John Matshikiza’s article ”Random radio doesn’t curb crime waves” (May 13) demands response. Not only are the facts of the case referred to incorrect, but also the writer seems to have misunderstood the legal arguments advanced by the Women’s Legal Centre on behalf of Ms K before the Constitutional Court on May 10.
The facts of K v The Minister of Safety and Security are: Ms K, a 20-year-old, found herself stranded after an altercation with her boyfriend and in need of safe passage home at 4am. Contrary to the article’s suggestion, she was not ”walking home” but at a petrol station close to the venue she had visited. While requesting the use of a phone to call her mother, one of three policemen, who were in uniform, on duty and on patrol in a police vehicle, overheard Ms K and offered to transport her home. They were not ”off duty” as the writer alleges. They then abducted, assaulted and gang-raped Ms K, later abandoning her semi-naked in the bush. Ms K was raped by the very policemen who were meant to protect her and whom she had trusted to do so.
The case raises important issues regarding state accountability for the meaningful protection of victims of gender-based violence and, more generally, gender rights.
While it is true that the Supreme Court of Appeal absolved the state of liability, holding that although the policemen had acted in the course and scope of their employment when they offered to take her home, they ceased to so act when they gang-raped her. It is precisely this judicial reasoning that was appealed against before the Constitutional Court, with reference being made to the more progressive approach already adopted in other countries in analogous cases.
Specifically, it was argued that the court erred in confining itself to the narrow inquiry of whether the policemen raped Ms K in the course and scope of their employment. We argued that the state should also have had regard for the fact that the state and the policemen have a duty under the Constitution and at common law to protect Ms K against violent crime and sexual violence and that the state and the policemen failed to discharge that duty.
The wrongs they committed against Ms K were not only that they raped her but also that they failed to protect her as they were obliged to do. The failure rendered the state liable on two grounds: (i) the state incurred direct liability for its own wrongful failure to protect Ms K; (ii) the state incurred vicarious liability for the conduct of the policemen who wrongfully failed to protect Ms K, an omission in the course and scope of their employment.
It is antithetical to the constitutional values and the state’s constitutional duty to respect, protect, promote and fulfil the rights to dignity, equality, life, freedom and security of one’s person to allow it to escape liability when it not only fails to discharge its duty to protect women against the risk of sexual violence but when its own employees, who are meant to afford them that protection, abuse their power.
While it is true that the police officers were sentenced to life imprisonment and that ”justice had not just been done, but seen to be done”, the writer has conflated the nature and purpose of criminal and civil law processes in our society. It is insulting to assert, as the writer does, that Ms K embarked on the civil law process because she ”needed to have some further acknowledgement of the scale of her pain and humiliation”. The case does not concern this but rather compensation therefore and the appropriate body on whom liability for such compensation should rightly be visited.
It misses the point to reduce either the legal principals involved or Ms K’s claim to a debate about whether ”the woman should be given a grovelling apology by the minister and some financial compensation” or simplistically to consider that ”the minister was not the one who committed the crime”.
It is also unfortunate that the writer believes ”that the Law Lords, in their wisdom, were doing precisely what they had been appointed to do — that is, sticking to the letter and the spirit of the law”. It is precisely that which was in contention before the Constitutional Court, that random radio doesn’t curb crime waves and that gang-rape, murder, robbery and personal indignation will not be abolished by starting with the minister of safety and security, the highest courts have recognised that, in certain cases, it is appropriate to visit liability on the minister for the wrongful or negligent acts of his employees, a fact the writer too fails to acknowledge.
Haley Galgut is the attorney for the appellant in the case of K v The Minister of Safety and Security