5 December 2023
A transgender woman who claims she was raped when police put her in the same cell as male inmates in 2016 has been trying for years to sue the Minister of Police for damages in the Western Cape High Court. Archive photo: Ashraf Hendricks
A transgender woman who is suing the Minister of Police for damages after she says she was sexually assaulted and raped in police holding cells seven years ago, will have to wait a bit longer to hear her fate.
On 5 December 2016, Debbie* was arrested following an altercation with a relative. She was 18 years old at the time.
She was taken to the Grabouw Police Station and was placed in the holding cells with three male prisoners, even though she says she told police that she is transgender and identifies as a woman. She said no officers checked on the prisoners for hours during her detention overnight.
Debbie says in papers filed before the Western Cape High Court that she was sexually assaulted by one of the male detainees in her cell, and thereafter “raped in a manner of anal penetration” by another male detainee. She did not pursue criminal charges, she says, because she did not trust the police officers at Grabouw police station.
But on her release from custody, members of the Triangle Project took her to Hermanus Hospital for evaluation.
According to the court papers filed by Debbie, a medical exam on 6 December 2016 by a Dr Hendriks, confirmed anal penetration. She was given injections to protect her against sexually transmitted diseases and treatment to prevent HIV, as well as medication for pain, anxiety and sleeping difficulties.
With help from Lawyers for Human Rights, Debbie issued a civil claim against the Minister of Police on 19 November 2019. She argued that SAPS members had acted in “direct contravention of the SAPS Western Cape Standard Operational Procedure for the Detention of Transgender Prisoners, which prescribes that all transgender persons should be detained in separate detention facilities at the police station”. If there is no separate facility, they must be taken to another facility elsewhere in the policing cluster.
According to court documents, the minister missed the deadline to file his papers, and as a result he was barred by the court from filing a plea on 25 February 2020.
The minister appealed against this, asking for a late filing to be condoned, and arguing that between February 2020 and April 2022, the police had been busy conducting consultations with relevant police officers, tracing inmates detained with Debbie and acquiring her ID “to confirm her transgender status”.
But in a judgment delivered on 27 September 2023, Acting Judge Willem van Heerden ruled against the minister’s request to file a plea. Van Heerden said it was difficult to understand why the minister “required 26 months” to get evidence from his own employees and to get a copy of Debbie’s ID from the Department of Home Affairs, from the Custody Register or from Debbie’s attorneys.
He said the minister had not provided a satisfactory explanation for the delay.
He said Debbie formed part of a “vulnerable category of persons in our society” and had already faced “unreasonable frustration and prejudice” because of the delays.
Judge Van Heerden said it was not in the interests of justice to allow the minister a further opportunity to file a plea. “The reasons for the dismissal of this application, in particular, the lackadaisical approach adopted by the applicant in pursuing its investigations, securing evidence and the bringing of this application for condonation warrants a cost order.”
On 1 December, the parties returned to the High Court, where the minister sought leave to appeal Judge van Heerden’s ruling. The minister’s lawyers argued that the officials who arrested Debbie and those who were at the station at the time “had no knowledge of the respondent’s sexual orientation” and that Debbie had not told them she was transgender to enable them to take the necessary steps regarding her detention.
Judgment was reserved.