F v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Bozalek J
• Judgment Date: 26 June 2009
• Citation: 2010 (1) SA 606 (WCC)
• Docket Number: 4194/2006
• Counsel: LM Olivier for the plaintiff. JA van der Schyff for the defendants.
• Court: Western Cape High Court, Cape Town

Bozalek J: D

[1] Plaintiff, a 24-year-old woman, sued the defendants for damages arising out of her being assaulted and raped in October 1998 at or near Kraaibos in the district of George when she was 13 years of age. First defendant, the Minister of Safety and Security, is cited in his capacity as E the erstwhile employer of the second defendant, Mr Allister van Wyk (to whom I shall refer hereafter as 'Van Wyk'), the former policeman responsible for the rape and assault.

Cause of action

F [2] In her particulars of claim plaintiff alleged that first defendant was vicariously liable for Van Wyk's intentional delicts in the form of the assault and rape, in that he was 'acting within the course and scope of his employment as a policeman in the employ of the South African Police Service' (hereinafter referred to as the 'SAPS'). She also alleged that Van Wyk was, at the material time, on duty, being on 'bystand'. It was alleged G further that he commenced duty on 14 October 1998 at 07h30 and went off duty on 15 October 1998 at 07h30. The assault and rape were alleged to have taken place in the early hours of the morning of 15 October 1998.

[3] In his plea first defendant, whilst admitting that Van Wyk was on H stand-by during the period in question, denied that he was on duty merely by virtue of this fact. It was denied, furthermore, that in committing the delicts Van Wyk was acting within the course and scope of his employment. Van Wyk did not defend the action, although he testified on behalf of first defendant.

I [4] In a request for trial particulars, first defendant required plaintiff to state on what factual and legal basis she relied in alleging that Van Wyk was acting within the course and scope of his employment. In view of later objections to certain evidence led on behalf of plaintiff, it is worthwhile setting out plaintiff's response to these requests. Plaintiff firstly set out Van Wyk's then status as a serving member of SAPS and the J facts that he was on stand-by and in possession and control of a motor

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vehicle issued to him by his employer, which vehicle he used to transport A the plaintiff to the spot where he assaulted and raped her. Plaintiff also relied on the existence of certain criminal convictions which Van Wyk had incurred prior to the assault and rape, as well as the fact that on the night in question plaintiff had been stranded and had been offered a lift home by Van Wyk. Plaintiff went on to aver that in committing the B assault and rape Van Wyk had infringed her rights to dignity and security and, inasmuch as there was an intimate connection between the delicts committed by Van Wyk and the purposes of SAPS, this close connection rendered first defendant vicariously liable. In making these latter averments plaintiff expressly relied on the provisions of the Constitution, the C mission statement of SAPS and the SAPS code of conduct.

Admissions made

[5] Prior to the hearing the parties agreed that the merits and quantum of the claim would be separated and that the court would initially be D required to determine whether first defendant was vicariously liable for Van Wyk's actions. Although not expressly stated, the court was also required to determine Van Wyk's liability, since the action against him was not abandoned. Whilst expressing their intention to lead evidence, the parties also placed before court the following list of admissions by first defendant: E

'1.

During the period 14 October 1998 at 16h00 up to and until 15 October 1998 at 07h30 (the relevant period):

Second Defendant was a Detective Sergeant, employed by First Defendant. F

Second Defendant was on stand-by.

Second Defendant was in possession and control of a white Nissan Sentra, with registration number CAW15946 (the vehicle) and the vehicle was a Police vehicle. There were Police dockets in the vehicle when Plaintiff was a passenger in the vehicle.

2. 2.1

On or about 14 October 1998, and after dark in the District of George, Plaintiff was driven by Second Defendant to G Kaaimans and back to George in the motor vehicle driven by Second Defendant.

2.2

Thereafter, and on or about 14/15 October 1998, and at approximately midnight on 14 October 1998, alternatively the early hours of the morning of 15 October 1998, and in the vicinity of Kraaibos, next to the N2 road between George and H the Wilderness, Second Defendant unlawfully assaulted Plaintiff.

2.3

On or about 14/15 October 1998, and at approximately midnight on 14 October 1998, alternatively the early hours of the morning of 15 October 1998, and in the vicinity of I Kraaibos, next to the N2 roadway, as aforesaid, Second Defendant, having first assaulted her, wrongfully and unlawfully raped Plaintiff, having overcome Plaintiff's resistance by the assault as set out above.

2.4

In and as a result of the assault and rape as set out above, Plaintiff sustained bodily injuries. J

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3.

A On 15 October 1998 at approximately 08h44, Second Defendant had the vehicle filled with fuel to the value of R45 for the account of First Defendant.

4.

First Defendant paid for this fuel. The vehicle was fuelled at George Police Station, at which was housed a petrol pump where SAPS vehicles could be refuelled.

5. 5.1

B Plaintiff was the Complainant in a criminal case MAS397-10-98 and that employees of First Defendant investigated such complaint.

5.2

Second Defendant was charged with rape and assault with the intention to do grievous bodily harm, as a result of the injuries sustained by the Plaintiff during the relevant period.

5.3

C Second Defendant was convicted of the rape of Plaintiff and sentenced to 12 years, whereof five years were suspended by the High Court.'

The evidence

D [6] Plaintiff's evidence dealt mainly with the circumstances in which she came to accept the lift from Van Wyk, an account of the events leading up to the assault and the rape and the aftermath thereto, and the question of the extent to which she believed, at the time, that he was a policeman. Plaintiff also led the evidence of a former policeman, Mr Johan van Dyk, concerning his practical experience of stand-by duty. E First defendant called a former provincial commissioner of police, Mr Andre du Toit, to testify on the selfsame subject and also called Van Wyk to explain the circumstances in which he committed the rape and the assault, with particular reference to the question of whether he was on duty at the time or not.

F [7] Plaintiff testified that she had visited a nightclub in Conville, George, on the night in question with two girlfriends to play pool and dance. She had an argument with one of them and decided that she wanted to go home. Outside in the parking lot a man asked her what was wrong and offered her a lift home in a vehicle. That person was Van Wyk and the G vehicle was a white Nissan driven by him, but belonging to SAPS. Because plaintiff had known one of the other two occupants she had accepted the lift. She had also noticed that there was a police radio in the vehicle. After Van Wyk had dropped off the last of the other two occupants, plaintiff moved into the front passenger seat. Instead of taking plaintiff home, Van Wyk told her that he wanted to go to H Kaaimansriver to see if his friends were still there.

[8] Plaintiff became suspicious of Van Wyk's intentions, however, and under the pretext that she needed to relieve herself, climbed out of the vehicle at Kaaimansriver and ran away and hid herself. After emerging I from her hiding place, she made her way to the road and began to hitchhike. It was now around midnight. The first vehicle to stop was, however, the white unmarked Nissan driven by Van Wyk who again offered to take her home. She got into the vehicle and they set off in the direction of George. Shortly thereafter, in the vicinity of Kraaibos, Van Wyk turned off the road and prevented her from jumping out of the J moving vehicle. When it came to a halt plaintiff again tried to escape but

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was followed closely by Van Wyk. In this dark and lonely spot Van Wyk A first severely assaulted plaintiff and then raped her. Afterwards, he drove her home, telling her that the vehicles which were following were his bodyguards and that if she disclosed anything of what had happened she would be harmed or killed. When she arrived home plaintiff eventually disclosed to her mother what had happened. It is common cause that the B following morning plaintiff laid criminal charges with the police in George and furnished them with a sworn statement.

[9] There are two aspects of plaintiff's evidence which require special focus: firstly, the question of whether she believed she was dealing with a policeman, and, secondly, at what stage she formed this belief. C Plaintiff's evidence in this regard turned around three aspects, namely, the presence of a police radio, the presence of criminal dockets in the vehicle and what Van Wyk allegedly told her regarding his occupation.

[10] Plaintiff testified that, as early as when she was standing alongside the vehicle in the parking lot outside the nightclub, she noticed that it D was equipped with a police radio. Thereafter, when she moved to the front seat, she noticed criminal dockets in the front passenger footwell and on them read Van Wyk's name. When she asked him what the dockets were doing in the car, Van Wyk told her he was a private detective. In her mind, however, she saw no distinction between a private detective and a policeman, and formed the belief that Van Wyk was a E policeman as a result of having seen the radio, the dockets and his having told her he was a detective.

[11] According to plaintiff this information had caused her to trust Van Wyk and to drive further with him. Notwithstanding this, it was plaintiff's...