F v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 15 December 2011
• Citation: 2013 (2) SACR 20 (CC)
• Docket Number: CCT 30/11 [2011] ZACC 37
• Hearing Date: 04 August 2011
• Counsel: LM Olivier SC for the applicant. RT Williams SC (with JA van der Schyff) for the first respondent. No appearance for the second respondent. H Barnes (with S Wilson) for the first amicus (the Institute for Security Studies). M Chaskalson SC (with D Smit) for the second amicus (the Institute for Accountability in Southern Africa Trust). K Pillay for the third amicus (the Trustees of the Women's Legal Centre).
• Court: Constitutional Court

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring):

Introduction E

[1] This is an application for leave to appeal against the judgment of the Supreme Court of Appeal. [1] It raises the question whether the Minister of Safety and Security [2] (Minister) should be held vicariously liable for damages arising from the brutal rape of a 13-year-old girl by a policeman F who was on standby duty.

[2] In the determination of that question, the state's constitutional obligations to respect, protect and promote the citizen's right to dignity, and to freedom and security of the person [3] would have to be taken into account. Equally relevant is the state's establishment of a police service G for the efficient execution of its constitutional obligations to prevent, combat and investigate crime, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. [4]

[3] The trust that the public is entitled to repose in the police also has a critical role to play in the determination of the Minister's vicarious liability in this matter. H

[4] In the event of the Minister being held liable, it would be necessary to ensure that that decision does not effectively give rise to state liability for all delictual acts committed by the police. I

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

Parties A

[5] The applicant is Ms F. She was 13 years old at the time of the delictual act that gave rise to this litigation, and has since reached the age of majority.

[6] The first respondent is the Minister. The second respondent is B Mr Allister Claude van Wyk, who was employed as a policeman by the South African Police Service [5] (police service) at the time of the attack on Ms F.

[7] Three amici curiae were admitted. The first is the Institute for Security Studies, the second is the Institute for Accountability in C Southern Africa Trust and the third is the Trustees of the Women's Legal Centre.

Background

[8] Ms F went to a nightclub in George on 14 October 1998. In the early D hours of 15 October 1998, she needed, and was offered, a lift home by Mr Van Wyk, which she accepted. There were two other passengers in the vehicle. One of them was known to her.

[9] At the time, Mr Van Wyk was on standby duty. [6] This means that he E could, at any time of that night, have been called upon to attend to any

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

crime-related incident if the need arose. He had been given possession of A an unmarked police vehicle to enable him to discharge any police functions that he might have been required to perform whilst on standby duty. It may be added that he was paid the prescribed hourly tariff for being on standby duty. The vehicle was equipped with a police radio, which Ms F noticed before she accepted the lift from Mr Van Wyk. B

[10] When they left the nightclub, Ms F was seated on the back seat of the vehicle with one of the other passengers. After the other passengers had been dropped off at their respective homes, Ms F moved to the front passenger seat, at Mr Van Wyk's request. It was then that she saw a pile of police dockets bearing the name and rank of Mr Van Wyk. When she C asked him why there were police dockets in his vehicle, he replied that he was a private detective. Ms F understood this to mean that he was a policeman.

[11] Contrary to his undertaking to drive Ms F home, Mr Van Wyk drove towards Kaaimansrivier, away from her home. He told Ms F that D he wanted to see his friends first. This detour caused Ms F to become suspicious of Mr Van Wyk's true motives. When they approached Kaaimansrivier, Mr Van Wyk stopped the vehicle at a dark spot. As a result of her suspicions, Ms F alighted from the vehicle, ran away and hid herself from him. After a wait, Mr Van Wyk left. E

[12] Ms F later emerged from hiding, stood next to the road and hitchhiked. A vehicle stopped next to her. It turned out to be the same vehicle she had just alighted from. Mr Van Wyk again offered to take her home. Ms F relented, albeit reluctantly, owing to her desperate situation. F

[13] In her evidence, she said that the fact that she believed Mr Van Wyk to be a policeman played a role in allaying her fears, because she 'trusted' him (hom vertrou het) as, at that stage, she thought he was a detective. She chose to repose her trust in a person of whom she was suspicious because she understood him to be a policeman. G

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

A [14] While on their way to her home, Mr Van Wyk unexpectedly turned off the road near Kraaibos. Ms F attempted to escape again. This time Mr Van Wyk was able to prevent her from fleeing. He then assaulted and raped her. Thereafter, he took her to her home. In an attempt to secure her silence, he threatened to harm or even kill her should she report the B attack to anybody.

[15] Despite these threats, Ms F laid criminal charges against Mr Van Wyk. He was convicted of assault and rape and sentenced to undergo 12 years' imprisonment, of which five years were suspended.

C [16] In December 2005, Ms F reached the age of majority. Thereafter she instituted an action for damages against the two respondents in the Western Cape High Court, Cape Town (high court).

In the high court

D [17] By agreement between the parties, the merits and the quantum of damages were separated and the high court was asked to pronounce itself only on the merits.

[18] The court, per Bozalek J, [7] found the Minister vicariously liable for the damages suffered by Ms F as a result of Mr Van Wyk's delictual E conduct. It applied the test laid down in K v Minister of Safety and Security [8] (K) and held that there was a sufficiently strong link between Mr Van Wyk's actions and his employer's business to justify the imposition of vicarious liability. It relied on the following factors in support of its conclusion:

(a)

Mr Van Wyk was in possession of a police vehicle. This provided F him with the means to commit the offences and was the 'single most important connection' [9] between the business of the employer and the commission of the crime.

(b)

The fact that Ms F understood Mr Van Wyk to be a policeman to some extent operated to lull her suspicions that he might be a G danger to her. In other words, it gave her some basis for trusting Mr Van Wyk, in spite of her suspicions.

(c)

The coincidence between the nature of the assistance that Mr Van Wyk pretended to offer and the normal obligations of members of the police service, which is, in particular to protect vulnerable H groups such as women and children.

[19] Bozalek J was alive to the Minister's fear that a finding in favour of Ms F could open the floodgates to the state's strict liability for delictual acts committed by the police. He dealt with this concern on the basis that I the K test was sufficiently flexible to allow a case-by-case determination

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

of the issues. The Minister took the matter on appeal to the Supreme A Court of Appeal, which reversed the high court decision for the reasons set out below.

In the Supreme Court of Appeal

[20] Nugent JA, writing for the majority, [10] held that the state was not B liable because —

(a)

The conclusion in K that the state was liable was based only on the delictual omission of the on-duty policemen involved.

(b)

An intentional delictual commission like rape cannot attract the state's vicarious liability. Accordingly, K, properly understood, held C that the state was not vicariously liable for the positive delictual acts of the police officials, but only for their acts of omission. And the same should obtain in this case. Because Mr Van Wyk was not on duty, [11] he, unlike the policemen in K, could not be considered to have D been engaged in the business of the police service and to have breached his duty to protect Ms F when he committed the rape.

(c)

An off-duty police official has no duty to protect members of the public and cannot therefore be held personally liable for his or her failure to protect a victim of crime from the harm that occurs in his or her presence. This is so because the police do not have an E ongoing duty to protect members of the public. And in the absence of a duty on Mr Van Wyk to protect Ms F from harm while he was off duty, there could be no personal liability on him for omitting to do so.

[21] The majority's reasoning was thus based on an understanding that F the finding of vicarious liability in K was premised only on the fact that the policemen in that case had committed a delict of omission. This they did by failing to protect Ms K while they were on duty and under an obligation to do so.

[22] The majority judgment rejects any notion that a policeman could be G said to be 'engaged in the affairs or business of his employer' [12] when he commits rape or that rape could even be regarded as an 'improper mode' [13] of exercising the authority conferred on him by his employer. [14] The majority also reasoned that the positive delictual act of rape was not H

Mogoeng J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring)

A one of the bases for the outcome in K. That is how the majority judgment distinguished K from this case. The decision of the high court was, for these reasons, set aside.

[23] Maya JA, writing for the minority, [15] said that although the rape had nothing to do with the performance of Mr...