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[2020] ZASCA 50
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Minister of Police v K (403/2019) [2020] ZASCA 50; 2020 (2) SACR 1 (SCA); [2020] 3 All SA 38 (SCA) (6 May 2020)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 403/2019
In
the matter between:
THE
MINISTER OF
POLICE
APPELLANT
and
MS
K
RESPONDENT
Neutral
citation:
The Minister of Police
v K
(Case no 403/2019)
[2020] ZASCA 50
(6 May 2020)
Coram:
MAYA P and ZONDI and DLODLO JJA and KOEN and GORVEN AJJA
Heard
:
2 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to
be 10h00 on 6 May 2020.
Summary:
Claim for aggravated psychological damages suffered by rape
survivor arising from alleged failure of police to conduct proper
search
for her and to conduct reasonably effective investigation into
crimes perpetrated against her – negligence, causation and
wrongfulness elements not established.
ORDER
On
appeal from:
Eastern Cape Division of the High Court, Port
Elizabeth (Sephton AJ, sitting as court of first instance): judgment
reported
sub nom K v Minister of Safety and Security and Others
[2018] ZAECPEHC 82;
[2019] 1 All SA 415
(ECP);
2019 (1) SACR 529
(ECP)
1
The appeal succeeds with costs, including the costs of two counsel
where
employed;
2
The order of the court a quo is set aside and is substituted with the
following:
‘
The
plaintiff’s claim against the defendant is dismissed with
costs, such costs to include:
(i)
the costs of two counsel;
(ii)
the costs in obtaining medico-legal reports from Dr Louise Olivier
and Dr Franco
Colin, as well as their reasonable qualifying,
travelling and accommodation expenses (if any) in connection with the
trial;
(iii)
the costs of one pre-trial inspection in loco attended by counsel;
(iv)
the costs in obtaining exhibits “A1” to “A6”;
(v)
the costs of the opposed application brought by the plaintiff before
Mageza AJ for
the separation of the issues of the quantum of damages
and causation from the other issues on the merits.’
JUDGMENT
Zondi
JA (Maya P and Dlodlo JA and Koen and Gorven AJJA concurring)
Introduction
[1]
In
State
v Chapman
[1]
Mahomed CJ stated as follows:
‘
Women
in this country are entitled to the protection of [the rights to
dignity, privacy and integrity of the person]. They have
a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work,
and to enjoy the peace
and tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes
the quality and
enjoyment of their lives’.
This
was said in the context of an appeal against conviction and sentence
imposed on the appellant, who had brutally raped the complainant
in
that case. Unfortunately, in this case what happened to the
respondent, Ms K, is the antithesis of the views and sentiments
expressed by Mahomed CJ in
Chapman
.
Factual
background
[2]
Ms K was abducted, robbed of her personal belongings and sexually
assaulted by an
unknown man or men on 9 December 2010 at about 14h30
at King’s Beach, Port Elizabeth. This was shortly after she had
purchased
a house for her mother in Summerstrand, Port Elizabeth, a
dream she had always wished to achieve. She was due to take a flight
back to Johannesburg, where she stayed, at 17h00 that day. Since she
had time to spare before catching her flight, she decided to
spend
her free time at King’s Beach, Port Elizabeth. She parked her
vehicle at the parking lot and thereafter walked to the
beach. As she
enjoyed her afternoon walk, Ms K was suddenly confronted by an
unknown man. She tried to fight him off but he overpowered
her.
Thereafter her assailant assaulted her, robbed her of her personal
belongings and dragged her into the bushes. In the bushes
Ms K, on
the instruction of her assailant, took off her clothes which he used
to blindfold her. He kept her captive in vegetation
on the sand
dunes. Her assailant raped her repeatedly for the entire duration of
her captivity, until 06h00 on 10 December 2010,
when she managed to
escape from him. Ms K ran to the beach in search of help. Eventually
she got assistance from a group of men
who were jogging along the
beach. One of the joggers, Mr Britz, escorted her back to the parking
lot and then to the Humewood police
station, where she opened a case
of abduction, assault, rape and robbery arising from the incident.
[3]
Concerned about her failure to return home in time for her flight
back to Johannesburg,
her cousin, Mr M, at the request of Ms K’s
mother, reported her missing at the local police station at
approximately 19h00
on 9 December. He provided the police with
details of the vehicle she was driving when she left home on that
fateful day. That
information was relayed to the South African Police
Service (SAPS) radio control room, emergency number, 10111. Ms K’s
vehicle
was discovered by SAPS members at the parking area of the
beach at about 23h30 that night. The vehicle had been broken into and
its contents looted. Ms K was nowhere to be seen. A suspect who was
found in possession of some of her belongings was arrested
shortly
thereafter, but he could not be linked to the crimes of abduction,
assault and rape perpetrated against Ms K.
[4]
A police search was launched, which included the use of a trained
search and rescue
dog and a helicopter. These searches produced
nothing and were aborted in the early hours of the morning of 10
December. The offences
which were perpetrated against Ms K were
investigated by the police, but nothing came of it. Her assailant/s
was/were never found.
There is no doubt that Ms K suffered a great
deal of trauma and stress following the highly severe traumatic
events of that night.
[5]
In consequence, on 14 November 2013, Ms K instituted action against
the Minister of
Safety and Security (the appellant), along with three
individual members of the SAPS involved in the investigation of her
case,
in the Eastern Cape Division of the High Court, Port Elizabeth.
She claimed damages for the harm she allegedly suffered as a result
of the relevant SAPS members’ failure to conduct an effective
search for her and to find her shortly after 23h30, and thereafter
to
conduct a reasonably effective investigation into the crimes
perpetrated against her. She contended that these failures by the
SAPS members aggravated her psychopathology. In other words, her
complaint was about the quality of the search that was undertaken
by
the police to find her and the subsequent investigation that was
carried out by the police to find her assailant/s. In her summons,
Ms
K cited the Minister of Safety and Security as the first defendant
and three SAPS members, who were involved in the investigation
of her
case, as the second, third and fourth defendants respectively. I
shall refer to them collectively as ‘the police’
or ‘the
defendants’.
[6]
The trial before the high court proceeded on a separated basis, the
court having ordered,
by agreement between the parties, that the
issues relating to the appellant’s delictual liability were to
be determined first,
while those relating to the quantum of Ms K’s
damages would stand over for later determination. The matter was
heard by Sephton
AJ, who found for Ms K. The learned judge found that
the SAPS was under a legal duty to conduct a reasonably effective
search for
Ms K during the night of 9 to 10 December 2010, and to
conduct a reasonably effective investigation into Ms K’s case
in order
to find her assailant/s. The high court concluded that the
SAPS negligently breached these duties and that this caused Ms K to
suffer additional psychopathology. Accordingly, the appellant was
held liable for 40 percent of the damages that Ms K would be able
to
prove. She further ordered the appellant to pay Ms K’s costs,
including the qualifying expenses for her expert witnesses.
Sephton
AJ nevertheless granted the appellant leave to appeal to this court
against her judgment and orders.
Pleadings
[7]
The basis of Ms K’s claim was that the SAPS owed her, among
others, the following
duties first, a constitutional duty to prevent,
combat and investigate the crimes and/or the continuation of the
crimes of assault,
abduction, kidnapping and rape, to protect and
secure Ms K and her property, and to hold and enforce the law.
Secondly, the SAPS
owed her a duty to protect her right to dignity
and to ensure that her dignity was respected and protected. Thirdly,
she contended
that the SAPS had a duty to ensure her safety and
security, as well as protect her other rights contained in the Bill
of Rights;
and fourthly, a duty to obtain information from persons
whom the police officers concerned reasonably suspected of having
committed
the offences or who could provide evidence as to the
commission or suspected commission of the offences. Finally, Ms K
contended
that the SAPS had a duty to exercise the powers and perform
the duties conferred on or assigned to them in a reasonable manner.
[8]
Ms K contended that the SAPS unlawfully and/or wrongfully and
negligently breached
its duty to protect and secure her and her
property, and to prevent and combat the continuation of the crimes of
assault, abduction,
kidnapping and rape between 23h00 on 9 December
2010 until 06h00 the following morning, by failing to search the area
in the vicinity
of the car park at King’s Beach, particularly
the sand dunes. In the alternative, Ms K pleaded that in the event of
a search
having been conducted by the SAPS, it failed to do so with
the skill, care and diligence required of reasonable police officers
in the circumstances.
[9]
Ms K then listed the various respects in which she contended that the
SAPS had breached
its duties. As a result of these breaches, she
continued:
‘
20.1
Plaintiff’s abductor/s continued to rape her after 23:00;
20.2
Plaintiff was not found in the clearing of the vegetation in the sand
dunes approximately 20 metres
from the beach or shoreline, at or
shortly after 23:00;
20.3
The abductor/s and/or rapist/s and/or suspects were not apprehended
at or shortly after 23:00;
20.4
The abductor/s and/or rapist/s and/or suspects were not apprehended
on the morning of 10 December 2010;
20.5
The abductor/s and/or rapist/s and/or suspects were not apprehended
after 10 December 2010;
20.6
The abductor/s and/or rapist/s and/or suspects were not identified
and/or plaintiff was unable to identify
them;
20.7
The plaintiff herself has had to conduct the investigation and
collect evidence herself;
20.8
The plaintiff suffered further physical injury, post-traumatic stress
disorder and/or depression;
20.9
The plaintiff has been unable to return to work to run her Investment
Brokerage consultancy since December
2010.
21.
As a result of the depression resulting from the police’s
negligent handling of the
case, the plaintiff is undergoing
psychiatric treatment and has to undergo future psychiatric treatment
for an indefinite period
of time.’
[10]
In short, her case is that: (a) had the police searched for her, or
carried out a reasonably
effective search, they would have found her
and stopped the continuation of the rape shortly after 23h00 when
they arrived at King’s
Beach; and (b) had the police conducted
a reasonably careful, diligent and skilled investigation on the
morning of 10 December
and thereafter, she would not have suffered
the full extent of the injury of which she complained.
[11]
The defendants did not deny being under the duties alleged by Ms K.
What they denied was that
the police officers, who searched for Ms K
and those that investigated the criminal case acted negligently or
unlawfully. They
pleaded that both the search for Ms K, in difficult
circumstances and terrain, as well as the subsequent investigation of
the crimes
perpetrated against her, were carried out with due
diligence and regard to the trauma she had allegedly suffered. The
defendants
denied specifically that Ms K suffered any ‘further
physical injury, post-traumatic stress disorder and/or depression’
as a result of any breach of duty by the SAPS. They further denied
that Ms K had been unable to return to work in any capacity
since
December 2010 as a result of any breach of their lawful duties. As
regards causation the defendants denied the existence
of a causal
link between the alleged conduct of the police and any mental or
psychiatric condition, or aggravation thereof, suffered
or being
suffered by Ms K.
[
12]
I must point out that although Ms K pleaded that she was held in the
area in the vicinity of the
car park, which was the basis on which
the trial was conducted, on 26 July 2018 her counsel informed the
trial court that Ms K
was, in fact, held at the point marked ‘F2’
on the map, the area within the ‘clump of bushes’. This
area
is some 700 metres north of the car park, close to the northern
fence of the harbour. This late confirmation did not prejudice the
police in the conduct of their defence.
[13]
In the joint minute dated 18 July 2018 the experts, Dr P F Colin, Dr
L Olivier and Mr T Reynolds
reached an agreement on the following
points regarding the source and extent of Ms K’s psychological
and psychiatric sequelae:
‘
1.
We agree that we stand by our respective reports compiled after
examination of [Ms
K] and submitted to the Honourable Court.
2.
We agree that:
a.
There was no evidence of premorbid pathology;
b.
[Ms K] has been severely traumatised by a prolonged and
life-threatening incident
occurring over 9/10 December 2010
(hereafter “the incident”). She sustained serious
psychological and psychiatric sequelae
due to the incident. This has
led to serious functional impairment in social and occupational
domains;
c.
Regardless of our various psychiatric and psychological diagnoses
made (and reported
on in our respective reports), these will not
impact on the matter at hand before the court, as the outcomes remain
similar;
d.
The prolonged life-threatening trauma of the incident (as described
in para 2b)
cannot be divided into subunits that are quantifiable
with any level of psychological or psychiatric validity, as was also
testified
to by Prof Subramaney;
e.
From a psychological and psychiatric point of view, the prolonged
life-threatening
incident carries the predominant causative weight in
the psychiatric illness diagnosed in the case of [Ms K];
f.
We cannot comment on the quality of the SAPS investigation into [Ms
K’s]
case: itis a matter before the court;
g.
[Ms K’s] subjective experience of the quality of the SAPS
investigation
(amongst other factors) contributes to, maintains and
aggravates the psychiatric illness;
h.
Regardless of the diagnoses made respectively, outcomes, cost and
prognosis from
a psychological and psychiatric perspective remain
similar;
i.
The prognosis of ever returning to a premorbid (before falling ill)
level
of functioning is poor. The final outcome can only be
determined after comprehensive treatment has been given. We note the
fact
that some of her premorbid potential remains intact;
j.
The civil litigation is a contributing factor to the poor treatment
outcomes
to date.
3.
Dr’s Colin and Olivier reiterate the opinion that the civil
action was
initiated by [Ms K].
4.
Mr Reynolds notes the symptoms reported in the various expert
reports.’
[14]
It is not in dispute that there was a duty on the police to search
for Ms K shortly after 23h00
on 9 December 2010 after becoming aware
that she was missing, and to investigate Ms K’s allegation that
she had been abducted,
held hostage and raped on 9 and 10 December
2010. This is so because the State has a general duty to protect
members of the public
from violations of their constitutional rights.
The constitutional obligations to prevent crime and to protect
members of the public,
particularly the vulnerable, such as Ms K,
must enjoy some prominence.
[2]
Ms K has the constitutional right to freedom and security of the
person, provided for in s 12(1) of the Constitution. She also
has the
constitutional right to have her inherent dignity respected and
protected.
[3]
[15]
These are rights which the State, through its agency (the SAPS), is
under a constitutional obligation
to respect, protect, promote and
fulfil.
[4]
The Constitution
provides for the establishment of the Police Service in s 205, which
reads in relevant part:
‘
(1) The national
police service must be structured to function in the national,
provincial and, where appropriate, local spheres
of government.
(2) National legislation
must establish the powers and functions of the police service and
must enable the police service to discharge
its responsibilities
effectively, taking into account the requirements of the provinces.’
[16]
The objects of the police service are stated in s 205(3):
‘
[T]o prevent,
combat and investigate crime, to maintain public order, to protect
and secure the inhabitants of the Republic and
their property, and to
uphold and enforce the law.’
[17]
Accordingly, the issues are, first, whether the police breached their
duty
[5]
to search, by failing to
search for Ms K in the sand dunes or, if they searched the sand
dunes, whether they did so negligently;
and, secondly, whether they
breached their duty by failing to investigate Ms K’s criminal
case. This being a claim founded
in delict, in order to succeed, Ms K
had to establish the elements of delict,
[6]
namely, conduct; unlawfulness or wrongfulness; fault; damage; and
causation.
Negligence
[18]
I shall start with negligence. The question is whether the actions of
the relevant SAPS members,
during the search for Ms K and the
subsequent investigation of her case, fell below the standard
reasonably expected of them. Put
differently, the legal issue to be
adjudicated is whether the search and the investigation were
conducted negligently.
[19]
The test for negligence was set out by Holmes JA in
Kruger
v Coetzee
[7]
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
his person or property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’
[20]
In
Mashongwa
v Passenger Rail Agency of South Africa
[8]
the Constitutional Court pointed out that ‘the standard of a
reasonable person was developed in the context of private persons’
and, given the fundamental difference between the state and
individuals, ‘it does not follow that what is seen to be
reasonable
from an individual’s point of view must also be
reasonable in the context of organs of state’. The standard to
be applied
is not that of the reasonable person, but that of a
reasonable organ of state.
[21]
A reasonable organ of state is expected to ‘take reasonable
measures to advance the realisation
of the rights in the Bill of
Rights’ and the availability of resources is an important
factor when determining what steps
were available to the organ of
state and whether reasonable steps were in fact taken.
[9]
It is therefore necessary for the organ of state ‘to present
information to the court to enable it to assess the reasonableness
of
the steps taken.’
[10]
Search
[22]
As I have already stated, the police used a trained search and rescue
dog to search for Ms K.
When that failed, an aerial search was
conducted. Warrant Officer (W/O) Gerber testified in relation to the
manner and pattern
of the search that he conducted using his search
and rescue dog named Kojak, which he handled. He arrived at King’s
Beach
parking lot at about 00h40. He was met at the scene by W/O Rae
and Sergeant Pretorius, who briefed him about what had happened.
He
was told that a vehicle apparently belonging to Ms K was found on the
scene and that she was missing.
[23]
The first thing he did after briefing was to check the shoreline,
because he suspected that Ms
K might have drowned or committed
suicide. He searched the shoreline using a 4x4 Isuzu from where the
abandoned vehicle was found
up to the harbour wall, that is, from
south to north, to check if there was any sign of a body floating in
the water. He switched
on the blue lights and sounded the siren of
his vehicle. He found nothing and returned to the parking area.
Gerber thereupon
took his dog, Kojak, out of the vehicle and started
searching the sand dune area which he believed ‘was not
searched already
by that time’. But he did not find Ms K. He
briefed W/O Rae on his next action.
[24]
His initial search started around point ‘A’ on the map.
The dog managed to
locate only three ‘bush dwellers’
sleeping behind a sand dune. His search shifted to the western side,
up to the harbour.
He searched in a zigzag or ‘Z’
fashion, starting from point ‘D’ and then proceeding to
points ‘E’,
‘F’ and then back along the red
line to point ‘R’. The dog walked in front of him,
against the direction
of the wind so that it could catch the scent of
a human being. On that morning the wind was blowing directly east.
The dog was
fitted with a reflective harness which reflected the
light from Gerber’s torch light.
[25]
Gerber did not walk right up to point ‘E’ but followed
his dog, which was off leash
at a distance of some 20 to 25 metres,
and allowed it to proceed up to the fence near point ‘F’.
As soon as Gerber
saw the dog make contact with the fence, he called
it and worked out his next line of search, which would be in a
diagonal line.
In other words, the first leg of the search was
in a north-westerly direction and the second leg was in a
south-easterly direction.
The dog did not pick up any scent.
[26]
The third leg of the ‘Z’ started. He walked in the
direction of point ‘F’,
more or less on the edge of the
bushes, close to where the actual beach starts. The dog did reach the
fence near point ‘F’,
but Gerber did not. He was not
aware that the fence angled away at this point. The dog completed the
search and Gerber withdrew
from the area after nothing was found or
indicated by the dog. He walked with the dog back to the vehicle. Mr
Olivier, the respondent’s
dog training expert witness, conceded
that the procedure followed by Gerber in relation to the search was
correct.
[27]
Thereafter, at about 01h30 in the morning, Gerber called air support
to come and do an aerial
search for Ms K, with floodlights on the
shoreline and the waterline. A helicopter took off at 01h45 from the
base. Gerber told
the pilot where to land. Upon landing, Gerber
briefed the pilot and his assistant, W/O Smith, on the search. He was
present for
the entire duration of the helicopter search. The
helicopter crew searched the waterline first and thereafter the sand
dunes area,
that is, the whole block marked ‘A’ to ‘E’
and to ‘F’ on the map.
[28]
The pilot landed without finding Ms K. After a short debriefing with
the pilot and Smith, Gerber
left the scene and returned home. The
following morning he heard over the radio that Ms K was found. He
drove to the scene to see
for himself where she was found and to
establish what could have prevented the dog from finding her.
[29]
According to Mr Maja, when he arrived at the parking lot at about
12h00 in the morning to identify
Ms K’s motor vehicle, he found
approximately six police officers already at the scene. Shortly
thereafter, the police handler
arrived with two police dogs.
[30]
Under cross-examination Mr Maja testified that the police officers he
found at the car park when
he arrived to identify Ms K’s
vehicle were just standing around. They did not conduct any search,
at least while he was there.
His evidence was that they only started
searching with the police dog. They accompanied Gerber, who was with
the dog. This evidence
is however inconsistent with Gerber’s
evidence, who testified that he conducted the search alone with the
help of the police
dog. Gerber’s evidence in this regard was
not contradicted and the trial court found him to have been an honest
witness.
[31]
Smith, an airborne law enforcement officer with the SAPS, testified
with regard to the aerial
search which was conducted on 10 December
2010 to find Ms K. He assisted the pilot. They left the base at about
01h45 in the morning.
The journey to the King’s Beach took them
about two minutes. He operated the light known as west night sun
light and cargo
slinging. They used a Messershmitt BO-105 helicopter.
It was not fitted with a flir camera, that is, a camera with infrared
imaging
that is able to detect the heat from a person located near
it. Upon landing at the car park they received a briefing from
Gerber.
Thereafter, they started off on the shoreline and proceeded
to the bush area marked ‘D’, ‘E’, ‘F’
to ‘R’. The area beyond point ‘G’ is a
no-fly zone because it stores gas and petroleum. They flew
at about
30 to 50 metres above the ground and used the night sun light to
illuminate the area. The helicopter crew was in the air
for about 20
minutes. The area was densely vegetated and if somebody was under the
bushes it would have been very difficult to
spot them. They had to
stop the search because the mist was thickening and there was also an
incoming aircraft. The air traffic
controller requested them to land,
because two aircraft are not allowed to be in the air in the same
area at the same time.
[32]
Under cross-examination he stated that the search light covers a
wider area of about 15 to 20
metres. One can see clearly what is
happening on the ground at an altitude of 50 metres above the ground.
The light was powerful
enough to illuminate what was happening at
point ‘F2’. But they did not get close to that point
because of the restrictions.
[33]
Ms K’s evidence regarding the search was to the following
effect. She was taken to Humewood
police station by Mr Britz. She was
interviewed by a female police officer and later by W/O Andrews who
investigated the matter
until 12 December 2010. Ms K took Andrews to
the scene and pointed out the spot where she was held captive, which
she had marked
by placing a sleeping bag over shrubs on the sand
dunes. She testified that during the time she was kept captive she
never heard
a siren go off nor did she get a sense that there were
any lights in the vicinity. Neither did she hear other voices during
the
course of the night. What she heard was the sound of a helicopter
and she moved the sleeping bag to the clearing so that she could
be
spotted by a helicopter. It did not spot her as it was flying
over the shoreline and not over the spot where she was held
captive.
Findings
of the high court on the search
[34]
The high court held that the evidence demonstrated that while a
search was in fact conducted,
the actions of the SAPS officers at all
times fell below the standards reasonably expected of them. It had
this to say:
‘
None
of the SAPS officers who were present at the scene before W/O Gerber
arrived, were called to give evidence. W/O Gerber’s
is the only
evidence about what the ground crew did before he arrived. Thus, the
only reasonable conclusion that the court can
draw is that the SAPS
officers who were at the scene before Gerber arrived did not conduct
a search whilst waiting for him to arrive.
SAPS
members could have, but did not, conduct the most basic of foot
searches. Thus, they did not walk up to the beach with their
torches
and search the sparse dunes to the right of the walkway or the dunes
from point “F” to “G”. This
is the least that
would have been expected of reasonable SAPS officers in their
position.
Thus,
if the SAPS members had conducted such a search, they may have walked
right into the plaintiff and her perpetrator. Given
the restricted
size of the area, it would in all likelihood not have taken the SAPS
members longer than an hour to conduct such
a search. The plaintiff
would have been found by 01h00.
The
plaintiff was also let down by both the dog unit and the helicopter
search because they inexplicably both failed to search beyond
point
F, and did not search the area between point “F” up to
point “G”.’
[11]
[35]
The high court held that Gerber was aware of the northern boundary of
King’s Beach, namely
the palisade fence and the harbour wall,
and of the fact that there were sand dunes along this boundary. It
concluded that, despite
this knowledge, Gerber elected to end his
search when his dog reached point ‘F’. In its view, it
was a significant
and glaring omission in his investigation that he
did not search the area where Ms K was held captive, at point ‘F2’,
being a point along the northern palisade fence in the dense bushes
northeast of point ‘F’.
[36]
The high court found Gerber to have been negligent in that he stopped
his search 20 metres short
of point ‘F’. He should have
walked up to point ‘F’ to make certain that there was no
point beyond this
to search. Had he done so, the high court reasoned,
given that his trained sniffer dog was ‘off lead’ and
according
to his evidence, would have been 20 metres ahead of him, it
would probably have found Ms K. This would have been at approximately
01h00 am on 10 December 2010, thus reducing the further trauma
experienced by Ms K of hearing the helicopter fly over her, and
subsequently flying away, and further rapes over the next number of
hours.
[37]
The high court’s finding that Ms K would have been saved from
suffering further trauma,
had she been found earlier, is inconsistent
with the opinion of the experts. Their evidence made it clear that no
quantifiable
psychiatric loss or contribution to her psychopathology
could be attributed specifically to whether she should or could have
been
found earlier during the morning of 10 December 2010.
[38]
As regards the quality of the helicopter search, the high court
concluded that it fell short
of what was required from a helicopter
search and rescue operation. It did not conduct an effective search
beyond point ‘F’
on the map. I disagree with this
conclusion because, on the evidence of Smith, the decision to
withdraw from the air was based
on safety considerations and was
reasonable.
[39]
It was submitted on behalf of the respondent that the high court’s
finding regarding negligence
in relation to the search was
unassailable. Counsel for the respondent argued that there was no
evidence that the police who first
arrived at the scene conducted a
foot search at all, and none of the area ‘F’ to ‘G’.
He pointed out that
Ms K’s concession, that she was not held at
point ‘M’ but at ‘F2’, did not prevent the
police from
calling the individual officers who first arrived at the
scene to testify about what they did to find Ms K. Her concession,
the
argument proceeded, could not have affected the police’s
ability to adduce that evidence.
[40]
I do not agree with the finding of the high court on this score.
Gerber testified that, after
searching for Ms K, using a vehicle, he
‘decided the next step would be to search the sand dunes area
which was not searched
already at that time’. In this case the
police mobilised all the available resources at their disposal at
that time and in
the circumstances to find Ms K. A well-trained
search and rescue dog was used and, when it failed to find her,
Gerber called for
a helicopter search. The steps that were taken by
the police to find Ms K are, in my view, reasonable. They took all
reasonably
practicable and appropriate precautions to carry out an
effective search for Ms K. No negligence concerning the search was
proved.
Investigation
[41]
Ms K’s case was that she instituted a claim against the SAPS
because she believed that
its investigation of the crimes perpetrated
against her was poor. It is clear from both pleadings and the
evidence she adduced
that her perception of the poor police
investigation must have commenced during the latter part of December
2010 and early January
2011, when she was unable to get hold of W/O
Madubedube.
[42]
Ms K’s evidence in this regard was that she then decided
to contact Colonel Engelbrecht,
the head of the Unit to which
Madubedube was attached, to enquire about progress. Engelbrecht told
her that the docket was with
the prosecutors and that there was
nothing he could do. If she wanted to find out anything about the
case, she would have to contact
the prosecutors. She understood this
to mean that the investigation was complete. Her perception was
factually incorrect, because
at that stage the investigation was
ongoing. Ms K said she could not understand why the police could stop
the investigation before
finding the perpetrators, because the person
that the police arrested for being in possession of her personal
belongings was not
the same person who raped her.
[43]
One of the grounds upon which Ms K relied, and which was accepted by
the high court in support
of her contention that the police
investigation was poor, was the following:
‘
18.4
[The SAPS] failed to round up and/or photograph the bush dwellers
living in the sand dunes to enable the
plaintiff to identify her
abductor and/or to interview them and/or to take statements from them
on the morning of 10 December 2010
or thereafter.’
[44]
In addition, Ms K alleged further breaches by Madubedube,
the third defendant in the court below
,
in that he:
‘
19.2.2. failed to
obtain CCTV footage from the municipal street cameras and instead
indicated to the plaintiff that she would have
to obtain it herself;
19.2.5. failed to take
statements from the car-guards … Francis and Eldridge whose
details the plaintiff had given him and
who knew who her abductors
and associates were; [and]
19.2.6. once the
plaintiff had obtained the video footage after engaging the services
of a private investigator, the third defendant
never viewed the
footage and also failed to act on the footage given to him by the
plaintiff …’
Delay
in searching the area of the sand dunes and to round-up and/or
photograph the bush dwellers
[45]
The high court found that the police officers were negligent because
they failed or delayed in
searching the area for the ‘bush
dwellers’ living in the sand dunes in the vicinity of King’s
Beach, and failed
to round up and/or photograph those ‘bush
dwellers’ to enable Ms K to attempt to identify her abductor or
to take statements
from them, or to interview them on the morning of
10 December 2010. According to the high court, this should have been
done as
the three ‘bush dwellers’ found by Gerber when he
commenced a foot search could have had critical evidence which would
have been valuable in terms of both finding Ms K and identifying her
assailant.
[46]
The finding by the high court that the police were negligent in
failing to search for ‘bush
dwellers’ living in the sand
dunes and to photograph them was wrong for two reasons. First, this
was not a complaint by Ms
K. Secondly, at that stage the
investigation was conducted by Andrews, who was responsible for the
investigation up until 13 December
2010. Ms K was happy with the work
he did.
Warrant
Officer Madubedube’s failure to obtain CCTV footage
[47]
The high court found that the only reasonable inference it could draw
was that Madubedube’s
failure to view the entire CCTV footage
was grossly negligent. This finding was based on the evidence that
Madubedube was wholly
unaware of the fact that the CCTV footage of 10
December 2010 depicted a man walking in the vicinity of King’s
Beach and
later loitering around the King’s Beach parking lot.
[48]
The conclusion of the high court was wrong, having regard to the
notes in Madubedube’s
pocket book which showed that he made
arrangements with Mr Rampo of Humewood Fire Station, to compile
compact discs of the footage
stretching from 8 December 2010 to 10
December 2010. During February 2011 he had arranged for discs to be
cut for SSG, the private
investigation company which Ms K had hired
to assist with the investigation. According to the SSG’s report
it was in possession
of the CCTV video footage in February 2011. SSG
gave Ms K a copy of the disc containing video footage, but she did
not view it,
because she was still traumatised. It was only Ms K, not
Madubedube, who could possibly identify her assailant if he appeared
on
this footage and to alert the police to that fact. It would be
reasonable that she be allowed to view the video footage at her
leisure in a less formal environment, either in the presence or
absence of private investigators of her choice.
Failure
to test DNA evidence found at the crime scene
[49]
The high court found that Madubedube and the SAPS failed to have all
DNA evidence evaluated timeously.
According to the high court the
delay was unreasonable and a breach of the SAPS’ legal duty to
conduct a reasonably effective
investigation. It is correct that a
piece of newspaper was found by Constable de Wal during his forensic
investigation of the crime
scene on the morning of 10 December 2010.
He noted that it had possible blood and semen stains on it. De Wal
sent it to the forensic
science laboratory and instructed the
laboratory to determine whether there was any blood or semen on it,
in addition to determining
whether DNA analysis would be possible. He
asked the laboratory to keep it safe. On 10 February 2011 the
laboratory addressed a
letter to Madubedube confirming that blood had
been found on the exhibit concerned and that, should the DNA analysis
be required,
the laboratory should be notified a few months in
advance of the trial date.
[50]
It is correct that no further testing or analysis was conducted in
relation to the exhibit concerned
until 20 July 2018. The police
delay in having the DNA analysis conducted in relation to the exhibit
was not, however, one of the
grounds on which Ms K sought to rely in
establishing negligence on the part of the SAPS or Madubedube. It is
therefore not a factor
which might have influenced her to institute a
claim against the police.
Wrongfulness
[51]
On the assumption that the high court’s conclusion that the
police officers were grossly
negligent in the performance of their
duties is correct, the next question is whether their omission was
wrongful. This is so because
even if it should be found that some of
the alleged omissions of the police in this matter were negligent,
the mere fact of such
negligence does not make the omissions
wrongful.
[12]
That
wrongfulness is also an essential and discrete element which has to
be established for delictual liability to ensue, was emphasised
by
this Court in
Minister
of Safety and Security v Van Duivenboden
.
[13]
Nugent JA had this to say:
‘
Negligence, as it
is understood in our law, is not inherently unlawful – it is
unlawful, and thus actionable, only if it occurs
in circumstances
that the law recognises as making it unlawful. Where the negligence
manifests itself in a positive act that causes
physical harm it is
presumed to be unlawful, but that is not so in the case of a
negligent omission. A negligent omission is unlawful
only if it
occurs in circumstances that the law regards as sufficient to give
rise to a legal duty to avoid negligently causing
harm. It is
important to keep that concept quite separate from the concept of
fault. Where the law recognises the existence of
a legal duty it does
not follow that an omission will necessarily attract liability –
it will attract liability only if the
omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this court
in
Kruger v Coetzee
,
namely whether a reasonable person in the position of the defendant
would not only have foreseen the harm but would also have
acted to
avert it. While the enquiry as to the existence or otherwise of a
legal duty might be conceptually anterior to the question
of fault
(for the very enquiry is whether fault is capable of being legally
recognised), nevertheless, in order to avoid conflating
these two
separate elements of liability, it might often be helpful to assume
that the omission was negligent when asking whether,
as a matter of
legal policy, the omission ought to be actionable.’
[52]
The high court, with reference to
Commissioner of Police of the
Metropolis v DSD and Another
[2018] UKSC 11
, found that the
errors in the search and investigation in this matter were indeed
serious, with obvious significant shortcomings.
In particular it
found Gerber’s failure to search the entire dunes area up to
the area ‘F’, and beyond to point
‘G’ marked
on exhibit ‘A’, which included the area ‘F2’
where Ms K was held captive, to have
been the most significant
shortcoming of the entire procedure.
[53]
As regards the investigation conducted by the police, the high court
found that the police officers’
failure to search, question and
investigate all bush dwellers in and around King’s Beach with
any sense of urgency from 9
December 2010 to when they were removed
from the area on 15 December 2010, was a serious and significant
shortcoming in the police
investigation. It concluded that the trust
that the public is entitled to repose in the police also has a
critical role to play
in the determination of the Minister’s
liability in this matter. Public policy and legal considerations
impose an obligation
on the police to fulfil their obligations and a
failure to do so was wrongful.
[54]
The high court’s determination of the element of wrongfulness
was flawed. It did not consider
whether it was reasonable, in the
circumstances of this case, to impose liability on the SAPS for the
harm suffered by Ms K.
[14]
The
Constitutional Court in
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[15]
considered the role that the element of wrongfulness plays in the law
of delict. It held that:
‘
[Wrongfulness]
functions to determine whether the infliction of culpably caused harm
demands the imposition of liability or, conversely,
whether “the
social, economic and other costs are just too high to justify the use
of the law of delict for the resolution
of the particular issue”.
Wrongfulness typically acts as a brake on liability, particularly in
areas of the law of delict
where it is undesirable or overly
burdensome to impose liability.’
[55]
To impose liability for the harm for which Ms K sued would make it
difficult for the police to
conduct their investigations in the
future and would expose them to the potential risk of civil
litigation in every case where
any rescue search or their
investigations are negligent, even if only to a slight degree, and a
successful arrest and conviction
of the perpetrators of serious
crimes do not ensue.
Causation
[56]
What remains to be considered is whether the wrongful omission of the
police was a cause of aggravation
of Ms K’s psychopathology. Ms
K bore the onus to prove that the alleged poor search and
investigation of the criminal case
by the police officers contributed
to, or aggravated, her psychopathology. More precisely, she was
required to establish that,
but for the poor police search and
investigation, her psychopathology would not have been
aggravated.
[16]
This is
factual causation and it is established by applying the so-called
‘but for’ test. In the case of an omission,
the enquiry
involves substituting the defendant’s conduct with a
hypothetical positive act and then asking whether, in the
latter
case, the harm-causing event would still have occurred. If this is
answered in the negative, the defendant’s conduct
was indeed a
factual cause of the plaintiff’s harm; while if answered in the
affirmative, the defendant’s conduct was
not a factual cause of
the plaintiff’s harm and
caedit
quaestio
.
[17]
[57]
It was held in
Minister
of Safety and Security v Van Duivenboden
[18]
that ‘[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 a 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’.
[58]
In
Za v
Smith and Another
,
[19]
Brand JA explained that ‘the application of the “but-for
test” … is a matter of common sense, based on
the
practical way in which the minds of ordinary people work, against the
background of everyday-life experiences. In applying
this common
sense, practical test, a plaintiff therefore has to establish that it
is more likely than not that, but for the defendant’s
wrongful
and negligent conduct, his or her harm would not have ensued’.
[59]
The existence of a relationship of factual causation between the
defendant’s conduct and
the harm suffered by the plaintiff is
not sufficient to establish the presence of a legally relevant causal
connection. An additional
test is required to determine whether the
defendant’s conduct was a legal cause of the plaintiff’s
harm. This is legal
causation. It entails an enquiry into whether the
alleged wrongful act is sufficiently closely linked to the harm for
legal liability
to ensue.
[20]
Generally, a wrongdoer is not liable for harm that was not
foreseeable.
[21]
[60]
The high court found that the element of causation was established.
The ratio for this finding
appears from the following statements in
its judgment:
‘
It
is without doubt that W/O Gerber and W/O Smith must have foreseen
that their failure to conduct the search for [Ms K] with the
diligence and skill required would have caused her damage. At that
stage they could possibly have foreseen that their omissions
could
lead to severe bodily harm and/or trauma. Not finding her in the
early hours of the morning of 10 December 2010 meant that
her
exposure to the terror and trauma of being held captive and
repeatedly raped was unnecessarily prolonged by a number of hours.
If
the SAPS had conducted a reasonably effective search of King’s
Beach, the plaintiff would have been found by 01h30 at the
latest.
Thus, she would have been spared a further four and a half hours of
her ordeal. This was almost one-third of the total
time of the
trauma, which gave rise to her injury.
Similarly,
both W/O Andrews and W/O Madubedube must have foreseen that their
failure to act swiftly and round up all bush dwellers
for
investigation, as well as to view the CCTV footage, could result in
the assailant not being found and that this would have
caused or
maintained any already existing psychiatric damage.
Thus,
“but for” SAPS’ negligent search and investigation,
the plaintiff would not suffer the injury that she currently
suffers.’
[22]
[61]
It was submitted on behalf of the police that the high court erred in
finding that there was
a causal connection between the alleged
failure of the police to conduct an effective search for Ms K and to
conduct a reasonably
effective investigation into the crimes
perpetrated against her, and her psychopathology. It was argued that
the experts were unable
to quantify the amount of trauma that Ms K
suffered as a result of the police’s omissions as opposed to
the rapes themselves.
[62]
The experts agreed in their joint minute that:
‘
Ms K has been
severely traumatised by a prolonged and life-threatening incident
occurring over 9/10 December 2010 (hereafter “the
incident”).
She sustained serious psychological and psychiatric sequelae due to
the incident. This has led to serious functional
impairment in social
and occupational domains;
. . .
The prolonged
life-threatening trauma of the incident (as described in para 2.b)
cannot be divided into subunits that are quantifiable
with any level
of psychological or psychiatric validity, as was also testified to by
Prof Subramaney …’’
[63]
I agree with the appellant’s submission. The high court erred
in making findings which
flew directly in the face of the joint
minute as well as the direct evidence by Ms K’s own expert
witness, Professor Subramaney,
regarding the issue of causation.
Professor Subramaney, a psychiatrist, conceded that it did not matter
what the correct diagnosis
was relating to Ms K’s
psychopathology, since that pathology flowed directly from the brutal
assault and rape, and that the
future treatment envisaged for her,
whatever the correct diagnosis, would be very similar. As causation
was not established on
a balance of probabilities, Ms K’s claim
should have been dismissed.
[64]
To conclude, the findings by the high court that the elements of
negligence, wrongfulness and
causation were established could not be
supported by the evidence proffered on behalf of Ms K and her claim
should have been dismissed.
[65]
As regards the issue of costs, we were urged by Ms K’s counsel
not to make a costs order
against her should we be minded to uphold
the appeal. The basis for this contention was that, by bringing an
action against the
police, Ms K is essentially asserting her
constitutional right to freedom and security and that, to mulct her
with costs should
her claim be dismissed, would have a chilling
effect not only on her, but also on members of society who might wish
to assert their
constitutional rights. I disagree. The constitutional
issue was not raised in this matter and that being the case the costs
liability
can therefore not be determined on the basis of the
Biowatch
principle.
[23]
[66]
There is therefore no reason to deviate from the general rule that
costs must follow the result.
In applying this rule I will, however,
not grant costs as sought by the appellant in para 2 of its heads of
argument, namely to
order Ms K to pay interest on costs at the
prescribed statutory rate from a date 14 days after taxation or
agreement to the date
of payment.
[67]
In the result I make the following order:
1
The appeal succeeds with costs, including the costs of two counsel
where
employed;
2
The order of the court a quo is set aside and is substituted with the
following:
‘
The plaintiff’s
claim against the defendant is dismissed with costs, such costs to
include:
(i)
the costs of two counsel;
(ii)
the costs in obtaining medico-legal reports from Dr Louise Olivier
and Dr Franco
Colin, as well as their reasonable qualifying,
travelling and accommodation expenses (if any) in connection with the
trial;
(iii)
the costs of one pre-trial inspection in loco attended by counsel;
(iv)
the costs in obtaining exhibits “A1” to “A6”;
(v)
the costs of the opposed application brought by the plaintiff before
Mageza AJ for
the separation of the issues of the quantum of damages
and causation from the other issues on the merits.’
_________________
ZONDI
JA
JUDGE
OF APPEAL
Appearances:
For
appellant:
C J Mouton SC (with him G Wolmarans)
Instructed
by:
The State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
For
respondent: T J Bruinders
SC (with him N Lewis)
Instructed
by:
Norton Rose Fulbright South Africa Inc, Sandton,
Johannesburg
Boqwana
Burns Inc, Port Elizabeth
Webbers
Attorneys, Bloemfontein
[1]
State v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5B–D.
[2]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
; 2001(4) SA 938 (CC) para 61.
[3]
See s 10 of the Constitution.
[4]
See
s 7(2) of the Constitution.
[5]
Scott
JA in
McIntosh
v Premier, KwaZulu-Natal and Another
2008
(6) SA 1
(SCA) para 12, pointed out that ‘the word “duty”,
and sometimes even the expression “legal duty”,
in this
context, must not be confused with the concept of “legal duty”
in the context of wrongfulness which, as has
been indicated, is
distinct from the issue of negligence. I mention this because this
confusion was not only apparent in the
arguments presented to us in
this case but is frequently encountered in reported cases. The use
of the expression “duty
of care” is similarly a source
of confusion. In English law “duty of care” is used to
denote both what in South
African law would be the second leg of the
inquiry into negligence and legal duty in the context of
wrongfulness. As Brand JA
observed in
Trustees,
Two Oceans Aquarium Trust
at
144F, “duty of care” in English law “straddles
both elements of wrongfulness and negligence”’.
[6]
P Q R Boberg
The
Law of Delict
(1984)
vol 1 at 24.
[7]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430.
[8]
Mashongwa
v Passenger Rail Agency of South Africa
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 40.
[9]
Mashongwa
para
41.
[10]
Mashongwa
para
41; 15 LAWSA 3 ed para 170.
[11]
K v
Minister of Safety and Security and Others
[2018]
ZAECPEHC 82;
[2019] 1 All SA 415
(ECP);
2019 (1) SACR 529
(ECP)
paras 101-104.
[12]
See
Stedall
and Another v Aspeling and Another
[2017]
ZASCA 172
;
2018 (2) SA 75
(SCA) para 11 and the cases there cited;
Za
v Smith and Another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) para 15.
[13]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 12. (Citations omitted.)
[14]
Le
Roux and Others v Dey
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) para 122.
[15]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[2014]
ZACC 28
;
2015 (1) SA 1
(CC) para 20. (Citations omitted.)
[16]
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-H.
[17]
Lee
v Minister of Correctional Services
[2012]
ZACC 30
;
2013 (2) SA 144
(CC) para 41, especially fn 77 and the
authorities there referred to.
[18]
Van
Duivenboden
above
at fn 13 para 25.
[19]
Za v
Smith and Another
above
at fn 12 para 30.
[20]
Lee
above fn 17 para 38.
[21]
De
Klerk v Minister of Police
[2019]
ZACC 32
;
2020 (1) SACR 1
(CC) para 24.
[22]
Paras 222-225.
[23]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC) paras 21 and 23.