Extended Delictual Liability of the Police in Gender- based Violence cases: Examining the Constitutional Court’s Judgment in AK v Minister of Police
DATES: 16 August 2022
LOCATION: Zoom Meeting
Please RSVP to naomi@saifac.org.za in order to receive the link to the seminar
About the event:
DESCRIPTION:
AK v Minister of Police involved the question of delictual liability of the Minister of Police in relation to alleged negligent omissions of the South African Police Service (SAPS) in respect of their search and subsequent investigation into the serious crimes committed against Ms AK. The crimes occurred on 9 December 2010 when Ms AK was attacked, robbed of her personal belongings, held in captivity and repeatedly raped for approximately 15 hours. The Constitutional Court had to consider whether the SAPS’ failure to conduct an effective search to find the applicant while the crimes were being committed and, thereafter, to conduct a reasonably effective investigation to hold the perpetrators accountable, was wrongful in terms of the law of delict and in the light of the state’s constitutional obligation to eradicate gender-based violence. While the Supreme Court of Appeal answered this question in the negative, on appeal the majority of the Constitutional Court held that the SAPS breached its statutory and constitutional duties owed to Ms AK because the mistakes in the search and investigation were significant and therefore ought to be actionable. The majority further held that a failure to impose liability on the SAPS would have a chilling effect on the ability of survivors of gender- based violence to vindicate their rights. The majority accordingly held that wrongfulness as well as the other elements of a delict had been established (a dissent contested these views).
THIS SEMINAR WILL SEEK TO INVESTIGATE THE FOLLOWING QUESTIONS:
Is the reasoning of the majority convincing?
What are the implications of the Constitutional Court’s judgment from the perspective of the South African law of delict?
What advancements in respect of women’s rights have been made through this judgment?
What role, if any, does this judgment play in developing the state’s obligation to protect women against the scourge of gender-based violence?
Is delictual liability likely to improve the performance of the SAPS in relation to gender-based violence?
Is delictual liability an adequate, fair and effective mechanism to address gender-based violence and the shortcomings of police action in this regard?