
Lee’s
case (supra) para [70]
[53]
Compare
S v M (1999)) SACR 664
(CPD) at 673 f to h
[54]
See
Mhlongo
v Bailey and Another
1958 (1) SA 370
at 372.