Rape victim speaks on her 10-year battle for justice and why she took the SAPS to ConCourt
Johannesburg - More than a decade ago in the aftermath of the euphoria around South Africa’s successful hosting of the 2010 Soccer World Cup, the dreams of Joburg businesswoman Andy Kawa came crashing down after she was raped in a 15-hour ordeal on a beach in the Eastern Cape.
She was visiting her former hometown to finalise the purchase of a house for her mom and with time to spare before returning to Joburg on 9 December 2010, decided to park her car and go for a walk at about 2pm on King’s Beach. And thus began her decade-long nightmare.
According to court papers, in broad daylight she was assaulted, robbed of her personal belongings and dragged into the bushes on the inland side of the beach by an unknown man. The man ordered her to walk with him to the sand dunes. In fear of her life, she did as ordered. When they got to the dunes, the assailant instructed her to take off her clothes, blind-folded her with them and raped her.
For the rest of the afternoon, she was raped several times. At the time, she thought it was the same man who was simply changing his pants between the rapes, later she came to believe that it had been more than one assailant and that she had in fact been gang-raped.
At around sunset the original assailant returned. The plaintiff knew this because he spoke to her and she recognised his voice. He remained for the rest of the night throughout which he continued to rape her. And he continued to threaten her life.
She remembered things she had read about other women who had survived similar ordeals. She decided to do whatever she needed to do to survive. She engaged him in conversation in the hopes of dissuading him from raping her further or from killing her.
When Kawa failed to return home to collect her friend who would accompany her to the airport and missed her flight she was reported missing by a relative. An alert went out from the SAPS. At around 11.30pm, the night before her car was found at the Kings Beach car park by members of the Humewood SAPS. It had been broken into.
The relevant police units were activated and the investigation into the incident commenced. Kawa managed to escape from her abductor(s) in the early hours of 10 December 2010 and sought the assistance of a group of men who were out for an early morning jog.
She was taken to the King’s Beach parking lot and then to the Humewood police station by one of the joggers. Altogether, she had been held captive in the sand dunes and consistently raped over a period of approximately fifteen hours.
Kawa subsequently began a ten-year battle for justice. The perpetrators of the crime have still not been arrested.
Then in 2018, Kawa went to court alleging that the SAPS wrongfully and negligently breached its duty to investigate the crimes committed against her; alternatively, if they did so investigate, they failed to do so with the skill, care and diligence required of reasonable police officers. As a result of this Kawa said that the SAPS have caused her psychological injury and are liable for damages.
A ruling by Acting Judge Sarah Shepton that the police should be held responsible for the trauma Kawa had incurred was overturned after SAPS successfully appealed the finding before the Supreme Court of Appeal and won on 6 May 2020.
On Tuesday Kawa launched a final bid for relief from the Constitutional Court which saw her traumatic ordeal played out once more as she sought justice on an original claim against the Minister of Safety and Security for alleged negligence on the part of his employees.
After judgment was reserved by Chief Justice Mogoeng Mogoeng this week, Kawa told The Sunday Independent that it has been the longest 10 years of her life. “There has been continued struggles of highs, lows and in-betweens. I'll know the outcome in three to six months, so it is another wait so that the Constitutional Court decides whether the SAP mishandled my case. What’s ironic though is that the perpetrators have still not been arrested, yet I must prove to the courts that those who handled my case were not negligent,” she said.
Last October, as part of healing, Kawa bared her soul in a book, Kwanele, Enough! published by NB Publishers. But it has not been easy.
“As a business woman it’s still difficult for me to function optimally with what I’m going through. When my funds were depleted, law firm, Norton Rose Fulbright SA continued to support me. It’s tough but I remain grateful for the financial, emotional and physical support I receive from friends and family. It’s difficult,” she said.
Expert evidence before the court showed that the traumatic incident has had a debilitating effect on Kawa and that every aspect of her life has been changed by it. According to the court papers it was not in dispute that because of the traumatic incident, she has suffered a severe and enduring psychological injury.
It was also not in dispute that because of the perceived or actual paucity of the investigation and delay in finalising the investigation and bringing the perpetrator(s) to book, the psychological injuries have worsened.
Kawa said she was not sure police have learned from the poor handling of her trauma. “If their incompetence is defended and funded by us the taxpayers, that is how I've experienced it. The sad reality is that the billions spent on campaigns to encourage women to 'speak out' can never be effective if the police don't investigate and the courts don't convict - our bodies will continue to be crime scenes; the violent crimes will continue to plague us. That’s our sad reality as women in this country.,” she said.
“I've survived a horrendous painful experience that changed my life forever. So, when justice is delayed it puts me in limbo, the re-traumatisation, the re-victimisation. If the ConCourt rules in my favour, it is not only for me, but it could bring about change on how women who’ve been and are continuing to fight the same issues keep hope alive in their fight for justice.
For as long as the perpetrators are still not arrested there is still no justice for me, she added.
*This article was originally published in the Sunday Independent