A 30-year-old Port Shepstone property agent is suing the minister of safety and security for more than R400 000, claiming that the police endangered her life by not forewarning her that she was about to be kidnapped, instead using her as “bait” and leaving her at the mercy of an armed and dangerous man.

In the case before the Durban High Court, Carmen Bircher is claiming the police were negligent by making a conscious decision to let the kidnapping happen.

The points raised are similar to those in the decided Constitutional Court case in which Alix Carmichele successfully sued the ministers of justice, and safety and security after she was attacked by a man who had been let out on bail on a rape charge and who had a previous conviction.

Because of the same “duty of care” issues, Bircher’s attorney, Neerajh Ghazi, has briefed Port-Elizabeth-based advocates Petrus de Bruyn and Barry Pienaar, who argued the Carmichele case.

In the pleadings before Judge Ron McLaren, Bircher said the police were obliged to protect her, particularly in circumstances where they had been informed of the crime and of when and where it was to be committed.

Instead, they had allowed the crime to happen and she had been attacked, had a gun pointed at her head, threatened that she would be shot and had been injected with a post anaesthetic tranquilliser.

She had escaped by “barefooting” it over a 3,5m fence and had hidden in long grass from where she had been coaxed out by police who had been waiting on the other side.

Her claim is for past and future medical expenses – mainly for psychological counselling – and for pain and suffering.

In her evidence this week, the blonde-haired woman described how in October 2001 she had been lured to a vacant property in Oslo Beach, Port Shepstone, by a man calling himself Craig who said he wanted to hire a jumping castle from her.

She had put the deflated castle in her red bakkie and had driven there with her fiance, Warren Jesson. But the gate had been locked and “Craig” had not arrived.

While waiting, Jesson’s cousin, Deon Whateley, had driven by and stopped to chat.

Later that day “Craig” telephoned again and asked her go back to the property to deliver the castle. This time she went alone and the gates were open. She had driven in and had been attacked by a gun-wielding man who was wearing blue overalls, a balaclava and a gas mask.

What she did not know at the time was that her attacker was Deon Whateley. And that the police were aware that he was planning to kidnap “a woman hiring out jumping castles” that day and keep her in a “dungeon” until ransom was paid. Superintendent Dougie Hanneway of the area commissioner’s office in Port Shepstone, confirmed on Wednesday that the police had been tipped off by Wayne de Winnaar, Whateley’s colleague, about the crime.

He said some days before De Winnaar had told them that Whateley, who was financially desperate, was planning to kidnap “any child” from the beach, sedate it and keep it in a tent near a river.

With no specifics about the crime, police had twice staked out the river, but nothing had happened.

When informed about the plan to kidnap “a woman who sells jumping castles” on October 10, Hanneway said he had formed a task team and devised a plan which would result in the arrest of Whateley, whom he considered “a menace”.

The plan had been approved by the management.

“The principal purpose was not to prevent the kidnapping but to arrest Whateley. However, the instruction was not to allow any harm to come to the victim.

“I had no charge against him unless we allowed him to start the kidnapping. There had to be some physical interference and that’s where the risk came in. But he had to be stopped before it went too far and the main thing was the injection,” he said.

Hanneway claimed the police did not know the intended victim or what vehicle she would be driving.

The agreement was that De Winnaar would leave the gate to the property open so the police, including one trained as a paramedic, and members of the dog unit had access, he said.

However, De Winnaar reneged on the deal and shut the gate. Under cross-examination, Hanneway said he had not wanted to forewarn Bircher because she would probably not have wanted to go through with the ordeal.

“To have told her would have placed 250 000 children (on the South Coast) in jeopardy. I have a duty to protect the public at large, not just an individual in controlled circumstances,” he said, repeating that Whateley was a “loose cannon” who had previously threatened to kidnap children.

It was put to him that had he approached Whateley before the attempted kidnapping, he would have found the syringe containing the substance, the gas mask, the balaclava and he would have had the evidence of De Winnaar which would have been enough to arrest and charge him.

But Hanneway said that was only known now, not before the crime was committed. The case has been set down for seven days after which it is likely judgment will be reserved.

Whateley was arrested on the same day. He pleaded guilty and received a sentence of 1 200 hours of community service. De Winnaar is abroad and will not testify at the trial.

This article was originally published on page 6 of The Mercury on November 23, 2006

Source: The Mercury
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